Update on Recent Pennsylvania Decision Regarding Effectuating Proper Service
A Lackawanna county judge recently ruled against dismissing a premises liability action where Defendant Sean Burnham wasn’t served until nearly two months after the statute of limitations for the claims against him expired.
On July 3, 2022, plaintiff Brenda Doherty fell “due to a defective and dangerous stairwell” when she was an invited guest at Burnham’s residence. The plaintiff and her husband then instituted an action by filing a Writ of Summons on June 11, 2024 and delivering the summons to the Lackawanna County Sheriff to be served upon Burnham as required by Pa.R.Civ.P. 400. On June 17, 2024, the Deputy Sheriff filed a return of service, indicating he was unable to serve Burnham on June 13, 2024 as he no longer resided at that residence. This return of service was forwarded to the Dohertys’ counsel by ordinary mail and was received on June 28, 2024, with 5 days left in the two-year statute of limitations statute of limitations.
Upon receipt of the return of service, plaintiff’s counsel immediately attempted to locate Burnham’s current address. Once the current address was discovered, the Writ of Summons was reissued on August 9, 2024, and subsequently redelivered to the Sheriff for personal service upon Burnham. The process was successfully served upon Burnham on August 21, 2024.
Burnham subsequently filed a preliminary objection, seeking to dismiss the action under Pa.R.Civ.P 1028(a)(4), on the grounds that the plaintiffs failed to effectuate service of process upon him prior to the two year statute of limitations and within the requisite 30 days prescribed by Pennsylvania law. The Dohertys responded to the objection asserting that they made diligent efforts to serve the original process and did so within the 30 day statute of limitations for the reissued writ pursuant to Pa.R.Civ.P 401.
Judge Terrence Nealon relied on Pennsylvania precedent in making his ruling, first citing the ruling made in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), where the Supreme Court of Pennsylvania found that a duly filed writ or complaint “shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery… just set in motion.” He also acknowledged Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 594, 511 A.2d 757, 759 (1986), which established that Lamp requires a good faith effort to effectuate notice of an action, and the Farincacci plaintiffs failed to provide an explanation for their counsel’s inadvertence that could substantiate a finding of good-faith effort when the plaintiffs forgot the pay the sheriff to serve their writ for four weeks, during which the statute of limitations expired.
Judge Nealon then expanded on how Pennsylvania courts have developed somewhat conflicting interpretations of the service requirements over time. See Teamann v. Zafris, 811 A.2d 52 (Pa. Cmwlth. 2002)(holding rigid compliance with the Rules of Civil Procedure is required in order to satisfy the Lamp test); See also Leidich v. Franklin, 394 Pa. Super. 302, 575 A.2d 914 (1991)(holding the plaintiff’s obligation to make a good-faith attempt at service under Lamp necessitated inquiry into “whether a plaintiff engaged in a ‘course of conduct’ forestalling the legal machinery put in motion by [their] filings,” or instead inadvertently furnished notice of the suit in a defective manner that did not affect any substantial rights of the defendant); See also McCreesh v. City of Philadelphia, 585 Pa. 211, 888 A.2d 664 (2005) (holding the Teamann compliance requirement is incompatible with Pa.R.Civ.P. 401 and finding that Leidich should control, and in applying Lamp, to only dismiss claims where plaintiffs have demonstrated an intent to stall the judicial process or where their failure to comply with the Rules of Civil Procedure have prejudiced the defendant); see also Gussom v. Teagle, 665 Pa. 189, 247 A.3d 1046 (2021)(holding McCreesh did nothing to modify a plaintiff’s duty in acting diligently to serve notice of the commencement of an action as to not undermine the polices that derive the statute of limitations).
In resolving such conflict, Judge Nealon ultimately looked to the recent case of Ferraro v. Patterson-Erie Corp., 313 A.3d 987 (Pa. 2024). In Ferraro, the plaintiff filed a complaint on March 4, 2020, for negligence when she slipped and fell at a Burger King, and the statute of limitations expired on August 26, 2020. The plaintiff made one unsuccessful attempt at service of process, and then chose to informally notify Burger Kind of the lawsuit by hiring a private process server to deliver a copy of the original and un-reinstated Complaint. Almost 70 days after the statute of limitations would have expired but for the filing of the original Complaint, the plaintiff reinstated same on November 3, 2020 and instructed the Sherriff to effectuate service on Burger King, which was accomplished on November 30, 2020. The trial court thereafter denied Burger King’s motion for judgment on the pleadings based upon the expiration of the statute of limitations and the Superior Court affirmed the ruling. However, in granting Burger King’s petition for allowance of an appeal, the Supreme Court of Pennsylvania raised that the Complaint and instructions for service were not reinstated until over two months after the original statute of limitations had expired, and the plaintiff produced no evidence to account for the lack of effort to effectuate service or the failure to seek leave of court to utilize an alternative method of service. As such, the plaintiff failed to meet her burden of demonstrating she made a good faith effort to diligently and timely serve process on Burger King.
Considering Pennsylvania precedent, Judge Nealon found the record reflected the Doherty’s attempts to serve Burnham were diligent, timely, and did not evince their intent to stall the judicial process, noting their compliance with Pa.R.Civ.P 400 and Pa.R.Civ.P. 401. As such, defendant Burnham’s preliminary objection was overruled, and his responsive pleading to the Complaint was ordered to be filed within 20 days in accordance with Pa.R.Civ.P 1026.