C. Collins v. City of Philadelphia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Crystal Collins, :

:

Appellant :

:

v. : No. 259 C.D. 2019

: Argued: November 14, 2019

City of Philadelphia :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: July 9, 2020

Crystal Collins (Appellant) appeals from the November 6, 2018 order

of the Court of Common Pleas of Philadelphia County (trial court) granting the

motion for summary judgment filed by the City of Philadelphia (City). We affirm.

On October 17, 2015, Appellant sustained injuries when she slipped

and fell in Love Park, a park located in the City. On November 9, 2015, Appellant

mailed a notice of her intention to commence an action against the City under

Section 5522 of the Judicial Code, 42 Pa. C.S. §5522 (Section 5522 Notice). On

May 5, 2016, the City acknowledged receiving the Section 5522 Notice, assigned a

claim number, and requested additional information from Appellant regarding her

fall. On December 28, 2016, Appellant provided additional information to the

City.

Appellant filed a civil complaint against the City on October 10,

2017, a few days before the two-year statute of limitations expired. Section 5524

of the Judicial Code, 42 Pa. C.S. §5524. However, Appellant did not attempt to

serve the complaint within 30 days as required by Pennsylvania Rule of Civil

Procedure (Pa. R.C.P.) No. 401(a). Approximately nine months later, on July 5,

2018, Appellant filed a petition to reinstate the complaint. Pa. R.C.P. No.

401(b)(1), (2). On July 6, 2018, Appellant served the reinstated complaint on the

City.

In the trial court, complaints alleging damages of less than

$50,000.00 are scheduled for hearings before an attorney arbitration panel.

Philadelphia Civil Rule No. 1301. On July 13, 2018, at the City’s request,

arbitration was continued and rescheduled for September 17, 2018. On July 30,

2018, the City filed an answer to the complaint and new matter, asserting as a

defense the statute of limitations. The City subsequently filed a motion for

summary judgment, which the trial court dismissed as untimely because the

pleadings were not closed. The matter proceeded to arbitration on September 17,

2018, at which time Appellant agreed to the City’s request for a continuance.

On September 26, 2018, the City filed a second motion for summary

judgment, arguing that the complaint was not timely filed under the rule set forth in

Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) (Lamp rule). The trial court agreed and

concluded that Appellant’s action was barred by the applicable statute of

limitations. The trial court granted the City’s motion by order dated November 6,

2018. Appellant filed an appeal with Superior Court, which transferred the matter

to this Court by order of March 8, 2019. Section 762(a)(1)(i), (7) of the Judicial

Code, 42 Pa. C.S. §762(a)(1)(i), (7).

On appeal, Appellant argues that: (1) she filed her complaint within

the statute of limitations; (2) the trial court failed to consider that the City suffered

2

no prejudice as the result of the delay in service; and (3) the City waived any

objection to defective service by failing to file preliminary objections.

Preliminarily, our Supreme Court has observed:

[The] purpose of any statute of limitations is to expedite

litigation and thus discourage delay and the presentation

of stale claims, which may greatly prejudice the defense

of such claims. To this end, our legislature has enacted

statutes of limitations that require actions to be

commenced[1] within certain time-frames depending on

the nature of the underlying claims. . . .

It is self-evident that once the action has been

commenced, the defendant must be provided notice of

the action in order for the purpose of the statutes of

limitation to be fulfilled. Therefore, this Court has set

forth rules governing service of original process to ensure

such notice. . . .

[Pa. R.C.P. No.] 401 limits the time between filing and

service. Specifically, subsection (a) requires service of

original process within thirty days of the issuance of the

writ. If a plaintiff fails to comply with subsection (a), the

claim remains valid so long as the plaintiff complies with

the procedures of subsection (b), which allows for

reissuance of the writ at any time and any number of

times. Thus, the plain language of the rule allows a

plaintiff to commence an action, thereby satisfying the

statute of limitations, and yet to delay the provision of

notice of the claim to the defendant interminably, thus

undermining the purpose of the statute of limitations.

McCreesh v. City of Philadelphia, 888 A.2d 664, 671 (Pa. 2005) (citations and

quotations omitted and emphasis added); see Lamp, 366 A.2d at 888-89.

In Lamp, the Supreme Court addressed the potential for abuse

inherent in Pa. R.C.P. No. 401. The plaintiff in Lamp allegedly was injured on

1

A matter is “commenced” by filing with the prothonotary a complaint or a praecipe for

a writ of summons. Pa. R.C.P. No. 1007.

3

September 1, 1967. Her attorney filed a praecipe for a writ of summons on August

28, 1969, within the two-year statute of limitations. However, the attorney

instructed the prothonotary to hold the writ; consequently, it was not delivered to

the sheriff’s office and it was not served. On April 9, 1970, the plaintiff filed a

praecipe for the reissuance of the writ and a complaint endorsed with a notice to

plead. Again, service was not effectuated, but the record did not indicate the

reason. On June 4, 1970, the plaintiff filed another praecipe for reissuance of the

complaint and it was served on June 19, 1970. Thereafter, the defendants filed

preliminary objections, asserting that the original summons was a nullity because

of the plaintiff’s “issue and hold” instructions to the prothonotary, and that the

action therefore was not brought within the two-year statute of limitations.

The defendants also filed a complaint against additional defendants,

who filed an answer and new matter raising the statute of limitations as a defense.

The plaintiff replied to the new matter and admitted giving the “issue and hold”

instructions. The trial court heard oral argument, sustained the preliminary

objections, and entered judgment for the defendants. The Superior Court affirmed.

On further appeal however, the Supreme Court reversed. The Court noted that the

plaintiff filed the praecipe and validly commenced the action on August 28, 1969.

The Court held that the trial court’s ruling was not supported by Pa. R.C.P. No.

10072 or case law and reversed.

2

The Court observed:

Pa. R.C.P. [No.] 1007 in pertinent part provides: “An action may

be commenced by filing with the prothonotary (1) a praecipe for a

writ of summons. . . .” This Court has repeatedly held that,

pursuant to this rule, the mere filing of a praecipe to commence an

action is sufficient to toll the running of the statute of limitations

(Footnote continued on next page…)

4

Nevertheless, the Supreme Court concluded that, as written and

construed, the rule allowed too much potential for abuse. The Court explained that

the rule “permits a plaintiff to keep an action alive without proper notice to a

defendant merely by filing a praecipe for a writ of summons and then having the

writ reissued in a timely fashion without attempting to effectuate service.” Lamp,

366 A.2d at 888 (emphasis added). Consequently, the Supreme Court in Lamp

qualified the rule, intending “to avoid a situation where the plaintiff commences an

action but, by failing to make a good-faith effort to notify the defendant, retains

exclusive control over it for a period in excess of that permitted by the statute of

limitations.” 366 A.2d at 889 (emphasis added).

Accordingly, pursuant to our supervisory power over

Pennsylvania courts, we rule that henceforth, i.e., in

actions instituted subsequent to the date of this decision,

(continued…)

and that, although Pa. R.C.P. [No.] 1009(a) provides that a writ

shall be served within thirty days after issuance or filing, it may,

pursuant to Pa. R.C.P. [No.] 1010(a), be reissued at any time after

the original issuance during a period equivalent to that permitted

by the applicable statute of limitations for the commencement of

the action; further, each valid reissuance gives rise to a new

equivalent period during which the writ may again be reissued.

See, e.g., Ehrhardt v. Costello, [264 A.2d 620 (Pa. 1970)]; Salay v.

Braun, [235 A.2d 368 (Pa. 1967)]; Zarlinsky v. Laudenslager, [167

A.2d 317 (Pa. 1961)]. Thus, in the instant case, it is clear that if

appellant validly commenced her action so as to toll the running of

the statute when she filed her praecipe on August 28, 1969, her

action is not barred by the statute of limitations, since she

effectuated service of a writ reissued well within two years from

both the date when she filed her original praecipe in August and

the date when she had the writ reissued the following April.

Lamp, 366 A.2d at 885.

5

a writ of summons 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 he has just set in motion. Since the manner in

which writs of summons are to be prepared and delivered

to the sheriff for service is not covered by our rules and

since there are differences among the judicial districts of

Pennsylvania in the procedures followed in these matters,

a plaintiff should comply with local practice as to the

delivery of the writ to the sheriff for service. If under

local practice it is the prothonotary who both prepares the

writ and delivers it to the sheriff, the plaintiff shall have

done all that is required of him when he files the praecipe

for the writ; the commencement of the action shall not be

affected by the failure of the writ to reach the sheriff’s

office where the plaintiff is not responsible for that

failure. Otherwise, the plaintiff shall be responsible for

prompt delivery of the writ to the sheriff for service. Cf.

Pa. R.C.P. [No.] 1009.

Lamp, 366 A.2d at 889 (emphasis added and footnote omitted).

Subsequently, in Farinacci v. Beaver County Industrial

Development Authority, 511 A.2d 757, 759 (Pa. 1986), the Supreme Court clarified

its holding in Lamp and held that, in order to fall within the Lamp rule, a plaintiff

must make a good faith effort to effectuate notice of the commencement of the

action. In Farinacci, the plaintiffs’ counsel filed a praecipe for a writ of summons

on the last day of the limitations period. Instead of arranging for the sheriff to

serve the writ, counsel misplaced the file and then forgot to arrange for service of

the writ before it expired. The writ was reissued and served on the defendants

nearly two months after the original writ was issued. The defendants filed

preliminary objections claiming that the statute of limitations was not tolled. In

response, the plaintiffs challenged the propriety of the defendants’ raising the issue

on preliminary objections. The trial court sustained the defendants’ preliminary

objections and dismissed the action. The Superior Court affirmed.

6

After noting the procedural irregularities, the Supreme Court held in

Farinacci that a praecipe for a writ tolled the limitations period only where the

plaintiff did not engage in conduct that stalled the process. The Court determined

that neglecting the file for more than a month after it was misplaced reflected that

the plaintiffs’ counsel did not satisfy the requirement to make a good faith effort to

accomplish notice of the action’s commencement. Additionally, the Supreme

Court made clear that the good faith requirement discussed in Lamp requires

affirmative action:

[E]ight or nine days of the delay was attributable to

counsel’s simply misplacing the file. Such is not

necessarily inconsistent with a finding of good faith. The

remaining four weeks’ delay is attributable only to

counsel’s faulty memory. As plaintiffs have failed to

provide an explanation for counsel’s inadvertence [that]

could substantiate a finding that plaintiffs made a good

faith effort to effectuate service of the writ, we are

constrained to hold that the order of the [trial court]

granting [the] defendants’ preliminary objections and

dismissing [the] plaintiffs’ action was not an abuse of

discretion . . . .

Farinacci, 511 A.2d at 759-60 (emphasis added).

Subsequently, in McCreesh, the Supreme Court again addressed

“what constituted a good faith effort by a plaintiff to effectuate notice to a

defendant of the commencement of an action.” 888 A.2d at 665. In that case, the

plaintiff filed a praecipe to issue a writ of summons within the two-year statute of

limitations and attempted to serve the City by sending the writ to the City’s Law

Department by certified mail. The City acknowledged receipt. Three months later,

the plaintiff filed a complaint, requested reissuance of the writ, and properly served

the City Law Department through a competent adult hand delivery. Pa. R.C.P.

Nos. 400.1 and 402.

7

The City filed preliminary objections asserting that the service of the

first writ did not comply with Pa. R.C.P. No. 400.1, and, therefore, the complaint

was untimely filed. The trial court overruled the City’s preliminary objections. On

further appeal, the Commonwealth Court held that the plaintiff did not establish a

good faith effort to effectuate service under the Lamp rule because the plaintiff did

not comply with the local rules relating to service.

The Supreme Court reversed. The Court first observed that, in

applying Lamp and its progeny, Commonwealth and Superior Courts had

“formulated inconsistent rules,”3 some requiring strict compliance with rules

governing service in order to satisfy the good faith required under Lamp and

Farinacci, and others providing a more flexible approach, “excusing plaintiffs’

initial procedurally defective service where the defendant has actual notice of the

commencement of the litigation and is not otherwise prejudiced.” 888 A.2d at 666.

The Court in McCreesh concluded:

Neither our cases nor our rules contemplate punishing a

plaintiff for technical missteps where he has satisfied the

purpose of the statute of limitations by supplying a

defendant with actual notice. Therefore, we embrace the

logic of the [cases], which, applying Lamp, would

dismiss only those claims where plaintiffs have

demonstrated an intent to stall the judicial machinery or

where [a plaintiff’s] failure to comply with the Rules of

Civil Procedure has prejudiced [a] defendant.

McCreesh, 888 A.2d at 674. The Court reversed the Commonwealth Court’s

decision because the plaintiff had supplied the City with actual notice and

remanded for a determination as to whether the City suffered prejudice due to the

delay in effectuating service.

3

See 888 A.2d at 673-74.

8

In Daniel v. City of Philadelphia, 86 A.3d 955 (Pa. Cmwlth. 2014),

this Court reviewed a factually similar case, albeit without reference to McCreesh.

The plaintiff in Daniel allegedly was injured on June 19, 2010. On May 22, 2012,

the plaintiff filed a personal injury complaint against the City. She did not serve

the complaint. On January 29, 2013, more than seven months after the statute of

limitations expired, the plaintiff reinstated her complaint, and she served the City

on February 1, 2013.

The City did not file preliminary objections. The City filed an answer

and new matter asserting that the statute of limitations had expired. Thereafter, the

City filed a motion for judgment on the pleadings, alleging that the plaintiff failed

to serve the complaint before the statute of limitations expired, thus barring her

cause of action.

The trial court granted the City’s motion for judgment on the

pleadings, and this Court affirmed. Citing Lamp and Farinacci, we observed that,

in order to toll the statute of limitations, a plaintiff must make a good faith effort to

serve the complaint in a timely manner. Daniel, 86 A.3d at 957. We reasoned that

the plaintiff validly commenced her action when she filed her complaint on May

22, 2012, just within the two-year period, but, as in this case, the plaintiff did not

attempt to serve this complaint on the City. Consequently, we concluded that the

plaintiff failed to toll the statute of limitations, and when she reinstated the

complaint on January 29, 2013, the statute of limitations had expired. See also

Hite v. Southeastern Pennsylvania Transportation Authority (Pa. Cmwlth., No.

1101 C.D. 2018, filed April 5, 2019), slip op. at 5 (“under long-standing

9

Pennsylvania precedent, a plaintiff must make a good-faith attempt to serve

original process within 30 days in order to toll the statute of limitations”).4

Appellant argues that the trial court erred in granting summary

judgment based on the following assertions.5 First, Appellant contends that she

served her complaint within the required statute of limitations. More specifically,

Appellant asserts that she filed the (original) complaint on October 10, 2017, and

served the (reinstated) complaint on July 6, 2018. However, in making this

argument, Appellant relies on decisions wherein the statute of limitations was

tolled, and those cases are factually and procedurally distinguishable. See, e.g.,

Smith v. City of Philadelphia, 609 A.2d 823 (Pa. 1971) (service of joinder

complaint was attempted); Fox v. Thompson, 546 A.2d 1146 (Pa. Super. 1988)

(service was attempted, but defendant concealed its address to avoid service); and

Sherry v. Trexler-Haines Gas, Inc., 541 A.2d 341 (Pa. Super. 1988) (service was

attempted).

Further, while the trial court decided this matter based on the Lamp

rule, Appellant makes absolutely no reference to Lamp and related cases.

Instead, Appellant asserts that her effort to effectuate service was in

good faith because it was caused by inadvertent error on the part of her counsel’s

paralegal. The trial court notes that Appellant did not attach any affidavit or

4

An unreported panel decision of this Court issued after January 15, 2008, may be cited

for its persuasive value and not as binding precedent. Section 414(a) of the Commonwealth

Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).

5

This Court’s review of an order granting summary judgment is limited to considering

whether the trial court erred or abused its discretion. Hoover v. Stine, 153 A.3d 1145, 1153 n.9

(Pa. Cmwlth. 2016). “Summary judgment may only be granted when, after examining the record

in the light most favorable to the non-moving party, the record clearly demonstrates that there are

no genuine issues of material fact and the moving party is entitled to judgment as a matter of

law.” Id.

10

provide any other evidence to support this contention, which was made within

Appellant’s answer to the motion for summary judgment. Consequently, this

unsupported contention is not part of the record that the trial court considered when

deciding the motion for summary judgment. Pa. R.C.P. No. 1035.1.

More importantly, in accord with the Courts’ holdings in Farinacci

and Daniel, a “good faith effort” requires, at a minimum, some affirmative

conduct. See also Chruszczyk v. City of Philadelphia (Pa. Cmwlth., No. 513 C.D.

2014, filed November 6, 2014), appeal denied, 116 A.3d 606 (Pa. 2015) (holding

that delay in service due to counsel’s oversight did not excuse the plaintiff’s failure

to timely serve the defendants or provide them with actual notice of the

commencement of litigation).6 To the extent Appellant relies on a paralegal’s

alleged mistake as reason to toll the statute of limitations, Appellant’s position is

contrary to well-settled law.

Appellant next asserts that the City has not suffered prejudice due to

the untimely service of the complaint. Appellant argues that, assuming service was

6

In Chruszczyk, slip op. at 10-11, this Court explained:

Following the Supreme Court’s decision in Lamp, where a plaintiff

institutes an action by writ of summons, the plaintiff must make a

good-faith effort to serve the defendants in a timely manner in

order to toll the statute of limitations. Although there is no

mechanical approach to determine what constitutes a good-faith

effort, the plaintiff bears the burden demonstrating his efforts were

reasonable. Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d

423 (Pa. Super. 1995). However, an overt attempt at delay is not

necessary to constitute bad faith. Ferrara v. Hoover, 636 A.2d

1151 (Pa. Cmwlth. 1994). “Simple neglect and mistake to fulfill

the responsibility to see that requirements for service are carried

out may be sufficient to bring the rule in Lamp to bear.” Id. at 1152

(citation omitted).

11

untimely, the trial court nevertheless erred because the City did not show prejudice

caused by the Appellant’s delay. Appellant again relies on cases that are factually

and procedurally distinguishable.7 Further, the question of prejudice arises only if

a plaintiff uses procedurally defective service but still manages to provide the

defendant actual notice of the litigation in a timely manner. McCreesh, 888 A.2d

at 666, 674. Because Appellant did not attempt service in a timely manner, we

reject Appellant’s assertion that the City was required to demonstrate prejudice to

establish that the complaint is time-barred under Lamp.

Appellant also maintains that the notice sent on November 9, 2015,

pursuant to 42 Pa. C.S. §5522, sufficed as notice, as it provided the City detailed

information concerning Appellant’s fall and alleged injuries. However, notice of

intent to commence an action is simply not notice that an action has been

commenced. Nagy v. Upper Yoder Township, 652 A.2d 428, 431 (Pa. Cmwlth.

1994). In Nagy, we expressly held that a notice of intention to file suit against a

defendant did not serve to notify the defendant that a suit had been commenced,

and consequently, the plaintiff’s failure to serve the writ on the defendant within

the applicable limitations period “was within the prohibition of Lamp and its

progeny.” Id. See also McCreesh, 888 A.2d at 672 n.17.

Appellant argues that the City took actions on the merits of the case

and is therefore barred from objecting to what Appellant mischaracterizes as

“defective service.” Appellant asserts that because the City did not file preliminary

7

See e.g., Byard F. Brogan, Inc. v. Holmes Electric Protective Co., 460 A.2d 1093 (Pa.

1983) (untimely filing of reply brief to motion for summary judgment); Valley Peat v. Humus

Sunnylands, Inc., 581 A.2d 193 (Pa. Super. 1990) (prejudice to the adverse party is a prerequisite

to the entry of judgment of non-pros).

12

objections, but instead requested a continuance of arbitration and filed an answer

and new matter, the City waived objections regarding service.

As the City correctly observes, a statute of limitations defense is

properly raised in new matter, not preliminary objections. Daniel, 86 A.3d at 957-

58 (rejecting the assertion that the statute of limitations defense should have been

raised in preliminary objections). The City also notes that the basis for its initial

request for a continuance of arbitration was the fact that it had just been served

with the complaint. Consequently, Appellant’s waiver argument fails.

In sum, where non-compliance with Lamp is alleged, the

determination of whether a party made a good faith effort to effectuate notice is

within the sound discretion of the trial court. McCreesh, 888 A.2d at 672;

Farinacci, 511 A.2d at 759. Here, the trial court determined that Appellant failed

to make a good faith effort to effectuate timely service of the complaint that was

filed on October 10, 2017, but not served on the City until July 6, 2018.

Pennsylvania courts hold that the burden to demonstrate good faith

under Lamp remains with the plaintiff. Consistent with the above decisions,

inadvertent failure to effectuate service, without anything more, is insufficient to

demonstrate good faith under Lamp. The trial court properly concluded that

Appellant’s action was barred by the applicable statute of limitations.

Accordingly, we affirm.

MICHAEL H. WOJCIK, Judge

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Crystal Collins, :

:

Appellant :

:

v. : No. 259 C.D. 2019

:

City of Philadelphia :

ORDER

AND NOW, this 9th day of July, 2020, the order of the Court of

Common Pleas of Philadelphia County, dated November 6, 2018, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge