stating that the plaintiffs’ claims could be dismissed, for lack of service of original process, only where “plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.”
How later courts described this case
- stating that the plaintiffs’ claims could be dismissed, for lack of service of original process, only where “plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.”
- holding, that “[n]either 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” of the lawsuit notwithstanding procedurally defective service
- holding that filing a writ of summons tolls the statute of limitations unless “plaintiffs have demonstrated an intent to stall the judicial machinery [ ] plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.”
- stating that plaintiff’s claims could be dismissed only where “plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.”
Written by the judges who cited it.
Distinguished
Distinguished by Fraisar v. Gillis, 2006 Pa. Commw. LEXIS 65 (2006)
888 A.2d 664, 666 (Pa. 2005) (emphasis added), distinguished by Fraisar v. Gillis, 892 A.2d 74, 78
The opinion
Justice NEWMAN,
dissenting.
I agree with the position that Mr. Justice Eakin articulates in his Dissenting Opinion that the failure of Appellant to comply with the rule regarding service of original process precludes a finding that he acted in good faith sufficient to toll the statute of limitations.
The Majority notes that the most recent holding of this Court with respect to the issue sub judice is the plurality decision in Witherspoon v. City of Philadelphia, 564 Pa. 388 , 768 A.2d 1079 (2001). (Majority Opinion at 223-25, 888 A.2d at 672). The Majority states that in Witherspoon “[fjive justices affirmed the dismissal of a complaint finding that the plaintiff did not act in good faith where he made only one unsuccessful attempt to serve the defendant in nine months.” Id. I dissented in Witherspoon and write separately now only to elucidate my position in Witherspoon as it relates to my consideration of the instant case.
In Witherspoon , I stated that:
a correct reading of Lamp requires only that a plaintiff attempt in good faith to serve the particular process issued within the limitations period and that, so long as the plain *229 tiff acted in good faith by complying with the rules for service of process, he or she should benefit from the “equivalent period”.... 1
Id. at 1087 (Newman, J., dissenting) (emphasis in original). I objected to the fact that the Opinion Announcing the Judgment of the Court in Witherspoon abolished the equivalent period doctrine, and, by doing so, required a plaintiff to make continuous efforts to serve a defendant beyond the one attempt in order to keep the matter alive. Id. Also, I noted that the plaintiff in Witherspoon may well have established good faith based on my view that his use of a private process server, rather than the Sheriffs Department, was permitted by the Rules of Civil Procedure for service within the City of Philadelphia. However, my view differed from the Opinion Announcing the Judgment of the Court, which determined that the writ was not served within the time period required by the rules. Id. at 1083.
I dissented in Witherspoon because I opposed the abolition of the equivalent period doctrine and because I believed it possible that the plaintiff in that matter may have established good faith by complying with the rules of service. However, I reiterated that Lamp requires only that a plaintiff “acted in good faith by complying with the rules for service of process ....” Id. at 1087. Compliance with the rules of service was of paramount importance to me in my analysis in Wither-spoon.
In the case before us, I have no such reservations about the method of service effectuated by Appellant because it clearly did not comport with the rules for service of process in Philadelphia. As a result, Appellant’s failure to comply with the appropriate rule warrants the conclusion that he did not act in good faith and that the statute of limitations with respect to his action was not tolled. For that reason, I would affirm the Order of the Commonwealth Court.
. The issue of the "equivalent period” was the focus of the decision of this Court in Witherspoon and is not involved in the instant matter.