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HomeMy WebLinkAbout98-6970 CivilKRYSTAL WISMER, PLAINTIFF V. JESSICA JOHNSTON, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-6970 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND HESS, J. OPINION AND ORDER OF COURT Bayley, J., December 11, 2003:-- On December 16, 1996, plaintiff, Krystal Wismer, was a passenger in a vehicle struck by a vehicle driven by defendant, Jessica Johnston. Plaintiff instituted this suit by a writ of summons on December 10, 1998. On December 14, 1998, defendant, who was in the Commonwealth, signed for the writ of summons by certified mail. She turned the writ over to her insurance carrier. A representative of the carrier wrote to plaintiff's counsel on February 23, 1999, acknowledging receipt of the writ. She sought information about the case and stated that: "We hope to resolve this matter without further litigation." On November 29, 1999, the representative wrote to plaintiff's counsel indicating that she had received the information requested, and a demand. She stated: "It is evident that we are nowhere near settlement range for this matter." Notwithstanding, she made an offer of settlement and stated: [i]t appears unlikely that this case would settle, however if your client wishes to accept our offer, please advise and we will forward our release 98-6970 CIVIL TERM in settlement. Please know that this offer is rescinded upon filing of a complaint. (Emphasis added.) On May 22, 2000, plaintiff filed a praecipe to reissue the writ of summons. On June 19, 2000, the sheriff served the writ on defendant. On March 12, 2001, plaintiff filed a complaint. On April 12, 2001, an appearance was entered by defense counsel. On April 23, 2001, defendant filed a preliminary objection, raising the defense of the statute of limitations, on the basis that service of the original writ of summons by certified mail did not comply with the Rules of Civil Procedure. On September 13, 2001, the preliminary objection was overruled "without prejudice to raise the matter of the expiration of the statute of limitations in an answer with new matter." On October 22, 2001, plaintiff filed an answer with new matter raising the statute of limitations as a defense. On December 12, 2002, defendant filed a motion for summary judgment. The following issues were briefed and submitted on October 22, 2003: (1) Should plaintiff's complaint be dismissed because she failed to make valid timely service of the writ of summons prior to the expiration of the statute of limitations, and failed to reinstate the writ of summons until approximately seventeen (17) months after the statute of limitations has expired, thereby prejudicing defendant. (2) Whether plaintiff's case should be dismissed, with prejudice, because plaintiff failed to effectuate proper service on defendant prior to the expiration of the statute of limitations. -2- 98-6970 CIVIL TERM DISCUSSION The statute of limitations is two years from the date of the accident on December 16, 1996. 42 Pa.C.S. § 5524(2). The last date for initiation of suit was December 15, 1998. Pa. Rule of Civil Procedure 400(a) provides, with some exceptions not applicable here, that "original process shall be served within the Commonwealth only by the sheriff." Rule 401(a) provides that, "Original process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Rule 401(b)(1) provides that, "the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ .... " Rule 401(b)(2) provides that, "A writ may be reissued.., at any time and any number of times." In Lamb v. Heyman, 469 Pa. 465 (1976), the plaintiff filed a praecipe for a writ of summons four days before the expiration of a two-year statute of limitations. Instead of delivering the writ to the sheriff for service, plaintiff's counsel instructed the prothonotary to "Issue & Hold." Thirty-one months after the date of the accident, a praecipe for the reissuance of the writ was filed together with a complaint. Again no service was made, and this time no reason appeared of record. Within two months of the reissuance of the writ, another praecipe for reissuance was filed, and service was effectuated on June 19, 1970. The Supreme Court of Pennsylvania stated: ·.. there is too much potential for abuse in a rule which 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 -3- 98-6970 CIVIL TERM reissued in a timely fashion without attempting to effectuate service. Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations. Accordingly,... we rule that henceforth, [that]... 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. (Emphasis added.) In Leidich v. Franklin, 394 Pa. Super. 302 (1990), an automobile accident with a two-year statute of limitations occurred on April 4, 1986. On January 4, 1988, a writ of summons was filed. It was served on the defendant by first-class mail on January 5, 1988. From March 15 through April 4, 1988, plaintiff's counsel provided documents to defendants' insurer with regard to possible settlement of the claim on a policy limits' basis. On April 4, 1988, plaintiff's counsel was informed that the case was being contested on "technical grounds involving alleged deficiencies in the service of the writ of summons." On May 17, 1988, after the passage of the two year statute of limitations, the writ of summons was reissued. The sheriff served it that day on defendant. The defendant, citing Lamb v. Heyman, supra, maintained that the suit was barred by the statute of limitations. The Superior Court of Pennsylvania stated: What is to be gleaned from Lamp and its progeny is that: (1) one's "good faith" effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis; and (2) the thrust of all inquiry is one of whether a plaintiff engaged in a "course of conduct" forestalling the legal machinery put in motion by his/her filings. See Lamp, supra; Jacob v. New Kensington Y.M.C.A., 312 Pa. Super. 533, 459 A.2d 350 (1983). Further, we do not read Lamp, and the cases -4- 98-6970 CIVIL TERM interpreting and applying it, to espouse a mechanical approach to the "good faith" effort rule such that it allows for no exceptions in the face of an explanation and/or conduct which evidences an unintended deviation from the "notice' requirement. (Emphasis added.) The Court concluded: [w]e find that the defect in service has not affected any substantial rights of the defendants, nor is there any allegation that the defendants were prejudiced by the manner in which they received notice of the lawsuit. See Justice ZAPPALA's Dissenting Opinion in Farinacci, [v. Beaver County Industrial Development Authority, 510 Pa. 589 (1986)]. More importantly, consistent with Lamp's teachings, we cannot in good conscience equate the plaintiff's attorney's actions with a "course of conduct which serve[d] to stall" the machinery of justice. For example, once the writ was mailed to the defendants, communication with and the submission of documents to their liability carrier began. Even the initial stages of discovery (notice of deposing the defendants) were underway before being discontinued at the behest of the defendants' counsel. Thus, we do not view the plaintiff's actions as a "course of conduct' to be condemned under the guise of Lamp (an "issue & hold" case). Yet, we caution that, in reversing the order of the court below, we in no way wish to signal to the bench and bar our approval of the circumvention of the Pennsylvania Rules of Civil Procedure and local practice. We are merely holding that, under the particular facts here, Lamp's "good faith" effort to notify the defendants was established in tandem with the absence of a "course of conduct" attributable to the plaintiff evidencing a stalling of the machinery of justice. (Emphasis added.) In Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001 ), plaintiff was injured in an accident at the Holmesburg Prison on September 17, 1994. On September 12, 1996, he filed a writ of summons. An attempt to serve the writ was unsuccessful. The process service did not file either a return of service or a return of no service. On May 7, 1997, plaintiff filed a complaint, indicating the action had been commenced by a writ of summons on September 12, 1996, and that pursuant to Pa. -5- 98-6970 CIVIL TERM Rule of Civil Procedure 401 (b)(5) the complaint was to be treated as the equivalent of a reissued writ. The complaint was not served until June 3, 1997. The defendant filed preliminary objections asserting that the failure to serve the writ within thirty days or reissue it effectively ended the extension of the two-year statute of limitations which expired on September 17, 1996. The trial court sustained a preliminary objection and ordered the service stricken, effectively terminating Witherspoon's action on account of the statute of limitation. In affirming an order of the Commonwealth Court that upheld the order of the trial court, the Supreme Court of Pennsylvania, in a plurality opinion supported by two justices, stated that for a writ of summons to toll an applicable period of limitations, "the process must be immediately and continually reissued until service is made." Two justices dissented from the lead opinion entirely, and three justices concurred in the result "based upon the plaintiff's failure to effectuate service upon [defendant] for a period of nine months." The plurality opinion in Witherspoon is not precedent. Furthermore, in Witherspoon, the defendant did not receive any notice of the lawsuit until eight and a half months after the statute of limitations had run. In the present case, as in Leidich, the writ was filed before the statute of limitations ran. In Leidich, the writ of summons was received by the defendant by first-class mail before the statute of limitations ran. In the present case, the writ was received by the defendant by certified mail before the statute of limitation ran. In Leidich, an exchange of documents with the defendant's insurer began two and one-half months after the defendant had received the writ of -6- 98-6970 CIVIL TERM summons. Here, the insurer contacted plaintiff's counsel two months and one week after the writ of summons was received by defendant. As in Leidich, an exchange of information then incurred. In the present case, the insurer specifically sought information about the case and stated: "we hope to resolve this matter without further litigation." On November 29, 1999, the insurer, while rejecting plaintiff's demand, made a counteroffer. Plaintiff rejected the counteroffer and reissued the writ of summons on May 27, 2000, after the statute of limitations had run. The writ was served by the sheriff on June 19, 2000. Like the Superior Court in Leidich, we do not view plaintiff's action as a course of conduct to be condemned under the guise of Lamb. On these facts, which are close to those in Leidich, plaintiff's good faith effort to notify the defendant was established in tandem with the absence of conduct evidencing a stalling of the machinery of justice.~ While defendant had pleaded that she has been prejudiced there are not facts to support such a conclusion. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2003, the motion of defendant for ~ That is not to say that there is no difference in the two cases. In Leidich, plaintiff reissued the writ of summons on May 17, 1988, a little less than a month and a half after being informed on April 4, 1988, that the case was being contested on grounds involving the service of the writ of summons. In the present case, the writ of summons was reissued on May 22, 2000, just short of six months after the insurer sent the counteroffer on November 29, 1999, that was rejected. The point, however, is that the case was not stalled for lack of notice, albeit by defective service of the writ, that was nevertheless responded to by defendant's insurer who sought to reach settlement -7- 98-6970 CIVIL TERM summary judgment, IS DENIED. "without further litigation." -8- 98-6970 CIVIL TERM By the Court, Roger S. Spalding, Esquire 1600 Market Street 5th Floor Philadelphia, PA 19103 For Plaintiff Stephen E. Geduldig, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Defendant :sal Edgar B. Bayley, J. -9-