Williams, J. v. Shannon, H. ( 2021 )

J-A25016-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES C. WILLIAMS, M.W., A : IN THE SUPERIOR COURT OF
MINOR, BY JAMES C. WILLIAMS, : PENNSYLVANIA
GUARDIAN AND FATHER, AND J.W., :
A MINOR, BY JAMES C. WILLIAMS, :
GUARDIAN AND FATHER :
:
Appellant :
:
: No. 2083 MDA 2019
v. :
:
:
HUNTER SHANNON AND JOHN :
PRESTON SHANNON :
Appeal from the Order Entered November 26, 2019
In the Court of Common Pleas of Cumberland County Civil Division at
No(s): 2017-08018 Civil
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED MAY 21, 2021
Appellant, James C. Williams, appeals from an order entered on
November 26, 2019 in the Civil Division of the Court of Common Pleas of
Cumberland County.1 We affirm.
____________________________________________
1 Appellant filed a complaint against Hunter Shannon and John Preston
Shannon (collectively “the Shannons”), asserting claims on his own behalf and
on behalf of his two minor children, M.W. and J.W. On April 5, 2019, the trial
court entered summary judgment in favor of the Shannons and against
Appellant on the claims Appellant asserted on his own behalf. Thereafter, on
November 26, 2019, the trial court entered an order that approved
settlements on behalf of the minor children, M.W. and J.W. Since the order
entered on November 26, 2019 disposed of all remaining claims against all
parties, that order constitutes a final order over which this Court may exercise
jurisdiction. See Pa.R.A.P. 341(a) and (b) (providing that appeals may be
taken as of right from a trial court’s final order, defined as an order that
J-A25016-20
We briefly summarize the relevant facts and procedural history of this
case as follows. On August 20, 2015, Appellant and his two minor children
were involved in a car accident with a vehicle operated by Hunter Shannon2
in Cumberland County, Pennsylvania. Appellant filed a praecipe for writ of
summons against the Shannons on August 17, 2017. Upon review of the
record, and relevant to the current appeal, counsel for Appellant and an
adjuster from Nationwide Insurance (Nationwide), the Shannon’s insurance
carrier, communicated regarding potential litigation. On August 22, 2017,
counsel for Appellant sent an email to Nationwide and attached a copy of the
writ of summons. Nationwide, in turn, sent a letter to John Preston Shannon
dated August 22, 2017, stating that a lawsuit may be filed against him.3
Appellant thereafter filed a praecipe to reissue the writ of summons, which
reissued on March 3, 2018. On March 29, 2018, Appellant filed a complaint.
Appellant subsequently filed amended complaints on April 25, 2018 and May
21, 2018. The Shannons filed preliminary objections to all three complaints.
____________________________________________
disposes of all claims and of all parties); see also 42 Pa.C.S.A. § 742
(conferring jurisdiction in Superior Court over appeals from final orders
entered in the courts of common pleas). The minor children are not parties
to the current appeal.
2 John Preston Shannon owned the car that his son, Hunter Shannon, was
driving at the time.
3 There is no evidence that the writ sent to Nationwide was actually forwarded
to the Shannons. In fact, as will be discussed, there is no record evidence
that the Shannons ever received the writ of summons or a copy thereof.
-2-
J-A25016-20
On August 28, 2018, the Shannons filed an answer and new matter to
Appellant’s second amended complaint. In September 2018, the Shannons
sent Appellant requests for admissions. In response, Appellant admitted that
he did not forward the writ of summons to the sheriff for service.4
On November 16, 2018, the Shannons filed a motion for partial
summary judgment, arguing they were entitled to relief as a matter of law
with regard to Appellant because the statute of limitations barred his claims.5
Appellant filed a response on February 14, 2019.6 The trial court heard
argument on February 15, 2019. On April 5, 2019, the trial court granted
____________________________________________
4 Moreover, there is no record evidence that Appellant properly served the
Shannons with the writ of summons after Appellant’s admission.
5 The Shannons’ motion asserted that because the accident occurred on
August 20, 2015 and because a two year limitations period, pursuant to 42
Pa.C.S.A. § 5524, applied to the claims asserted on behalf of Appellant, the
complaint filed on March 29, 2018 fell outside the statutory filing period.
There is no dispute that the children’s cause of action remained viable (at this
time) because the statute of limitations did not bar those claims. See 42
Pa.C.S.A. § 5533(b)(1)(i) (“If an individual entitled to bring a civil action is an
unemancipated minor at the time the cause of action accrues, the period of
minority shall not be deemed a portion of the time period within which the
action must be commenced. Such person shall have the same time for
commencing an action after attaining majority as is allowed to others[.]”).
6 In his response, Appellant argued that a copy of the writ of summons had
been provided to Nationwide and that Nationwide had notified the Shannons
of pending litigation. Appellant’s Brief in Opposition to Partial Summary
Judgment, 2/14/2019, at *4 (unpaginated). Appellant asserted that “as
sufficient facts exist to show that the [Shannons] received notice of the filing
of the lawsuit, [Appellant] has not acted with intent to stall the judicial
machinery, discovery is ongoing and the [Shannons] cannot establish
prejudice, as a matter of law.” Id. at *7.
-3-
J-A25016-20
partial summary judgment, by order and accompanying opinion, and entered
judgment solely against Appellant and in favor of the Shannons.
The trial court ultimately determined:
In the instant case, [Appellant] did not make a good faith effort
to effectuate original service of process upon the [Shannons].
Instead of providing [the Shannons] with notice of the writ [of
summons] within thirty days of its issuance [as required by
statute], Plaintiff only notified Nationwide[, the Shannons’
insurance carrier,] of the writ's existence. […Appellant] did not
provide [the Shannons] with notice of the commencement of the
action until well after the statute of limitations expired.
[Appellant] argues that [the Shannons] had actual notice because
Nationwide communicated to [the Shannons], through a letter
dated August 22, 2017, that there was a potential for litigation.
Past precedent, however, rejects this argument.
* * *
In the instant case, [Appellant’s] act of [forwarding] the writ of
summons to Nationwide did not put the [Shannons] on actual
notice because Pennsylvania law holds that communication with
an insurance adjuster does not serve as a substitute for actual
service of process on [named d]efendants.
Trial Court Opinion, 4/5/2019, at 4-5. The trial court further opined that,
without actual notice to the Shannons, it was unnecessary to determine,
pursuant to McCreesh v. City of Philadelphia, 888 A.2d. 664, 674 (Pa.
2005), whether noncompliance with the procedural rules resulted in prejudice
to the Shannons or whether Appellant demonstrated an intent to stall the
judicial machinery. Id. at 3 and 6. Accordingly, the trial court granted the
Shannons’ motion for partial summary judgment and entered judgment in
their favor against Appellant. Id. at 6.
-4-
J-A25016-20
Thereafter, in separate orders entered on November 25, 2019 and
November 26, 2019, the trial court approved settlements for the minor
children. This timely appeal followed.7
After the parties filed appellate briefs with this Court, on March 25,
2021, the Pennsylvania Supreme Court decided Gussom v. Teagle, WL
1134538 (Pa. 2021). On March 25, 2021, the Shannons applied for leave with
this Court to file a supplemental brief addressing Gussom. We granted relief
by per curiam order entered on March 29, 2021. Thereafter, both parties filed
timely supplemental briefs with this Court. As such, this case is now ripe for
disposition.
In his initial brief on appeal, Appellant presents the following issue for
our review:
Whether, based upon the facts of record, the [trial c]ourt erred in
failing to resolve all doubts in favor of [Appellant], the non-moving
party, determining that no issue of material fact remained, such
that summary judgment could be granted where discovery was
ongoing, there were facts of record that indicated that the
Shannons had notice of the filing of the lawsuit, [Appellant] did
not demonstrate an intent to stall the judicial machinery, and the
Shannons were not prejudiced pursuant to the test in McCreesh
v. City of Philadelphia, [] 888 A.2d 664 ([Pa.] 2005)?
Appellant’s Brief at 4.
____________________________________________
7 Appellant filed a notice of appeal on December 26, 2019. On January 7,
2010, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on January 27, 2020. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on February 3, 2020 that relied upon the decision issued on
April 5, 2019.
-5-
J-A25016-20
More specifically, in sum, Appellant argues:
Here, as the statute of limitations neared, [Appellant’s] counsel
and the [Shannons’] insurance adjuster agreed to file a writ of
summons to permit the discussions to continue and with the
intention that a lawsuit would not need to be filed, as the
Shannons' insurance limits would likely be wholly inadequate to
compensate [Appellant], and the limits did not make sense to
litigate over. Pursuant to the adjuster's request, a copy of the
[w]rit of [s]ummons was provided to her so that she could keep
her insureds informed. On the same day as the e-mail forwarding
the [w]rit, the insurance adjuster notified the Shannons of the
pending lawsuit. After sharing the [w]rit, negotiations continued,
and all medical records were provided to Nationwide in advance
of the Shannons' discovery requests and subpoenas to
[Appellant’s medical] providers.
The [trial court’s] conclusion fails to address the evidence of
record when it concluded that notice was only given to the
insurance adjuster, and no further. The record includes evidence
that suggests that notice was provided to the Shannons by the
insurance adjuster. This evidence allows for the simple inference
that the Shannons were provided with actual notice of the
commencement of the action.
The [trial court] concluded that, "[Appellant] only notified
Nationwide of the writ's existence." However, the adjuster was
not merely provided with notice that the [w]rit of [s]ummons was
filed. As requested by the adjuster, a copy of the [w]rit of
[s]ummons was provided to her, so that she could notify her
insureds. On the same day that the adjuster received a copy of
the [w]rit of [s]ummons, she did as she indicated that she would,
she notified her insureds. Looking at the evidence of record, at
best, the Shannons had actual notice of the initiation of the action;
at worst, there is evidence of record that creates a material issue
of fact, requiring that discovery should have continued, and if the
issue remained, it could be addressed once discovery had
concluded.
Medical records were provided, and settlement discussions
continued throughout the entire period. There was no stalling of
the judicial machinery by either party. This process continued
until a new adjuster was assigned to the file, at which point the
matter was handed over to [the Shannons’] counsel.
-6-
J-A25016-20
The Shannons have never asserted any allegation of prejudice,
and they could not have done so. Discovery continued with the
Shannons receiving information from all medical providers of
[Appellant], tax and financial records of [Appellant] and his wife,
evidence of lost earning capacity, etc. Depositions were starting
to be requested but were put off pending the results of the
[m]otion for [p]artial [s]ummary [j]udgment.
Id. at 13-15.
In his supplemental appellate brief, Appellant maintains that Gussom
“is not a controlling decision to this appeal, but rather, it supports that the
Pennsylvania Supreme Court’s [d]ecision in [McCreesh] is still the controlling
authority to the facts of this matter[.]” Appellant’s Supplemental Brief,
4/14/2021, at 1. More specifically, Appellant contends that the Shannons
“had actual notice of the commencement of the action in the relevant
timeframe” and, therefore, Gussom is inapplicable. Id. at 6. For the reasons
that follow, we disagree.
This Court has previously determined:
Our standard of review of the grant of a motion for summary
judgment is well settled. We will only reverse the trial court's entry
of summary judgment in instances where there was an abuse of
discretion or an error of law by the trial court. Our scope of review
is, however, plenary in nature.
On review of an order granting summary judgment, we must
determine whether the moving party has established that there is
no genuine issue of material fact and that the movant is entitled
to judgment as a matter of law. In making this determination, we
must examine the record in the light most favorable to the
non-moving party, who is entitled to the benefit of all reasonable
inferences. All doubts as to the existence of a factual dispute must
be resolved in favor of the non-moving party and the entry of
summary judgment is appropriate only in the clearest of cases.
-7-
J-A25016-20
Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 795–796 (Pa. Super. 1999)
(citations omitted). “Summary judgment is appropriate if a plaintiff's cause
of action is barred by the statute of limitations.” Gojmerac v. Naughton,
915 A.2d 1205, 1206 (Pa. Super. 2006).
In Gussom, our Supreme Court explained:
The Pennsylvania Rules of Civil Procedure (“Rules”) allow a
plaintiff to commence a civil action by filing either a praecipe for
a writ of summons or a complaint. Pa.R.C.P. 1007. The Rules
require a plaintiff to serve the defendant with original process
within 30 days after the issuance of a writ or the filing of a
complaint. Pa.R.C.P. 401(a). If the plaintiff does not effectuate
service within that time period, she can praecipe for reissuance of
the writ or reinstatement of the complaint. Pa.R.C.P. 401(b)(1).
So long as the plaintiff files her writ or complaint before the
expiration of the statute of limitations applicable to her cause of
action, the original filing, as well as any subsequent reissuances
or reinstatements, tolls the statute of limitations.
In the seminal case of Lamp v. Heyman, 366 A.2d 882 (Pa.
1976), [our Supreme] Court sought to end abuses of process by
plaintiffs who tolled the statute of limitations by filing a writ of
summons, had the writ repeatedly reissued, and deliberately
failed to notify the defendant of the pending litigation.”
McCreesh v. City of Philadelphia, 888 A.2d 664, 665 (Pa.
2005). “This process, while technically compliant with the Rules of
Civil Procedure, nonetheless defeated the purpose of the statute
of limitations, which is to protect defendants from stale claims.”
Id. Thus, in Lamp, [our Supreme] Court held 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.”
Lamp, 366 A.2d at 889. This “Lamp rule” applies equally to
actions commenced by way of the filing of a complaint.
[T]he Lamp rule [was refined] in Farinacci v. Beaver County
Industrial Development Authority, 511 A.2d 757, 759 (Pa.
1986), holding that “Lamp requires of plaintiffs a good-faith effort
to effectuate notice of commencement of the action.” In addition,
Farinacci clarified that: (1) the plaintiff carries an evidentiary
-8-
J-A25016-20
burden of proving that she made a good-faith effort to ensure that
notice of the commencement of an action was served on the
defendant, McCreesh, 888 A.2d at 672; and (2) “[i]n each case,
where noncompliance with Lamp is alleged, the [trial] court must
determine in its sound discretion whether a good-faith effort to
effectuate notice was made[,]” Farinacci, 511 A.2d at 759.
[Our Supreme] Court's most recent decision in the Lamp-line of
cases is McCreesh, supra. In McCreesh, the [Supreme] Court
expressed that when plaintiffs’ improper actions in serving original
process put defendants on actual notice of the commencement of
actions, trial courts should “dismiss only those claims 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.” McCreesh, 888 A.2d
at 674.
Gussom, 2021 WL 1134538, at *1.
Ultimately, the Gussom Court concluded:
Prior to Lamp, a plaintiff could comply with the service
requirements of the Rules of Civil Procedure and simultaneously
undermine the purpose of the statute of limitations by initiating
an action via the filing a writ prior to the expiration of the statute
of limitations and continually reissuing that writ after the statute
had run, all the while without serving notice on the defendant that
the plaintiff had commenced an action. The Lamp Court
substantially narrowed this avenue for potential abuse by holding
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.” Lamp, 366 A.2d at 889. Stated more in the
affirmative, Lamp requires plaintiffs to act diligently to meet their
good-faith requirement to effectuate service of process upon
defendants so as not to dilute the policies underlying the statute
of limitations. Id. (“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.”).
[] Farinacci [] aided the bench and bar by further defining the
contours of the Lamp rule. As noted supra, the Farinacci Court
clarified that: (1) plaintiffs carry an evidentiary burden of proving
-9-
J-A25016-20
that they made a good-faith effort to ensure that notice of the
commencement of actions was served on defendants, McCreesh,
888 A.2d at 672; and (2) “[i]n each case, where noncompliance
with Lamp is alleged, the [trial] court must determine in its sound
discretion whether a good-faith effort to effectuate notice was
made[,]” Farinacci, 511 A.2d at 759. Importantly, [the] decision
in Farinacci did nothing to lessen a plaintiff's burden to act
diligently in promptly serving notice of the commencement of an
action on a defendant so as not to thwart the purpose of the
statute of limitations. Indeed, the Farinacci Court ultimately
concluded that the plaintiff therein failed to establish a good-faith
effort to serve a writ where a four-week delay in service was
attributable to counsel's negligence in forgetting to take the
necessary steps to effectuate service of the writ. Id. at 759-60.
[The] McCreesh [] Court sought to resolve a pattern of conflicting
opinions from the intermediate courts. On the one hand, some of
those decisions required plaintiffs to comply strictly with the rules
regarding service to satisfy the Lamp-Farinacci good-faith
requirement, while, on the other hand, different panels allowed “a
more flexible approach, excusing plaintiffs’ initial procedurally
defective service where the defendant has actual notice of the
commencement of litigation and is not otherwise prejudiced[.]”
McCreesh, 888 A.2d at 666. After explaining 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[,]” the
[McCreesh] Court stated that it embraced the logic of cases which
“would dismiss only those claims 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.” McCreesh, 888 A.2d at 674.
Although McCreesh made clear that a plaintiff could fulfill her
good-faith service mandate without strictly complying with the
service rules as long as her efforts resulted in actual notice of the
lawsuit to the defendant, like Farinacci, McCreesh did nothing
to modify a plaintiff's duty to act diligently to serve notice of the
commencement of an action so as not to undermine the policies
that drive the statute of limitations. Nor, for that matter, did
McCreesh change the rule clarified in Farinacci that the plaintiff
carries an evidentiary burden to prove that she made a good-faith
effort to effectuate service of process in a timely manner. To the
contrary[,] the McCreesh Court alluded to this evidentiary
requirement. See id. at 672 (“We subtly altered our holding in
- 10 -
J-A25016-20
Lamp in Farinacci, requiring plaintiffs to demonstrate ‘a
good-faith effort to effectuate notice of commencement of the
action.’”).
In sum, Lamp and its progeny require a plaintiff to make a
good-faith effort in diligently and timely serving process on a
defendant. When a defendant presents a factual dispute as to
whether a plaintiff fulfilled this duty, the plaintiff carries an
evidentiary burden to demonstrate that she met her good-faith
mandate. If a plaintiff presents credible evidence that she made
this attempt at service, then she fulfills her requirement to prove
good faith. If a plaintiff does not present such evidence, then she
has failed to satisfy her evidentiary burden, regardless of whether
her actions (or inaction) were intentional, unintentional, or
otherwise. However, pursuant to McCreesh, a trial court should
not punish a plaintiff by dismissing her complaint where she is
able to establish that her improper but diligent attempts at service
resulted in the defendant receiving actual notice of the
commencement of the action, unless the plaintiff's failure to serve
process properly evinced an intent to stall the judicial machinery
or otherwise prejudiced the defendant.
Id. at *8–9.
Moreover, this Court has determined that “[w]hat constitutes a ‘good
faith’ effort to serve legal process is a matter to be assessed on a case by case
basis.” Moses, 725 A.2d at 796 (citation omitted). “The inquiry into whether
a plaintiff acted in good faith lies within the sound discretion of the trial court.”
Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 125 (Pa. Super. 2007)
(citation and quotations omitted).
Here, there is no dispute that the applicable statute of limitations was
two years. See 42 Pa.C.S.A. § 5524. The alleged accident occurred on August
20, 2015. Thus, the applicable statute of limitations expired on August 17,
2017. Appellant initially filed a writ of summons on August 17, 2017.
Thereafter, the writ was reissued on March 3, 2018. To resolve the issue
- 11 -
J-A25016-20
raised by the Shannons’ motion for partial summary judgment, the trial court
needed to determine whether Appellant made a good faith effort to effectuate
service of the writ of summons upon the Shannons, as the named defendants.
Applying this Court’s prior decisions in Ferrara v. Hoover, 636 A.2d
1151, 1153 (Pa. Super. 1994) and Moses, supra, the trial court concluded
that service of the writ of summons by Appellant upon Nationwide, the
Shannons’ insurance carrier, did not constitute actual notice and did not
qualify as a good faith effort to achieve original service of process upon the
Shannons, as required by our Rules of Civil Procedure. Our review of Ferrara
and Moses confirms that those cases support the trial court’s decision.
Ferrara and Moses make clear that a plaintiff’s communications with a
defendant’s insurance carrier do not constitute a good faith attempt at either
service or notice of a lawsuit. See Ferrara, 636 A.2d at 1153 (“We find no
merit in the contention [that] communication between [an] appellant and [the
defendant’s] insurance adjuster serves as a substitute for actual service of
process. [Defendants] have a reasonable expectation [of assurance] that
once the statute of limitations has run they will no longer shoulder the burden
of possible litigation.”); see also Moses, 725 A.2d at 798 (rejecting argument
that “insurance carrier had notice of an ‘impending lawsuit’ two weeks prior
to the running of the [s]tatute of [l]imitations [because] it [] does not excuse
[plaintiff’s] failure even to attempt to effectuate actual service of the actual
writ [of summons] on the [defendants]. It was the [defendants] who were
being sued not their insurance company.”).
- 12 -
J-A25016-20
More specifically, in Ferrara, we first recognized “it is not necessary the
plaintiff's conduct be such that it constitutes some bad faith act or overt
attempt to delay before the rule of Lamp will apply. 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.” Ferrara,
636 A.2d at 1152 (citation omitted). Ultimately, in Ferrara, we found “no
merit in the contention that communication between [the plaintiff’s attorney]
and [defendants’] insurance adjuster serves as a substitute for actual service
of process.” Ferrara, 636 A.2d at 1153. Thereafter, in Moses, we
recognized:
there is no genuine issue of material fact that [Moses], through
his original counsel made no effort whatsoever to serve the writ
of summons during the term of its existence. Thus, [the named
defendants] had no actual notice of the existence of any lawsuit.
[Moses] alleges, though, that the [defendants’] insurance carrier
had notice of an “impending lawsuit” two weeks prior to the
running of the [s]tatute of [l]imitations. Accepting the truth of
this allegation for the purposes of our review, it nonetheless does
not excuse [Mose’s] failure even to attempt to effectuate actual
service of the actual writ on the [defendants]. It was the
[defendants] who were being sued not their insurance company.
Moreover, our Court has previously considered and rejected a
similar argument [in Ferrara].
Moses, 725 A.2d at 798.
As set forth above, Appellant, the plaintiff in this matter, bore the
evidentiary burden of demonstrating he met the good-faith mandate. In this
case, Appellant concedes that he made no effort to serve the writ of summons
on the Shannons. The only step taken was to e-mail a copy of the writ to
- 13 -
J-A25016-20
Nationwide, the Shannons’ insurance carrier. Appellant did not attempt
service of the writ upon the Shannons via the sheriff. See Pa.R.C.P. 400
(providing that original process shall be served only by the sheriff). Moreover,
there is simply no evidence that the Shannons ever received a copy of the writ
of summons that Appellant forwarded to Nationwide. We have previously
determined that communication between a plaintiff and a defendant’s
insurance carrier does not qualify as a good faith attempt at service. See
Ferrara, supra. and Moses, supra. Our decisional law has determined that
corresponding with an insurance adjuster is simply not enough. It was the
Shannons who were being sued, not their insurance company. Appellant does
not dispute, distinguish, or otherwise contest the trial court’s reliance on
Ferrara and Moses. As such, Appellant has failed to satisfy his evidentiary
burden of showing he acted in good faith and it does not matter whether his
actions (or inaction) were intentional, unintentional, or otherwise.
Accordingly, we discern no abuse of discretion or error of law in determining
that Appellant did not make a good faith attempt at effectuating actual service
of the writ of summons. As such, based upon this record, there are no issues
of material fact to decide.
We recognize that, pursuant to McCreesh, a trial court should not
punish a plaintiff by dismissing a complaint where it can be established that
improper but diligent attempts at service resulted in the Shannons receiving
actual notice of the commencement of the action. In McCreesh, the plaintiff
served the writ of summons upon the Philadelphia City Law Department within
- 14 -
J-A25016-20
the applicable statute of limitations period, but served it by certified mail,
which was procedurally improper. There was no dispute, however, that the
attorney representing the City of Philadelphia actually received the writ of
summons at that time. See McCreesh, 888 A.2d at 666 (“The parties agree
that a United States Postal Service employee delivered the package containing
[the writ of summons], and that a receptionist at the Law Department signed
for the package” within the statute of limitations period.) The plaintiff in
McCreesh later effected proper service by hand delivery as required, but after
the statute of limitations had expired. The McCreesh Court determined that
the plaintiff's technically deficient service by mail constituted a good faith
effort at notice where the attorney representing the City of Philadelphia
received actual notice of the litigation within the statute of limitations and was
not otherwise prejudiced. Id. at 666 n.1. The McCreesh Court 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 [] would dismiss only those claims
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.
As stated earlier, [the Supreme] Court [has] attempted to prevent
plaintiffs from abusing the liberal rules of civil procedure which
had been enacted originally to protect plaintiffs from being thrown
out of court despite commencing an action within the applicable
limitations period. The cases requiring strict compliance hearken
back to these draconian procedures and replace a factual good
faith inquiry with an objective bright line standard of compliance
that is wholly inconsistent with the concept of good faith.
- 15 -
J-A25016-20
Id. at 674 (emphasis added). Accordingly, since actual notice of the
commencement of the legal action was received within the statute of
limitations period in McCreesh, the Supreme Court concluded that strict
compliance with the procedural rules was unnecessary.
Here, upon review of the record and as set forth above, Appellant did
not formally serve the Shannons with the writ of summons by any means.
Appellant admits that the only action he took was to email a copy of the writ
of summons to the Shannons’ insurance agent. There is no evidence that the
insurance agent, in turn, sent the writ of summons to the Shannons. In this
case, the absence of actual notice within the statute of limitations
distinguishes it from McCreesh, wherein the attorney for the defendant
received the writ of summons, albeit through certified mail rather than
personal delivery as required under the rules. While the Lamp/McCreesh
line of cases excuses technical non-compliance with procedural rules, in this
case, there was no attempt at complying with the rules whatsoever.
Accordingly, we conclude that the trial court properly distinguished
McCreesh. As such, there was no reason for the trial court in this matter to
consider whether Appellant stalled proceedings and/or whether the Shannons
were prejudiced. For all of the foregoing reasons, Appellant is not entitled to
relief.
Order granting summary judgment affirmed.
- 16 -
J-A25016-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/21/2021
- 17 -