Ronk, R. v. Israel, J. ( 2017 )

J-S03014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAYMOND RONK AND MELISSA BENSON IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
JUDITH ISRAEL
Appellee No. 1099 WDA 2016
Appeal from the Order June 27, 2016
In the Court of Common Pleas of Blair County
Civil Division at No(s): 2013 GN 2650
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017
Appellants, Raymond Ronk and Melissa Benson, appeal from the order
entered on June 27, 2016, granting a motion for summary judgment filed by
Judith Israel (Israel). Upon careful consideration, we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
This case involves a negligence action between former
neighbors. [Appellants] claim[ed] that on or about
September 2, 2012, a fire originated at [Israel’s] home
located at 303 Lexington Avenue, Altoona, Blair County,
Pennsylvania and spread to their residence located at 301
Lexington Avenue. The [c]omplaint aver[red] that [Israel]
failed to remove accumulated debris and rubbish from
under an air conditioning unit. [Appellants] claim[ed] that
this underbrush caused the unit to malfunction and catch
fire, allegedly spreading to [Israel’s] home and in turn to
[Appellants’] home. Both homes were destroyed in the
incident.
* * *
* Retired Senior Judge assigned to the Superior Court.
J-S03014-17
[Appellants] commenced this action by filing a [p]raecipe
for a [w]rit of [s]ummons on September 3, 2013. [The trial
court] subsequently issued an [a]lternative [s]ervice [o]rder
on April 16, 2014, directing [Appellants] to reinstate the
[w]rit within fifteen days of the [o]rder and serve the [w]rit
within thirty (30) days of reinstatement. [Appellants] filed
a [p]raecipe to [r]einstate [w]rit of [s]ummons on May 1,
2014. [The trial court] issued another [a]lternative
[s]ervice [o]rder on July 25, 2014, followed by an
[a]mended [w]rit of [s]ummons on August 14, 2014, adding
Melissa Benson as a [p]laintiff. [Appellants’] attorney,
Michael B. Cohen, then delivered the [w]rit to the Blair
County Sheriff’s Department (“BCSD”) on August 14,
directing the Sheriff to serve [] Israel at [her former
residence located at] 303 Lexington Avenue, Altoona, PA
16601. Deputy Markle of the BCSD then attempted to serve
the [w]rit on September 2, 2014, only to find a vacant lot.
[Appellants] subsequently reinstated the [w]rit again on
October 6, 2014 and November 10, 2014. On November
10, 2014, Attorney Cohen directed the BCSD to serve the
[w]rit once more, this time upon Judith Kramer of 2217 10 th
Street, Altoona, PA 16601. On November 18, 2014,
Attorney Cohen sent a facsimile to the BCSD, correcting
[d]efendant’s name from “Kramer” to “Israel.” The BCSD
subsequently made three unsuccessful attempts to serve
the [w]rit at the 10th Street address on November 19, 20,
and 21.
On March 11, 2015, [the trial court] issued another
[a]lternative [s]ervice [o]rder, directing [Appellants] to
reinstate the [w]rit within fifteen (15) days and serve the
reinstated [w]rit within thirty (30) days. Eight days later,
Attorney Cohen filed a [p]roof of [s]ervice with [the trial
court], certifying that [Israel] picked up the [w]rit from the
BCSD office on November 24, 2014. Attorney Cohen
attached a [s]heriff’s [r]eturn [p]rocess [r]eceipt to his
correspondence, which indicates that [Israel] picked up the
[w]rit on November 24, 2014.
Subsequently, [the trial court] issued a [w]rit [n]otice on
July 20, 2015, directing [Appellants] to file their [c]omplaint
within thirty (30) days. [Appellants] complied and filed
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their [c]omplaint on August 17, 2015. Attorneys [Thomas]
Birris and [Joseph] Lesinski entered their appearances on
behalf of [Israel] on October 19, 2015. [The trial court]
then issued a [d]efault [j]udgment [n]otice on October 27,
2015, advising [all] parties that [the trial court] had not
received an answer and [Appellants] had not filed a
praecipe for default judgment. [Israel] subsequently filed
her [a]nswer on November 30, 2015.
[Israel] filed a [m]otion for [s]ummary [j]udgment and
supplementing brief on March 10, 2016. According to
[Israel], [Appellants] failed to meet the statute of
limitations for [a] negligence claim. [Appellants] filed a
[b]rief in [o]pposition on April 8, 2016.
Trial Court Opinion, 6/27/2016, at 1-3.
By order and accompanying opinion entered on June 27, 2016, the
trial court granted Israel’s motion for summary judgment. This timely
appeal resulted.1
On appeal, Appellants present the following issue for our review:
I. Did the trial court err in granting [Israel’s] motion for
summary judgment on the grounds that the action
was barred by the applicable two-year statute of
limitations?
Appellant’s Brief at 7 (complete capitalization omitted).
Appellants recognize that “[a]n action or proceeding to recover
damages for injury that is founded on negligent tortious conduct is subject
to a two-year statute of limitations.” Id. at 17, citing 42 Pa.C.S.A. § 5524.
____________________________________________
1
Appellants filed a notice of appeal on July 27, 2016. On August 2, 2016,
the trial court filed a letter with the Prothonotary indicating that it had
received the notice of appeal and “stand[s] on the record.” Trial Court
Letter to Prothonotary, 8/2/2016, at 1.
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Appellants argue that once they filed a praecipe for a writ of summons to
commence the action and made a good faith effort to serve it, the statute of
limitations was tolled. Id. More specifically, Appellants argue:
an amended writ of summons was issued on August 15,
2014, eighteen (18) days before the running of the
two-year statute of limitations period, and forwarded to the
Sheriff for service on or about August 25, 2014. [T]his
technically tolled the statute, extending the statute of
limitations on their action for two years from the date of
filing. The Sheriff attempted to serve the writ on [Israel] at
her last known address, which turned out to be a vacant lot,
and filed a return of no-service on or about September 5,
2014. [Appellants] subsequently reissued the writ on or
about October 6, 2014. [Appellants] learned of [Israel’s]
current address on or about November 10, 2014, and
reissued the writ on or about November 12, 2014. The
Sheriff attempted to serve the writ at that address,
unsuccessfully, on November 19, 20, and 21, 2014.
Subsequently, on November 24, 2014, [Israel] came to the
Sheriff’s office and picked up the writ, herself. Thus, over a
mere three (3) month time period, [Appellants] attempted
to serve the writ four (4) times.
Id. at 22-23.
We have stated:
our scope of review of a trial court's order granting or
denying summary judgment is plenary, and our standard of
review is clear: the trial court's order will be reversed only
where it is established that the court committed an error of
law or abused its discretion.
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter of law. The reviewing court must view the record in
the light most favorable to the nonmoving party and resolve
all doubts as to the existence of a genuine issue of material
fact against the moving party. Only when the facts are so
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clear that reasonable minds could not differ can a trial court
properly enter summary judgment.
Morgan v. Petroleum Products Equipment Co., 92 A.3d 823, 827 (Pa.
Super. 2014) (internal citation and brackets omitted).
The applicable statute of limitations for actions to recover damages for
negligence is two years. 42 Pa.C.S.A. § 5524(2). It is well-settled in this
Commonwealth that
service of original process completes the progression of
events by which an action is commenced. Once an action is
commenced by writ of summons or complaint the statute of
limitations is tolled only if the plaintiff then makes a good
faith effort to effectuate service. What constitutes a “good
faith” effort to serve legal process is a matter to be
assessed on a case by case basis. Where noncompliance []
is alleged, the court must determine in its sound discretion
whether a good-faith effort to effectuate notice was made.
In making such a determination, we have explained:
It is not necessary that the plaintiff's conduct be
such that it constitutes some bad faith act or overt
attempt to delay[]. Simple neglect and mistake to
fulfill the responsibility to see that requirements for
service are carried out may be sufficient[]. Thus,
conduct that is unintentional that works to delay the
defendant's notice of the action may constitute a
lack of good faith on the part of the plaintiff.
Although there is no mechanical approach to be applied in
determining what constitutes a good faith effort, it is the
plaintiff's burden to demonstrate that his efforts were
reasonable.
Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 124–125 (Pa.
Super. 2007) (internal citations, quotations, and original brackets omitted).
We have reviewed the certified record, the parties’ briefs, the relevant
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law, and the trial court’s opinion entered on June 27, 2016. The trial court
largely relied on our decision in Englert to grant Israel’s motion for
summary judgment. As noted by the trial court, in Englert, the plaintiffs
filed a writ of summons sixteen months after an automobile accident, the
sheriff failed to deliver it because the defendant had moved, and plaintiffs
filed a praecipe to reissue the writ of summons six days after the statute of
limitations expired. The Englert Court affirmed the grant of summary
judgment to the defendant because the plaintiffs failed to fulfill their good
faith responsibility to see that service requirements were carried out.
Here, the trial court concluded:
Similar to Englert, in the case at bar [Appellants] made
only one attempt at service before the statute of limitations
period expired and served the writ on a vacant lot. Before
this attempt at service, [Appellants] took no action to
determine whether [] Israel still lived at this address.
[Appellants] did not present [the trial court] with any
information regarding searches for [] Israel’s new address.
Much akin to the failure of the Englert plaintiffs,
[Appellants] here failed to do any research before making a
defective attempt at service. [Appellants] did not amend
the writ of summons to include [] Israel’s new address at
2217 10th Street until November 10, 2014, over two months
after the limitations period ran. Based upon those entries
in the record, the [trial court found] that [Appellants] made
insufficient attempts to serve the writ of summons within
the limitations period and failed to follow up their single
attempt at service with prompt research regarding a good
address for [Israel]. In combination with [Appellants’]
continual reissuances of the writ of summons and failure to
comply with the [trial court’s] multiple [a]lternative
[s]ervice [o]rders, [the trial court was] constrained to find
that [Appellants] displayed an intent to stall the judicial
machinery and, as such, [Appellants’] filing of the writ of
summons did not toll the statute of limitations.
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Trial Court Opinion, 6/27/2016, at 9 (emphasis in original).
The trial court opinion then distinguished and rejected the cases relied
upon by Appellants, specifically, McCreesh v. City of Philadelphia, 888
A.2d 664 (Pa. 2005), Shackelford v. Chester City Hospital, 690 A.2d 732(Pa. Super. 1997), and Ramsay v. Pierre, 822 A.2d 85 (Pa. Super. 2003).
In McCreesh, the City of Philadelphia received actual notice of an action
against it before the statute of limitations expired, even though service
through certified mail was not the proper method. In Shackelford, five
attempts at service (to the correct address) were made within two weeks of
the issuance of the original writ; whereas, here Appellants waited until one
year after the issuance of the original writ and sent service to a vacant lot.
In Ramsay, the defendant was elusive, but plaintiff researched defendant’s
whereabouts, found two subsequent potential addresses, and moved for
alternative service.
We conclude that there has been no error or abuse of discretion in this
case and that the June 27, 2016 opinion meticulously, thoroughly, and
accurately disposes of Appellants’ issue on appeal. Therefore, we affirm on
the basis of the trial court’s opinion and adopt it as our own. Because we
have adopted the trial court’s opinion, we direct the parties to include the
trial court’s opinion in all future filings relating to our examination of the
merits of this appeal, as expressed herein.
Order affirmed.
Judge Solano joins this memorandum.
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Judge Strassburger files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
-8-
Circulated 02/10/2017 01:31 PM
·-
IN THE COURTOF COMMON PLEAS OF BLAIR COUNTY~ PENNSYLVANIA
RAYMOND RONKand IvfELlSSA
BENSON, 2013 GN 26,50
PLAINTIFFS
.....
v, . ·......
. .,··j
', ~ :. .
;JU.PITH ISRAE.L,
DEFENDANT .... ,•\ :-··'·
·:) . -:·--.".
HON. TIMOTHY M. SULI.JVAN PRESJDING JUDGE .,<
,.. ::.-:
MICHAELS, COHEN1 f~SQUIRE COUNSEL FOR PLAiNTlFPS
"fHOMAS P. BIRRIS, ESQUIRE
JOSEPH V. LESINSKI, ESQUlRE COUNSEL FOR DEFENDANT
OPINION ,md ORDER
Now before the Court is Defendant Judith Israel's Motion for Summary
Judgment, For the reasons stated herein, we hereby grant the motionand enter summary
judgment in favor of Defendant.
FACTlfAL HISTORY:
This case involves a negligence claim between former neighbors. Plaintiffs
Raymond Ronk and Melissa Benson claim that on or about September 2, 2012, a fire
originated at Defendant's home locatedat 3'03 Lexington Avenue, Altoona, Blair County.
Pennsylvania and spread to their residence located at 301 Lexington Avenue. The
Complaint avers that Defendant failed to remove accumulated. debris and rubbish from
under a11 air conditioning unit. Plaintiff claims that this underbrush caused the unit to
malfunction and catch fire, allegedly spreading to Defendant's home .and in tum to
Plaintiffs· home. Both homes were destroyed in the incident.
l
..._..
.
PROCEDURAL HiSTORY:
Plaintiffs commenced this action by filinga Praecipe for a Writof Summons on
September 3, 2013. This Court subsequently ·issued an Alternative Service Order on
April l6, 2014, directing Plaintiffs. to. reinstate the Writ within. fifteen (15) days of the
Order and serve the Writ within thirty (30) .days of reinstatement Plaintiffs filed a
Praecipe to Reinstate Writ of SU111mons on May I, 2U14. This Court issued. another
Alternative Service Order 911 July 16. 2014, directing Plaintiffs to take action in the same
manner as prescribed in the prior Order of Court. Plaintiffs filed another Praecipe to
Reinstate Writ of Summons on July 25, 2014, followed by an Amended Writ of
Summons on August 14. 2014, adding Melissa Benson as a Plaintiff. Plaintiffs' attorney,
Michael B. 'Cohen, then delivered the Writ to the Blair County Sheriffs Department
("BCSDi} on August 14~ directing the Sheriff to serve Defendant Judith Israel at 303
Lexington Avenue, Altoona, PA 16601. Deputy Mearkleofthe BCSD thenattemptedto
serve the Writ on September 2, 2014, only to find a.vacant lot.
Plaintiffs subsequently reinstated the Writ again 'Oh October 6; 2014 and
November rn, 2014. On November 10; 2014, Attorney Cohen directed the HCSD to
serve the Writ once more, this time upon Judith Kramer of2217 10i11 Street Altoona, PA
16601. On November 18, 2014. Attorney Cohen sent a facsimile to the BCSD, correcting
Defendant's last name from "Kramer" to "Israel:' The BCSD subsequently made three
unsuccessful attempts to. serve the Writ at the 10111 Street address on November 19.~ 40.,
and 21.
2
On March 11, 2015, this Court issued another Alternative Service Order, directing
Plaintiffs to reinstate the Writ within fifteen {15) days and' .serve the reinstared Writ
within thirty (30) days. Eightdays later; Attorney Cohen fifed a. Proofof Service with the
Court, certifying that Defendant picked.up the Writ from the BCSD office on November
24. 2014. Attorney Cohen attached a Sheriffs. Return Process Receipt to his
correspondence, which indicates that Defendant picked up the. Writ on November 24,
2014.
Subsequently. this Court issued a. Writ Notice on July 20, 2015., directing
Plaintiffs to file their Complaint within thirty (JO) days. Plaintiffs complied and filed
their Complaint on August 17, 2015. Attorneys Birris and Lesinski entered their
appearances on behalf of Defendant on October 19, 2015. This Court then issued a
Default Judgment Noticeon October 27, 2015,. advising both parties that this Court had
not received an answer and Plaintiffs had not filed a praecipe for default judgment.
Defendant .subsequenrly filed her Answer on November 30. 2015.
Defendant filed a Motion for Summary Judgment and supplementing brief on
March 10, 20 l 6, According to Defendant, Plaintiff failed to meet the statute of
limitations for his negligence claim. Plaintiff filed a Brief in Opposition on April 8 .
.2016. The .matteris now ripe before the Court and we proceed to disposition.
".)
APPLICABLE LAW:
The filing of a MoticnforSummaryJudgmentis governed by Pa. R.CJ>. 1035.2:
After the. relevant pleadings are closed, but within such
time as not to. unreasonably delay trial, any party may move
for summary judgment .in whole or in part as a matter of
law:
(J) whenever there is no genuine issue of any material fact
as to a necessary .element of the ..cause of action or
defense which could be. established by additional
discovery or expert report, or
(2} it: after the completion of discovery relevant to the
· motion, including the production .of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts. essential to the
cause of action or defense which, .in a jury trial, would
require the issue to be submitted to ajury.
The party who brings the motion has the burden of proving that no genuine issue
of fact exists, All doubts as to the existence of a genuine issue of material fact are to be
resolved against the granting. of summary judgment. Penn Center House Inc. · v.
Hoffman, 553 .A2d 900, 903 (Pa. 1989). The ultimate inquiry 'in deciding a Motion for
Summary Judgment is whether the admissible evidence in the record, when considered in
the light most favorable · to the non..moving party, fails to establish a prima fade case.
Liles v. Balmer, 567 A.2d 69 t, 692 (Pa. Super, 1989). In deciding. whether a prima fade
case is established, the Court mustresolve all doubts against the moving party. Hayward
v. Medical Center of BeaverCnty., 608 A.2d l 040, 1042 (Pa.1992).
4
An entry of summar.:y judgment may be granted only in cases where the right is
clear and free ofdoubt.
. Musser
. . Vi VismeierAuction
. Compaiiylnt;.,
. . 562 A.2d 279,. 2.80
.
(Pa. 1989}; The non-moving party must demonstrate that there is a genuine issue for trial
and may not rest on averments in its· pleadings. Davis y. Resources for .H11ma11
Development, Inc.; 770 A.2d 353, 357 (Pa, Super. 2001). It is the Court's function in a
summary judgment to determine only if there is a genuine issue of material fact-: not to
determine· the facts. Waslting/011 Federal Savillgs am/ Loan v. Stein, 515 A.2d 980198 i
(Pa. Super. 1986);
DISCUSSION:
As a preliminary matter, the Court finds. that the non-tolled statuteof limitations
expired September 2, 2014. Plaintiff's claim sounds in. negligence and the appropriate
statute of limitations is two years. 42 Pa. C.S.A. § 5524(2).
Based upon the record.of writs, reissuances, and attempts at service, Defendant
argues that Plaintiffs failed to comply with the appropriate statute of limitations and the
instant action should be dismissed. Defendant argues that Plaintiffs failure to attempt
service. and their one fruitless. attempt at· service before the running of the. statute is not
effective to toll the statute of limitations. According to Defendant, the first writ did 110t
issue until September 3) 2013 and the first and only attempt at service before the run of
the limitation period occurred in September 2014. .Defendant states that this. detective
attempt at service does not toll the statute as Plaintiffs attempted to serve Defendantat a
vacant lot. While Plaintiffs may have served. Defendant in .November 201( Defendant
argues that none of Plaintiffs actions· tolled the statute and cites various case in law
support of his position. Defendant believes that these failures both indicate-an intent to
5
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stall the judicial machinery Plaintiff put into process and prejudiced Defendant's ability
to de fond the claims.
Plaintiffs respond that their actions were. sufficient to toll the statute of
Iimitations. While. Plaintiffs ,do not deny the 'timeline put forth in the factual history,
supra, they argue that their efforts. should be measured from reissuances of the writ rather
than. the original writ. In that context, Plaintiffs believe that their effort in delivering the
writ to the BCSD .in August 2014 and their attempts thereafter in Noveinber2014 were
sufficient to toll the statute of limitations. Plaintiffs cite a large amount of case law in
support of their position.
Under Pennsylvania law, the filing of a writ of summons may be effective to toll
the statute of limitations. Lamp v. Heyina11, 366 A.2d 882, 888 (Pa. 1976). The Lamp
rule does not allow plaintiffs "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/ Id, Rather, "a writ of summons
rernain]s] effective to commence an action only if-the plaintiff then refrainsfrom a course
of conduct which serves to stall in its tracks: the. legal machinery he has just set in
motion." Id. at 889. In order to toll the limitations period, the plaintiff must demonstrate
"a good faith effort to. effectuate notice of commencement ofthe action." Farinacci v.
Beaver Cty. Indus; Dev. A11tli•. 5.11 A.2d 757, 759(Pa, 1986).
After Farinacci, the Superior and Commonwealth Courts struggled to
consistently apply the. Lamp rule-some panels would require strict compliance with the
Rules of Civil Procedure . .related to service of process and local practice inorder to meet
..
good faith, while. others were. more flexible, excusing plaintiffs' initial procedurally
6
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defective service. so long as the defendant had actual notice ofthe commencement of
litigation and was not otherwise prejudiced. McCreesl, v. City of Philadelphi«, 888 A2d
664, 666 (Pa. 2005). Thus, out Supreme Court clarified these issues in McCreesh by
adopting tile latter view, finding that rigid compliance with the Rules of Civil Procedure
does nor comport with Lamp nor the command of Pa. R.C.P. 126 to "construe liberally
the rules of procedure so longas the deviation does not affect the substantial rights ofthe
parties. Id. at 674. Thus, the Lamp rule works to "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:" Id:
However, this ruling is tempered with the caveat that the McCree:'ilz court intended to.
"merely reanirnat] e] the purpose of Lamp. '' Id.In the. case at bat, Plaintiffs and Defendant both cite to a number of cases dealing
with delay in service of a writ of summons. We find particularly instructive a Superior
Court decision from 2007 which clarifies. the scope of+good faith":
It is not necessary [that] the plaintiffs conductbe such that
it constitutes some bad faith· act or oven attempt to delay
before the rule of lamp will apply. Simple neglect and
mistake. to. fulfill the responsibility to sec that requirements
for service are carried may be sufficient to bring the rule in
Lamp to bear. Thus, conduct that is unintentional that
works to delay defendant's. notice of the action may
constitute a lack of go.od faith on the part of the plaintiff:
Engler: ,-'.. Fazio Mecluii,iccil · Servs., I11c~;
932 A.2d 122, 114-25 (citation omitted)
(quoting Rosenberg v. Nicholson, 597 A.2d
145; l48(Pa. Super, 1991')).
Englert, as cited by. Defendant, is instructive. There, the plaintiffs. filed a writ of
summons sixteen months after an automobile accident and delivered the writ to the
sheriff for service, Englert, 932 A2d at 123. Unfortunately, the defendants moved
addresses nearly six months prior to the issuance of the writ. Id. The sheriff filed a
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return of.service one month after the service attempt, indicating that the de fondants were
not. found because theiraddress changed and listing the defendants' hew address. Id.Plaintiffs' counsel '·did not check the docket or contact the. Sheriff's office to.determine
whether service of the original writ of.summons had been made," instead waiting for the
Sheriffs return bymail. Id. Plaintiffs' attorney. never received this return however, as be
moved offices and.experienced failed mail deliveries as a result. Id. at 123A24. Five
months later; the plaintiffs received a. letter from defendants' liability carrier, stating that
the statute of limitations. would tun in two weeks. Id. ar 124. Thereafter, plaintiffs"
counsel received a ·.c~)py of the Sheriff's return via mail arid filed a praecipe to reissue the
writ of summons six days after the. limitations period. Id.The Englert affirmed the trial court's grant of summary judgment iri: favor. of
defendants. Id. at 128: The Court noted that plaintiffs provided an old address for
defendants
. and when notified of the. same,. "failed
. to
. make an inquiry
. . as to. whether
service. of this writ had been effectuated." Id. The Englert court also noted that the
defendants' insurance carrier provided. plaintiffs notice two weeks in advance· of the
expiration of the limitations period. Id . The Court continued:
We discern. no abuse of discretion under the circumstances
presented here, where [plaintiffs] took no action
whatsoever once the writ was issued to ascertain whether
service Was properly made and reffed instead on counsel's
customary practice 'Of waiting for word from the. Sheriffs
office, 110 matterhow long that mighttake and in spite of
the difficulties he had experience receiving his mail in a
timely matter. [Plaintiffs'] conduct .clearly amounted to
"neglect . . . to fulfill the responsibility to see that
requirements for service [were] carried out." [Devine v.
H11tt~ 863 A.2d 1160, 1168 (Pa. Super, 2004) (citation
omitted).] In other words, [Plaintiffs'] inaction
demonstrated an intent to. stall the judicial machinery which
was put into motion by the filing of the initial. Vvrif and
simply cannot b~. excused, M.cCreesli., 888 A.2d at 674.
Plaintiffs' contention thatt'[tjhe filing of a praecipe .for writ
of summons and the delivery of the writ one time is all that
·..~··· ."-.-:
the raw requires," ... is, quite simply, contrary to the case
law in this Commonwealth.
Id. at 126-27.
Finally, the Englert court· commented that the· plaintiffs failed .to provide,
defendants with actual notice of the suit before the expiration of the limitations, providing
only notice of the potential for litigation. Id. at 127.
The Court finds Engler; nearly dispositive upon this Motion. Similar to Englert,
in the case at bar Plaintiffs made only one attempt at service before the. limitations period
expired and served the writ on a vacant lot. Before this attempt at.service, Plaintiffs took
no action to determine whether Ms. Israel still lived at .. that address, Plaintiffs did not
present this Court with arty information regarding searches for Ms .. Israel's new address.
Much akin to the failure of the Englert plaintiffs, Plaintiffs here failed to do any research
before making a defective attempt at service. Plaintiffs also did. not amend the writ of
summons to include Ms .. Israel's new address al 2217 10th Street until November 10..
2014~ over two months after the limitations period ran, Based upon those entries in the
record, the Court finds. that Plaintiffs made insufficient attempts to serve the . writ of
summons within the limitations period and failed to follow up their single attempt at
service with prompt research regarding a good address for Defendant. In combination
with Plaintiffs' continual reissuances of the writ of summons and fail tire .fo comply with
the Court's multiple Alternative Service Orders, we are constrained to find that Plaintiffs
displayed an intent to stall the judicial machinery and, as such, Plaintiffs' filing of the
writ of summons did not toll the .statute of limitations.
Plaintiff in response to their compromised position, argue that McCtees/r and two
Superior Court decisions compel the tolling ofthe limitations period. This Court finds
these cases inapposite to the factual scenario at bar.
~·· '"-s
Ii1 McCrees/1, the plaintiff suffered injuries on August 14; 2000 and filed· a
praecipe to issue a writ of summons against the City of Philadelphia on August l2, 20Q2~
two days before the limitations period expired. McCrees//. v. City of Pliiladelpltia, 888
A.2d 664, 666 (Pa. 2005). The McCreesh plaintiffthen attempted to serve the City by
certified mail, which.a receptionist at the. City Law Department signed for on August 13,
2002. Id. Three months later; after filing his complaint, Plaintiff requested a reissuance
of the writ and served it effectively by hand delivery pursuant to Pa. R,C.P. 400. I. ld. at
6(>7. In addition to its holdings, detailed supra, the Supreme Court ruled that the plaintiff
tolled the limitations period by giving the Law Department actual notice before the run of·
the limitations period.
it is clear to the Court that the factual scenario in .McCn:eslt does not.apply. In
JJrfcCreesli the. plaintiff at least managed to provide· the City some indication of notice
before the run of the limitations period. Here, Plaintiffs made. one ineffective attempt at
service before the run of the limitations·period, serving a vacant lot. .McCi'ees/J in fact
reinforces Defendant's contention that the limitations period should riot be tolled here
based upon.a lack ofservice and failure to carry the action forward.
Plaintiffs also cite Sluu!ke/ford v; Chester Cty.. Hosp., 1 a I 997 Superior Court
decision. There, the plaintiffcommenced an action against a medical professional on
October 25. 1985; approximately five days before the limitations period expired.
Sl,acke(f()n/, 690 A.2d at 733. Thereafter, the Sheriff attempted to serve the. de fondant
unsuccessfully on five occasions, all within two weeks. ld. The Shackelford court held
that the plaintifftolled the limitations period through her five attempts to serve the writ
during the thirty-day period prescribed by Pa. RC.P. 401. Id. at 736. Plaintiffs in the
case at bar argues that SJ,ackelford supports their position, as Plaintiffs believe that the
l . . . .
· 690 A.'.2d 732 (Pa. Super. 1997).
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amended writ filed on August 15. 2014 serves as the start point and thefour attempts to.
serve the writ between August 2014 and November 20'14 serve-to toll the statute.
We disagree. Iri the case at bar, the. original writ upon which PlaintiffRonk filed
his suit issued. on September 3, 2013. We find. no proposition that. allows the Court to
begin counting from the. point of an amended writ where a plaintitfadds an additional
plaintiff The Court cannot give credence to this argument because it would, in effect,
tum the elective amending of a writ into an event upon which Plaintiffs could "reset the
clock." We also note thatthe period pf time in Shackelford was attenuated to a period of
two weeks between the issuance of the odginal writ and the five attempts at service-s-in
the. case at. bar; the first attempt at service occurred. nearly one year after issuance of the
original writ, This Court cannot allow Plaintiffs to use the constant re issuance .of writs
to, in effect, create their own limitations period. The law of this Commonwealth is.
clear-if a plaintiff wishes to have their writ toll the statute of limitations, they must
make a good faith effort to serve the same.
Plaintiffs finally cite Rilmsny v~ Piefre/ a 2003 Superior Court decision involving
issues with service and addresses.' In Ramsay. the plaintiff filed a praecipe for a writ of
summons on January 4, 2.000, three days before the expiration of the limitations period.
Bamsay, 822 .A.2.d at 87. Plaintiff then attempted to serve defendant with no success,
resulting in dismissal of the action on February 15, 2000. Id. at 88. On February 24,
2000~ the. United States Postmaster informed the plaintiff that defendant resided· at a new
location. Id. Plaintiff caused the matter to be re-listed for trial and had a Constable
attempt to serve the defendantat the new address to no avail. Id. The plaintiff'jhen made
2
· 822 A.2d 85 (Pa. Super. 2003}.
3Pl~intiffs also cite Rowe v~ Cairn Holdings, 1886 EDA2(H4 (Pa. Super. Mar: 9, 2015).
Based upon its non-precedential disposition, we forego analysis offhis decision,
regardless of whether Plaintiffs cite it "merely as persuasive authority due to its factual
similarity to the instant case." .
11
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inquiry to the Postmaster again, determining that the defendant sfill received mail at the
latter address; Id. Plaintiff subsequently filed for 'alternative service on September 26,
2000 and caused alternate service on the defendant by certified mail on Oetober.J, 200,
confirmed by return receipt of November 11, 2000. Id.There the. Superior Court found that the limitations period was tolled based on the
plaintiff's good faith atteinpts in effectuating service:
In light of the action's procedural history. the focus of our
review is the ni ne-month period between the date A ppellee
filed the complaint and. the date he eventually effected
service. Appellee's overall conduct unequivocally
establishes his good-faith attempt to effect service.
[Plaintiff! did not attempt to prevent, service, thwart the
progress of the lawsuit. or stall the legal machinery.
Instead. LPl~1intifl] attempted io achieve. service repeatedly
throughout the nine-month period. In addition, lie did not.
sit idly or disregard his duty to. ascertain [ defendant's]
whereabouts after the complaint wtts returned without
service. Indeed. [defendant] was unable to effectuate
service on the elusive [defendant] despite the postmaster
twice indicating the correct address. In lig\11 (YI. these
facts, we cannot find the nine-month period to be
unreasonable.
Id. at
91.-92..
We do not find Jlamsay to be sim ilar to the factual scenario at· bar. The. Ramsay
plaintiff made full efforts to serve the original writ going forward) including research and
motions for alternative service-in the case at bar we see a nearly full year delay before
Plaintiffs .even delivered. the writ to the BCSD for .service. Plaintiffs made no effort to
research Ms: Israel's current location beforethe .: run.ofthe limitations period, only doing
so after a completely defective attempt at service. Furthermore, Plaintiffs did not petition
the court for alternative service during that time) despite two Alternative Service Orders.
by this Court. To ignore the delay and· period of constantreissuances of the writ in the
good faith 'calculus would be the same as to ignore the limitations period itself.
12.
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Therefore, the Court grants Defendant's Motion for Summary Judgment and dismisses all
of Plaintiffs' claims ..
In light of the foregoing, we now enterthc following:
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