Some recent court decisions serve as an important reminder that new cases should always be evaluated to determine that service was proper and effectuated pursuant to Pennsylvania law.
In Flannigan v. The Ellwood City Hospital, et. al., No. 30007 of 2017 (Lawrence C.C.P. 2019), the court granted defendant’s preliminary objections dismissing plaintiff’s action with prejudice. In Flannigan, plaintiff commenced a medical malpractice action by filing a writ of summons two (2) days before the statute of limitations expired. Plaintiff made one unsuccessful attempt at service on defendant physician on July 6, 2017 and then there was a gap of three and a half months until service was effectuated on October 27, 2017. The Court noted that under Pennsylvania law, plaintiff was required to serve his writ 30 days after it was filed and, after the initial 30 day period, the writ may be reissued any number of times and the tolling effect is continued along with the reissuance of the writ. Further, the court noted that, under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the continued tolling only occurs so long as a good faith effort is made to effectuate service and that even simple neglect and/or mistake to fulfill the responsibility to see that the requirements for service are carried out may be sufficient constitute a lack of good faith on the part of the plaintiff. Applying Pennsylvania law, the court in Flannigan concluded that proper service was not made prior to the expiration of the statute of limitations and that there was no evidence that the defendant had actual notice of the case. The court also found that the three and half month delay between the commencement of the action and actual service was not a mere technical misstep and, as a result, the action against defendant was dismissed with prejudice for plaintiff’s failure to comply with the statute of limitations.
Similarly, in Gussom v. Teagle, No. 03821 April Term 2018 (Philadelphia C.C.P. 2019), the court denied plaintiff’s motion for reconsideration and upheld the granting of preliminary objections dismissing plaintiff’s complaint. In Gussom, the plaintiff commenced a complaint on April 26, 2018 seeking personal injuries arising from a July 25, 2016 motor vehicle accident. Service was attempted on May 4, 2018 but defendant reportedly moved to Virginia. Then, on August 22, 2018, plaintiff reinstated the complaint and defendant filed preliminary objections arguing that there were no good faith efforts to serve the complaint prior to the expiration of the statute of limitations on July 25, 2018. The Court sustained the preliminary objections dismissing the complaint and plaintiff thereafter filed a motion for reconsideration that was denied. The court noted that once an action is commenced the statute of limitations is tolled only if the plaintiff makes a good faith effort to effectuate service. The court further noted that plaintiff waited twenty-eight (28) days after the statute of limitations expired to finally reinstate the complaint and there was no evidence of any good faith effort to locate and serve the defendant. As a result, the court determined that plaintiff demonstrated an intent to stall the judicial machinery and that plaintiff failed to make a good faith effort to effectuate service prior to the expiration of the statute of limitations.
Questions on this alert can be sent to David Friedman.
