McCreesh v. City of Philadelphia

• Decision Date: 31 December 2003
• Citation: 839 A.2d 1206
• Parties: Charles F. McCREESH v. CITY OF PHILADELPHIA, Appellant.
• Court: Pennsylvania Commonwealth Court

839 A.2d 1206

Charles F. McCREESH v. CITY OF PHILADELPHIA, Appellant.

Commonwealth Court of Pennsylvania.

Argued November 4, 2003.

Decided December 31, 2003.

Alan C. Ostrow, Philadelphia, for appellant.

Gerald B. Baldino, Jr., Media, for appellee.

BEFORE: COHN, Judge, LEAVITT, Judge and JIULIANTE, Senior Judge.

OPINION BY Judge LEAVITT.

The City of Philadelphia (City) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) overruling the City's preliminary objection to a trespass complaint (Complaint) filed by Charles F. McCreesh (McCreesh). The City moved to dismiss the Complaint for the reason that it was filed after the statute of limitations had run.¹

The facts of this case are not in dispute. On August 12, 2002, McCreesh filed a Praecipe to Issue a Writ of Summons (Writ) and attempted service by sending the Writ to the City Law Department by certified mail. The mailing was marked received by the receptionist on August 13, 2002, on the 15th Floor of the building at 1515 Arch Street where the Law Department is located.²

On November 8, 2002, McCreesh filed the Complaint in which he requested damages no greater than $50,000 for property damage and personal injury. The Complaint alleged that on August 14, 2000, a City-owned tree fell on McCreesh's truck, causing losses to him. Also on November 8, 2002, the Writ was reissued and served by hand-delivery upon Ms. Sheila Riggs at the City Law Department.

The City filed two preliminary objections to the Complaint.³ Relevant to this appeal is its preliminary objection to service. The City claimed that the statute of limitations on McCreesh's claim ran on August 14, 2002, and proper service was not effected until November 8, 2002, more than two years after the incident. Accordingly, the City requested dismissal of the Complaint as untimely filed.

On January 2, 2002, the trial court overruled the City's preliminary objection. It found that the depositions of Postal Supervisor Hans Aglidian and Postal employee, Jonathan McCoy, established that a certified mail package containing the Writ, as attested to in the affidavit of service, had been delivered to the receptionist at the City Law Department on August 13, 2002 by Mr. McCoy. Because original process may be served by the sheriff or a competent adult,⁴ and Mr. McCoy was found to be a competent adult, the trial court held that a good faith effort was made to serve the Writ, which tolled the statute of limitations. The City sought and was granted permission to appeal the trial court's order.⁵ On appeal, the City argues that valid service of a writ of summons or other original process in a civil action cannot be effected by certified mail in the First Judicial District. Further, the filing of a writ of summons will not toll the statute of limitations unless a good faith effort is then made to serve the writ within thirty days of its filing. In sum, the City asserts that the trial court erred in holding that the statute of limitations had been tolled by the August 13, 2002 delivery of the Writ by certified mail.

The first question is whether the August 8, 2002 service of the Writ by certified mail was valid. Service of original process is a matter prescribed by the Pennsylvania Rules of Civil Procedure for actions instituted in the First Judicial District against a defendant located in the First Judicial District, as is the case here.

Pa. R.C.P. No. 400.1 provides as follows:

(a) In an action commenced in the First Judicial District, original process may be served

(1) within the county by the sheriff or a competent adult, or

(2) in any other county by deputized service as provided by Rule 400(d) or by a competent adult forwarding the process to the sheriff of the county where service may be made.

(b) In an action commenced in any other county, original process may be served in Philadelphia County by deputized service as provided by Rule 400(d) or by a competent adult.

The purpose of this rule is to identify who can make service of original process in the First Judicial District. Pa. R.C.P. No. 402(a) then directs how the service is to be accomplished in the First Judicial District, or any judicial district, by a sheriff or competent adult. It states:

(a) Original process may be served

(1) by handing a copy to the defendant; or

(2) by handing a copy

(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or

(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or

(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

Pa. R.C.P. No. 402(a) (emphasis added).⁶

Service by hand delivery is not absolute for every civil case. The Pennsylvania Rules of Civil Procedure specifically authorize service by mail in some circumstances and specify how mail service is to be done:

If a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail.

Pa. R.C.P. No. 403 (emphasis added). Before this type of service is undertaken, however, the plaintiff must have express authorization for mail service. For example, service of original process outside the Commonwealth specifically authorizes service "by mail in the manner provided by Rule 403." Pa. R.C.P. No. 404(2).⁷ Here, the Complaint did not involve an out-of-state defendant or even an out-of-county defendant.

The trial court focused on whether service by a postal employee is service by a "competent adult," which is defined as "an individual eighteen years of age or older who is neither a party to the action nor an employee or a relative of a party." Pa. R.C.P. No. 76 (Definitions). A postal employee will always satisfy this definition so long as she is not related to the defendant by blood or employment. However, the Pennsylvania Rules of Civil Procedure direct the manner of service as well as who may undertake authorized service.⁸ As required by Pa. R.C.P. No. 131,⁹ all of the Rules of Civil Procedure relating to service of process are in pari materia and must be construed together. Here, the service in question was governed exclusively by Pa. R.C.P. No. 402(a), which does not allow for service by mail or incorporate by reference Pa. R.C.P. No. 403.

In construing a rule, our objective is to ascertain the intent of the Supreme Court. Pa. R.C.P. No. 127(a).¹⁰ It is presumed that the Supreme Court does not use language as mere surplusage; therefore, "[e]very rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." Pa. R.C.P. No. 127(b).

The trial court's interpretation of the rule, allowing original service by certified mail delivery, would eliminate the precision by which our Supreme Court has directed when service must be made by hand delivery and when service by mail will suffice. Instead of effectuating the intent of the Supreme Court, the trial court's interpretation would have the effect of subverting the Court's intent while rendering the words it has chosen as mere surplusage.¹¹

In sum, our Supreme Court has made clear that service by mail is available only when a rule specifically authorizes such service. Absent a reference in either Pa. R.C.P. Nos. 400.1 or No. 402 to service by mail, we cannot find that serving the Writ upon the City by mail, rather than by hand delivery, was valid. We hold that McCreesh did not effect valid service upon the City by delivering the Writ by certified mail on August 13, 2002.¹²

The trial court held that even if service of the Writ was not effected on August 13, 2002, the statute of limitations was nevertheless tolled because the praecipe was filed on August 12, 2002, which date was prior to the running of the two-year statute of limitations on August 14, 2002. Service of original process after the statute of limitations may toll the statute where the original process is timely filed.¹³ However, the plaintiff must make a good faith effort to serve the process promptly. The trial court erred in finding that McCreesh made a good faith effort at service of the Writ.

The leading case in this area of law is Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).¹⁴ In Lamp, plaintiff's attorney commenced an action within the applicable statute of limitations by filing a praecipe for a writ of summons. He instructed the prothonotary to issue the writ but not to deliver it to the sheriff for service. Thereafter, the writ was reissued, and service was finally effected nine months after the filing of the praecipe. The defendants asserted that the "issue and hold" instructions nullified the filing and did not toll the statute of limitations.

The Supreme Court found in favor of plaintiff, but it held that henceforth the procedure followed in Lamp would not toll the statute of limitations. It directed that the filing of original process will toll the statute of limitations 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." Id. at 478, 366 A.2d at 889. Accordingly, upon filing original process a plaintiff must act in good faith to serve it. The Court reasoned as follows:

[W]e now conclude that 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 reissued in a timely fashion without

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