McCreesh v. City of Philadelphia

• Decision Date: 28 December 2005
• Citation: 888 A.2d 664
• Parties: Charles F. McCREESH, Appellant v. CITY OF PHILADELPHIA, Appellee.
• Court: Pennsylvania Supreme Court

888 A.2d 664

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

Supreme Court of Pennsylvania.

Argued October 18, 2004.

Decided December 28, 2005.

Gerald B. Baldino, Media, for Charles F. McCreesh.

George Gerasimos Rassias, Media, for PA Trial Lawyers Association, amicus curiae.

Alan C. Ostrow, Philadelphia, for City of Philadelphia.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN, BAER, JJ.

OPINION

Justice BAER.

We granted review in this case to clarify what constitutes a good faith effort by a plaintiff to effectuate notice to a defendant of the commencement of an action. In the seminal case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), this 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. 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. Accordingly in Lamp, we 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." Id. at 889.

We revisited the Lamp rule in Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757, 759 (1986), wherein we stated that "Lamp requires of plaintiffs a good-faith effort to effectuate notice of commencement of the action." Most recently, we reconsidered the necessary requirements of a "good faith effort to effectuate notice" in our plurality opinion in Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001), wherein the opinion announcing the judgment of the court favored requiring plaintiffs to have process immediately and continually reissued if it could not be served timely.

The Superior and Commonwealth Courts have struggled to apply the Lamp-Farinacci rule, with some panels requiring plaintiffs to comply strictly with the Rules of Civil Procedure related to service of process and local practice in order to satisfy the good faith requirement, see, e.g., Teamann v. Zafris, 811 A.2d 52, 63 (Pa.Cmwlth.2002), and other panels providing 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, see, e.g., Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990).¹ We now adopt the more flexible approach, concluding that it sufficiently protects defendants from defending against stale claims without the draconian action of dismissing claims based on technical failings that do not prejudice the defendant.

In this case, Charles F. McCreesh (Appellant) claims that he was seriously injured on August 14, 2000, when a tree, growing on property owned by the City of Philadelphia ("the City"), fell on his truck while he was traveling on Walnut Street. Appellant commenced the present litigation against the City by filing a Praecipe to Issue a Writ of Summons ("Writ 1") on August 12, 2002, pursuant to Pa.R.C.P. 1007,² within the applicable two-year statute of limitations.³ Appellant attempted to serve the City with Writ 1, by sending it to the City Law Department by certified mail. The parties agree that a United States Postal Service employee delivered the package containing Writ 1, and that a receptionist at the Law Department signed for the package on August 13, 2002.

There is no indication of any correspondence between Appellant and the City between August 13, 2002, and November 8, 2002, when Appellant filed his complaint alleging negligence and requesting damages not to exceed $50,000. Also on November 8, 2002, Appellant requested the writ's reissuance ("Writ 2") in accordance with Pa.R.C.P. 401(b),⁴ and served the City Law Department properly by hand delivery by a competent adult, as specified in Pa.R.C.P. 400.1⁵ and 402.⁶ The City filed preliminary objections on November 25, 2002, asserting that delivery of Writ 1 by certified mail in August 2002 did not comply with Pa.R.C.P. 400.1, which requires original process in actions commenced in Philadelphia to be served by either the sheriff or a competent adult, and that the complaint filed in November had not been filed within the two-year statute of limitations period. The City posited that the complaint was untimely, Writ 1 was rendered ineffective because of Appellant's failure to serve properly, and Appellant's claims were therefore time-barred.⁷ Appellant maintained that Writ 1 had been served in compliance with the rules, arguing that the delivery of the writ by the postal worker constituted service by a competent adult.

In January 2003, the trial court overruled the City's preliminary objections. On January 27, 2003, the City requested that the trial court reconsider its order or amend the order to include a statement recommending that the Commonwealth Court grant an immediate appeal of the otherwise interlocutory order. Such amendment was proper, the City argued, because the order involved "a controlling question of law as to which there [was] substantial ground for difference of opinion and that an immediate appeal from the order [might] materially advance the ultimate termination of the matter." 42 Pa.C.S. § 702(b). When the trial court failed to act within thirty days, the petition was deemed denied. See Pa.R.A.P. 1311(b).⁸ The City petitioned the Commonwealth Court for review of the interlocutory issue pursuant to Pa.R.A.P. 1311(b) ("Interlocutory appeals by permission"), which the court granted in May 2003. In response, in June 2003, the trial court filed a brief opinion, stating that Writ 1 was "presented to the City of Philadelphia by good faith effort."⁹

Before the Commonwealth Court, the City asserted that Appellant's failure to comply with the Rules of Civil Procedure relating to service failed to satisfy the good faith requirement of Lamp. Consequently, the City argued for the dismissal of the case.¹⁰ The court recognized that the Rules of Civil Procedure require that original process be "served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint," but allow for repeated reissuance of the writ at "any time and any number of times" if process cannot be served within the thirty-day window. See Pa.R.C.P. 401.

The court noted, however, that the Lamp rule requires plaintiffs to make a good faith effort to effectuate notice upon the defendant in order to keep the action alive. The court rejected Appellant's reliance on Leidich, in which the Superior Court found that a plaintiff, who mailed notice, attempted in good faith to serve the defendant where the plaintiff mistakenly believed that the defendant's insurance company had consented to service by mail and where the parties exchanged documents in the period between the defective service by mail and the re-issuance and proper service of the writ. Leidich, 575 A.2d at 919-20. The Commonwealth Court distinguished the case sub judice, noting that unlike the plaintiff in Leidich, Appellant had not done "anything to keep the legal machinery in play between August 12, 2002 and November 8, 2002." McCreesh, 839 A.2d at 1212.

The Commonwealth Court also relied on its decision in Teamann, 811 A.2d at 62, which required compliance with the Rules of Civil Procedure to find good faith, and in Williams v. SEPTA, 137 Pa.Cmwlth. 163, 585 A.2d 583 (1991), which held that service by mail did not satisfy the Rules of Civil Procedure or the Lamp good faith requirement. McCreesh, 839 A.2d at 1212. Placing the burden of proof on Appellant, the court concluded that Appellant's delivery of Writ 1 by certified mail to the City in August did not constitute a good faith effort to serve the defendant with process under the Lamp rule because Appellant's attempt at service did not comply with relevant rules relating to service of process in Philadelphia County. McCreesh, 839 A.2d at 1213. Accordingly, the court reversed the trial court and remanded with directions to dismiss the case.

Appellant appealed to this Court and we granted review limited to the Lamp issue. Appellant maintains that the Commonwealth Court erred in overturning the decision of the trial court. He asserts that the decision conflicts with Lamp, which was designed to prevent plaintiffs from abusing a loophole in the Rules of Civil Procedure by stalling litigation and providing no notice to defendants of impending claims. Appellant asserts that the trial court acted within its discretion in finding good faith, because Appellant did not act to stall the litigation but instead provided the City with a copy of Writ 1 prior to the expiration of both the statute of limitations and the thirty-day period for service provided by Rule 401. Thus, Appellant maintains, the City suffered no prejudice because it had actual notice that he had commenced litigation regarding the August 12, 2000 accident.¹¹

Appellant draws support from various decisions of the Superior Court that have permitted cases to continue despite technically deficient service where the defendant has actual notice of the litigation and is not prejudiced by the lack of strict compliance with the Rules of Civil Procedure.¹² He maintains that these cases strike the appropriate balance between protecting defendants from unfair surprise and prejudice and plaintiffs from the harsh sanction of dismissal for non-prejudicial procedural missteps. He further argues that this balance comports with the policy expressed in Pa.R.C.P. 126, which provides that the Rules of Civil Procedure "shall be liberally construed" and that courts "at every stage of any such action or proceeding may disregard any error or defect of procedure which does not...