Moses v. TNT Red Star Exp.

• Decision Date: 17 February 1999
• Citation: 725 A.2d 792,1999 PA Super 31
• Parties: Patrick MOSES, Appellant, v. T.N.T. RED STAR EXPRESS and Michael Patrick Nugent, Appellees.
• Court: Pennsylvania Superior Court

725 A.2d 792

1999 PA Super 31

Patrick MOSES, Appellant, v. T.N.T. RED STAR EXPRESS and Michael Patrick Nugent, Appellees.

Superior Court of Pennsylvania.

Argued October 23, 1997.

Filed February 17, 1999.

Agostino Cammisa, Philadelphia, for appellant.

John F. Kent, Philadelphia, for appellees.

Before McEWEN, President Judge, CERCONE, President Judge Emeritus, and BECK, J.

CERCONE, President Judge Emeritus:

¶ 1 This is an appeal of an order of the Trial Court granting summary judgment in favor of the Defendants/Appellees, T.N.T. Red Star Express and Michael Patrick Nugent, and against the Plaintiff/Appellant, Patrick Moses. We affirm.

¶ 2 On October 25, 1993, the Appellant was walking his bicycle along a road in Philadelphia, when, he alleges, he was struck by a truck owned by Appellee, T.N.T. Red Star Express and operated by Appellee Michael Patrick Nugent. Plaintiff's Complaint filed 3/15/96 at ¶ 2. The Appellant originally commenced his action against both defendants by the filing of a Praecipe for a Writ of Summons. This was filed on October 19, 1995. At the time of filing, the Appellant's attorney was Mr. John C. Johnson III ¶ 3 There were no further entries on the docket until March 14, 1996 when the Appellant, still represented by Mr. Johnson, filed a Praecipe to Reissue the Writ of Summons. On March 15, 1996 the Appellant filed a Complaint, which the docket indicates was subsequently served on both Appellees.¹ Appellees filed an Answer to the Complaint on April 8, 1996 and raised, by way of New Matter, the defense that the Appellant's Complaint was barred by the statute of limitations. Defendant's Answer filed 4/8/96 at ¶ 17.

¶ 4 On August 21, 1996, Appellant's present counsel, Mr. Agostino Cammisa entered his appearance for the Appellant.² On August 29, 1996 the Appellees filed a motion for summary judgment, seeking judgment as a matter of law based on the Appellant's failure to serve the Writ and complaint within the statute of limitations. Defendant's Motion for Summary Judgment filed August 29, 1996 at ¶ 14. On September 27, 1996 the Appellant filed a response in which he alleged that good faith attempts to serve the Appellees had been made and that he wished leave of court to conduct discovery to establish factually that good faith attempts had been undertaken prior to the reinstatement of the initial praecipe on March 14, 1996. Plaintiff's Response to Defendant's Motion For Summary Judgment dated 9/27/96 at ¶'s 14-15, 16-19. On October 15, 1996 the Trial Judge, the very learned and distinguished Honorable Mark I. Bernstein, issued an order allowing the parties an additional thirty (30) days to conduct discovery on the issues raised in the summary judgment motion. The Trial Judge indicated in his order that he would rule on the motion after discovery had been completed and both parties had submitted memorandums. Order of Court entered October 16, 1996. However, the record is devoid of any activity until January 27, 1997 when the learned Trial Judge ruled on the Motion for Summary Judgment and granted the Appellee's motion, dismissing Appellant's claims with prejudice. Order of Court entered January 28, 1997. On February 14, 1997, the Appellant filed a timely Notice of Appeal to our Court from this order.

¶ 5 However, the taking of an appeal to our Court did not end the proceedings in the Trial Court. Prior to the filing of his notice of appeal, on January 24, 1997 Appellant had also filed a Motion to Amend the [Trial Court's] Order of October 15, 1996. The Trial Court apparently did not receive this motion until February 26, 1997. Trial Court Opinion dated 4/22/97 at 2.³ Despite the appeal having been filed, the Trial Court chose to act on this motion. It issued an order on March 3, 1997 in which it professed to modify its order of October 15, 1996 and allowed the parties until April 10, 1997 to "conduct discovery on the issues raised by the defendant's motion for summary judgment." Id. Then, the Trial Court on April 1, 1997 entered an order that purported to vacate its January 27, 1997 order granting summary judgment and allowed the parties until May 10, 1997 to continue to conduct discovery. Id.

¶ 6 On June 4, 1997 Appellant filed with our Court a motion to remand. This was, however, denied by our Court by order on June 25, 1997. The case was then fully briefed and argued before our Court. Because the opinion which we originally received from the Trial Court dated April 22, 1997 only addressed the procedural history of the case and respectfully requested remand, we did not have before us reasons of record why the Trial Court entered summary judgment. To better understand the reasons for the Court's order of January 27, 1997, pursuant to Pa. R.A.P., Rule 1925(a), we remanded this case by memorandum dated April 6, 1998 to the Trial Court for the preparation of a Trial Court opinion, but we retained jurisdiction. The Trial Court fully complied with our order and prepared a thorough and comprehensive opinion, which has been of inestimable value to us.⁴

¶ 7 During the pendency of this appeal the Supreme Court of Pennsylvania handed down three decisions Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998), Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998) and Marino v. Hackman, 551 Pa. 369, 710 A.2d 1108 (1998). Appellant sought leave of our Court to file a supplemental memorandum of law in order to address the applicability of these decisions to the case at bar. We granted Appellant leave to file the requested supplemental memorandum, which he promptly did. We also granted Appellees' subsequent application to submit a reply to the Appellant's supplemental memorandum, and Appellees' reply was thereafter timely submitted to our Court. We will address the matters raised by Appellant's supplemental memorandum and Appellees' reply during the course of our discussion of the issues, which Appellant has presented to our Court in his original appeal.

¶ 8 The issues which Appellant has presented to our Court for consideration are:

[I.] Should this matter be remanded to the trial court to complete discovery on the service issue?

[II.] Did the trial court commit an error of law or clearly abuse its discretion by granting Summary Judgment to defendants/appellees on the ground that plaintiff/appellant did not satisfy the requirements of service under Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) and its progeny?

[III.] Did defendant's waive their objection to timing of service by participating in discovery and by withholding physical evidence, that is plaintiff's bicycle?

Appellant's Brief at 3. Since these issues are so closely intertwined we shall address them simultaneously.

¶ 9 We begin by noting our standard of review. 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. Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa.Super.1998). Our scope of review is, however, plenary in nature. Cunningham v. McWilliams, 714 A.2d 1054, 1056 (Pa.Super.1998), appeal denied, ___ Pa. ___, ___ A.2d. ___, 1999 WL 8389, 1999 Pa. Lexis 40 (Pa. Jan. 12 1999).

¶ 10 Consequently:

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.

Borough of Mifflinburg v. Heim, 705 A.2d 456, 465 (Pa.Super.1997); Kingston Coal Co. v. Felton Mining Co., 456 Pa.Super. 270, 690 A.2d 284, 287 (1997), appeal denied, 549 Pa. 702, 700 A.2d 441 (1997). Under Pa. R.C.P. 1035.2(2) summary judgment is explicitly permitted if the "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 issues to be submitted to a jury." Pa.R.C.P. 1035.2(2); Knoud v. Galante, 696 A.2d 854, 855 (Pa.Super.1997).

¶ 11 In the seminal case of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) our Supreme Court discussed the issue of whether the filing of a praecipe for writ of summons to commence an action within the time provided for by the statute of limitations for the underlying action tolls the running of the statute of limitations, if service is not effectuated until after the statute of limitations has run. Our Supreme Court said:

[In] actions instituted subsequent to the date of this decision, 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 478, 366 A.2d at 889.

¶ 12 This language has been interpreted by subsequent caselaw to mean that the filing of a praecipe for a writ of summons will only toll the statute of limitations if, during the life of the writ, the plaintiff makes a good faith attempt to effectuate service of the writ. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 594, 511 A.2d 757, 759 (1986); Siler v. Khan, 456 Pa.Super. 177, 689 A.2d 972, 973 (1997). What constitutes a "good faith" effort to serve legal process is a matter to be assessed on a case by case basis. Farinacci at 594, 511 A.2d at 759; Otterson v. Jones, 456 Pa.Super. 388, 690 A.2d 1166, 1167 (1997), appeal denied 553 Pa. 421, 719 A.2d 309 (1998).

¶ 13 Our Rules of Civil Procedure require that original process such as a praecipe for writ of summons is to be...