Otterson v. Jones

• Decision Date: 17 April 1997
• Parties: Agnes OTTERSON, Appellant, v. Allen JONES, Appellee.
• Court: Pennsylvania Superior Court

Page 1166

690 A.2d 1166

456 Pa.Super. 388

Agnes OTTERSON, Appellant, v. Allen JONES, Appellee.

Superior Court of Pennsylvania.

Argued Sept. 18, 1996.

Filed Feb. 14, 1997.

Reargument Denied April 17, 1997.

Evan Aidman, Newtown Square, for appellant.

William H. Resch, Jr., Philadelphia, for appellee.

Before DEL SOLE, BECK and POPOVICH, JJ.

POPOVICH, Judge:

The plaintiff/appellant, Agnes Otterson, appeals the order granting the Motion for Judgment on the Pleadings of the defendant/appellee, Allen Jones. We reverse.

"Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise.... The party moving for the judgment on the pleadings admits for the purpose of his motion the truth of all the allegations of his adversary and the untruth of any of his allegations which may have been denied by his adversary."

Beck v. Minestrella, 264 Pa.Super. 609, 401 A.2d 762, 763 (1979) (Citations omitted).

Under the preceding standard, we begin by observing that this case arose out of an alleged automobile accident occurring on August 13, 1992, whereby the plaintiff was struck from behind by the defendant causing her personal injury. Suit was instituted by complaint on April 29, 1994, and listed the defendant's address as 1707 Coolidge Avenue, Willow Grove, Pennsylvania. Service on the day the complaint was filed proved unsuccessful, as did a second attempt the following day. ¹ Likewise, the plaintiff's request for a change of address from the post office in Willow Grove (dated 7/12/94) resulted in a response that the defendant was "[n]ot known at the address given". Also, a search with the Pennsylvania Department of Transportation (dated 7/12/94) and inquiry of the plaintiff's insurance carrier ² (dated 7/29/94) proved fruitless.

It was not until counsel for the plaintiff's insurer (Utica) informed the plaintiff by letter dated 3/28/95 that the defendant resided at 5302 Catherine Street, Philadelphia, that the complaint was reinstated April 5, 1995, with service made on April 15, 1995. In his Answer, the defendant admitted the Willow Grove address was accurate, but he averred in New Matter that the plaintiff's failure to serve the complaint within two years of the accident rendered it time-barred by the applicable statute of limitations and Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). The court below agreed and entered judgment for the defendant. This appeal followed and claims that the plaintiff made a "good faith" effort (per Lamp ) to serve the defendant.

Lamp and its progeny require that the tolling effect of the statute of limitations will be extended to plaintiffs who make a "good faith" effort to effectuate service, and, in the process, refrain from conduct which serves to stall in its tracks the machinery he/she set in motion. What constitutes a "good faith" effort to serve legal process is a matter to be assessed on a case-by-case basis. See Leidich v. Franklin, 394 Pa.Super. 302, 575 A.2d 914 (1990).

At bar, the complaint for injuries sustained on August 13, 1992, was filed April 29, 1994. With service made on April 15, 1995, we need to evaluate the measures taken to give the defendant notice of the lawsuit between April 29, 1994, and April 15, 1995. Toward that end, the record reveals that:

1) The same day the complaint was filed, service at the defendant's Willow Grove address proved unsuccessful; ³

2) Conversation with the defendant's Willow Grove neighbors on April 29, 1994, disclosed that the defendant allegedly moved one and one-half years earlier 3) A second attempt to serve the defendant following the initial effort proved equally fruitless, along with finding no mail on either occasion listing the defendant as the addressee at the Willow Grove location;

4) The plaintiff contacted directory assistance on June 30, 1994, and learned that there was no listing for the defendant in Willow Grove;

5) A request of the Willow Grove postmaster for a change of address for the defendant produced a return on July 19, 1994, that the defendant did not receive mail there;

6) A July 12, 1994, search with the Pennsylvania Department of Transportation produced no record of any vehicles owned by the defendant at the Willow Grove site;

7) On July 29, 1994, the plaintiff informed her insurance carrier (Utica) of her unsuccessful efforts to locate the defendant, and she asked what, if any, additional steps could be taken to protect Utica's subrogation rights with her submission of a claim for uninsured motorist coverage;

8) Utica advised the plaintiff by letter dated March 28, 1995, that it wished to have its subrogation rights protected and released the defendant's Philadelphia address; and

9) The defendant was served on April 15, 1995.

It is the court's conclusion that the plaintiff failed to preserve her cause of action prior to the expiration of the statute of limitations, a matter which allegedly could have been avoided had she "filed a petition for alternate service". See Court Opinion at 6.

The Rule allowing for the grant of "special" service by order of court lists conditions precedent to secure such relief; to-wit:

(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accomplished by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.

Note

A sheriff's return of "not found" or the fact that a defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. Notice of intented adoption mailed to last known address requires a "good faith effort" to discover the correct address.

An illustration of a good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 295, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.

Pa.R.Civ.P. 430 and Note (Citations omitted; emphasis added).

The criteria listed in the Note to Rule 430 mirror in part ⁴ those measures implemented by the plaintiff to locate the defendant. Therefore, we do not embrace the view of the court that the mere "filing" of a petition for alternate service would have had the talismanic effect of preserving the plaintiff's cause of action. Rather, one needs to examine the basis for a Rule 430 service. In like fashion, the assessment of one's "good faith" effort to serve legal process to toll the statute of limitations necessitates review of the basis for such a claim before the insulating effect of Lamp is triggered.

We have engaged in such a review here and hold that the conduct of the plaintiff was consonant with Lamp's "good faith" effort to locate the defendant and toll the statute of limitations. For example, the plaintiff: 1) attempted service (twice) at the address "admitted" by the defendant (in his Answer to the plaintiff's complaint) to be accurate; 2) the defendant's neighbors were unable to shed light on where he lived; 3) on-site examination of the Willow Grove address produced no mail in the defendant's name; 4) communication with governmental agencies (i.e., the post office and Department of Transportation) was to no avail; 5) the defendant's insurer had no knowledge of his whereabouts; 6) directory assistance was unable to provide a phone number for the defendant; and 7) the plaintiff sought assistance from her insurer to locate the defendant.

We view the preceding as uncharacteristic of simple negligence or mistake assigned to plaintiffs whose suits have been dismissed as violative of the Lamp "good faith" standard. See, e.g., Cahill v. Schults, 434 Pa.Super. 332, 643 A.2d 121 (1994)(Plaintiff's failure to attach check to pay for sheriff's service, although the product of mistake or inadvertence, failed to satisfy the "good faith" needed to overcome non-compliance with Lamp ); Rosenberg v. Nicholson, 408 Pa.Super. 502, 597 A.2d 145 (1991)(Plaintiff's service of complaint at incorrect address twice, even after receiving correct address from post office after first incorrect service, was inexcusable under Lamp ); Williams v. SEPTA, 137 Pa.Cmwlth. 163, 585 A.2d 583 (1991)(Plaintiff made no attempt to thwart service, but he took no affirmative action to insure the writ was served in accordance with the Rules of Civil Procedure--sheriff versus mail); Feher v. Altman, 357 Pa.Super. 50, 515 A.2d 317 (1986)(Although plaintiff did not actively attempt to thwart service, the failure to prepay the sheriff or give the sheriff instructions amounted to the absence of affirmative action to see that the writ was served).

We, unlike the court below, equate the plaintiff's efforts to find the defendant with a "good faith" expenditure of energy required by Lamp and its progeny to avoid termination of this lawsuit for exceeding the statute of limitations. See Leidich, supra. The plaintiff, when confronted with the absence of the defendant at his Willow Grove address, utilized alternate means in an attempt to search for the defendant. See Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982)(It is reasonable to expect that a plaintiff, if he knows that process could not be served at a given address, will employ alternate means to effectuate service: check phone book, city directory, or license files).

Thus, we have a suit in which the plaintiff did attempt to effectuate service by a "good faith" effort to locate the defendant. Contrast Rosenberg, supra. Her actions were numerous and extensive in seeking the defendant's whereabouts, a...