Shackelford v. Chester County Hosp.

• Decision Date: 05 March 1997
• Citation: 690 A.2d 732,456 Pa.Super. 356
• Parties: Lisa Costanzo SHACKELFORD, Administratrix of the Estate of Robert Joseph Shackelford a/k/a/ Baby Boy Costanzo, Appellant, v. CHESTER COUNTY HOSPITAL and Albert A. Lucine, Jr., M.D.
• Court: Pennsylvania Superior Court

Page 732

690 A.2d 732

456 Pa.Super. 356

Lisa Costanzo SHACKELFORD, Administratrix of the Estate of

Robert Joseph Shackelford a/k/a/ Baby Boy

Costanzo, Appellant, v. CHESTER COUNTY HOSPITAL and Albert A. Lucine, Jr., M.D.

Superior Court of Pennsylvania.

Argued Jan. 9, 1997.

Filed March 5, 1997.

Joseph J. Schafle, Jr., Philadelphia, for appellant.

George H. Knoell, III, Norristown, for appellee.

Before CIRILLO, President Judge Emeritus, and KELLY and MONTEMURO, ^* JJ.

CIRILLO, President Judge Emeritus:

Lisa Costanzo Shackelford, Adminstratrix of the Estate of Robert Joseph Shackelford (a/k/a Baby Boy Costanzo), appeals from the order entered by the Court of Common Pleas of Chester County granting summary judgment in favor of Appellee, Albert A. Lucine, Jr., M.D. We reverse.

Lisa Shackelford commenced this negligence action against Appellee Albert A. Lucine, Jr., M.D. (Lucine) and the Chester County Hospital (Hospital) following medical care provided by Appellee and the Hospital to Appellant and her deceased infant son. Appellant alleges that Dr. Lucine failed to determine the correct due date of her baby, resulting in a failure to induce and deliver the baby in a timely manner. ¹ Fetal distress following the infant's birth led to his death on October 30, 1983.

On October 25, 1985 Appellant commenced her action against Lucine and the Hospital by filing a praecipe for writ of summons. ² See Pa.R.C.P. 1007. A sheriff later attempted to serve the writ upon Lucine, on five separate occasions, at the doctor's office located in the Paoli Memorial Medical Building. The sheriff's attempts, however, proved unsuccessful. ³ A sheriff's return card indicated the following dates and results of the attempts at service: 10/30/85--Bad address; 10/30/85--office closed; 11/07/85--office closed; 11/08/85--office closed; 11/12/85--office closed.

Lucine moved for summary judgment asserting that Appellant's action was barred because Shackelford failed to make a good faith effort to effect timely service of the writ upon him within the 30-day period prescribed by our rules of civil procedure. ⁴ By not serving the writ in a timely fashion, he claims that Appellant failed to toll the statute of limitations period on her action. The trial court agreed and granted the motion, stating:

Our decision is controlled by the absence of any later attempts on the part of plaintiff [Appellant] to correct the address [of Lucine's office], if necessary, or to attempt service at another location. Even the sheriff, following the unsuccessful service attempts, suggested ... "try home address maybe." Plaintiff's failure, for a period of nearly a year, to take any affirmative measures to effect service constitutes an absence of good faith.... Simple and easy measures could have been taken to locate and serve Dr. Lucine.

Appellant attempted to certify this order for immediate appeal. The trial court denied certification and the appellant filed a petition to review in the superior court. Our court issued a per curiam order denying Shackelford's petition to review, pursuant to Pa.R.A.P. 702(b), finding that the order was not final and appealable because the Hospital remained a party to the underlying litigation. See Pa.R.A.P. 341(c) (any order that adjudicates fewer than all the claims or parties shall not constitute a final order). The case proceeded to trial against the Hospital. During trial, however, the parties agreed to settle the action and a praecipe to settle, discontinue and end the case was entered. ⁵ Shackelford then filed a second, timely notice of appeal with regard to the December 1, 1994 summary judgment order. Shackelford now asserts the following issue for our review: Did the trial court err in granting Summary Judgment to Appellee, Albert A. Lucine, Jr., M.D.?

When we review the grant of a motion for summary judgment, our scope of review is well-settled: summary judgment is properly granted where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

Appellant contends that she conducted a good faith effort to effectuate service of the writ upon Dr. Lucine and that she was not required to repeatedly attempt to serve Dr. Lucine until such efforts proved successful. Accordingly, Shackelford claims that because the law of this Commonwealth only requires that plaintiffs make "an initial good faith attempt to serve the Defendant by promptly delivering the Writ, instructions and fee to the Sheriff," the trial court erred in granting Lucine's summary judgment motion. We agree.

Under Pennsylvania Rule of Civil Procedure 1007, a plaintiff may commence a civil action by filing with the prothonotary either a praecipe for a writ of summons or a complaint. Pa.R.C.P. 1007. The rules also require that "original process ... be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint." Pa.R.C.P. 401. Furthermore, original service may be effectuated in any of the following ways:

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

(2) by handing a copy

(1) 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. 402(a) (emphasis added).

It is well recognized that the filing of a praecipe to commence an action is sufficient to toll the running of the statute of limitations. Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976). Plaintiffs, however, are required to make a good faith effort to notify a defendant of a commenced action; "good faith" is to be assessed on a case-by-case basis. Farinacci v. Beaver County Indus. Dev. Auth., 510 Pa. 589, 511 A.2d 757 (1986), accord Green v. Vinglas, 431 Pa.Super. 58, 635 A.2d 1070 (1993). The purpose of a "good faith" requirement is "to avoid the situation in which a plaintiff can bring an action, but, by not making a good faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations." Schriver v. Mazziotti, 432 Pa.Super. 276, 280, 638 A.2d 224, 225 (1994) (quoting Lamp v. Heyman, 469 Pa. 465, 477-79, 366 A.2d 882, 889 (1976)).

The trial court relies upon our supreme court's landmark case, Lamp v. Heyman supra, to justify its decision to grant summary judgment in favor of Lucine. In Lamp, after the plaintiff sustained injuries from an automobile accident, plaintiff's attorney filed a praecipe for writ of summons in trespass against the defendants in the Beaver County Court of Common Pleas within the applicable two-year statute of limitations period. Due to faulty instructions given by plaintiff's attorney, however, the prothonotary failed to deliver the writ to the sheriff so that it could be issued. Consequently, the writ was never served upon defendants within the statute of limitations. The plaintiff subsequently filed a praecipe for reissuance of the writ with a complaint. Again, service was never effectuated. Plaintiff then filed a second praecipe for reissuance of the writ upon which service was finally made. Defendants then filed preliminary objections asserting that the original writ of summons was a "nullity" due to the attorney's faulty instructions to the prothonotary, ⁶ and, therefore, the action was barred for failure to commence the action within the appropriate statute of limitations period.

The trial court sustained the defendants' objections and entered judgment in their favor. Our court affirmed the trial court on appeal. On petition to the supreme court, Justice Eagen reversed the Pennsylvania Superior Court decision and refused to find the plaintiff's action barred by the statute of limitations. In its decision, the supreme court made the following proclamation:

[P]ursuant to our supervisory power over Pennsylvania courts, we rule that henceforth, i.e., 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 (emphasis added).

The facts of the present case reveal the following: on October 25, 1985, Appellant filed the praecipe and issued the writ of summons against Dr. Lucine. The defendants' alleged negligence, which consisted of Appellant's pre-natal care, the delivery of the baby, and post-natal care of the baby, accrued on October 30, 1983--the date of Baby Boy Costanzo's death. See Moyer v. Rubright, 438 Pa.Super. 154, 651 A.2d 1139 (1994) (medical malpractice action brought by husband following wife's death due to failure to diagnose wife's breast cancer is derivative of original tortious act which would have supported decedent's own cause of action;...