Witherspoon v. City of Philadelphia

• Decision Date: 26 March 2001
• Citation: 768 A.2d 1079,564 Pa. 388
• Parties: John WITHERSPOON, Appellant, v. CITY OF PHILADELPHIA, Appellee.
• Court: Pennsylvania Supreme Court

768 A.2d 1079

564 Pa. 388

John WITHERSPOON, Appellant, v. CITY OF PHILADELPHIA, Appellee.

Supreme Court of Pennsylvania.

Submitted October 19, 1999.

Decided March 26, 2001.

Richard G. Freeman, for John Witherspoon.

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

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice

We granted allowance of appeal to consider the extent of the inquiry to be made regarding a plaintiff's efforts to serve process for purposes of determining whether the filing of a writ of summons tolled the limitation period for commencing an action. We find no error in the decisions below and therefore affirm.

John Witherspoon alleges that he injured his foot when he slipped and fell on a loose shower drain at Holmesburg Prison on September 17, 1994. On March 15, 1995, in compliance with 42 Pa.C.S. § 5522, Witherspoon's counsel notified the City of Philadelphia of his claim. On September 12, 1996, counsel filed a praecipe for writ of summons and the prothonotary scheduled an arbitration hearing for May 14, 1997.

An attempt to serve the writ was unsuccessful. However, it appears that the process server did not, at that time, file either a "return of service" or a "return of no service". The original record contains a form captioned "Affidavit of Service" completed by the process server on April 11, 1997. The first part of the form reads:

I, Joel Rome, on the 11 day of Oct., 1996, did personally serve see below with a copy of the Summons in Civil Action 12:45 P.M. at the above (ADDRESS), pursuant to PA R.C.P. 400.1 relative to service of process for Phila. Cty. I verify that I am over 18 years of age and that the statements of this Return of Service are true, to the best of my knowledge, information and belief, and are made to the provisions of PA. C.S.A. 4904 relating to unsworn statements to authorities.

The second part of the form, which appears immediately below, contains a list of methods of service other than handing a copy of original process to the defendant himself, mirroring Pa.R.C.P. 402(a)(2). As completed by the process server, this section reads:

If service is not made on defendant(s), circle one of the following:

1.) Adult family member with whom defendant(s) resides. Relationship is _____

2.) Adult in charge of defendant(s) residence, named _____. (Refused to give name _____).

3.) Officer, manager or clerk in charge of defendant(s) place of business, named _____ (Refused to give name

4.) Manager/clerk of place of lodging in which defendant(s) reside(s), named _____. (Refused to give name _____)

5.) OTHER: Receptionist stated that parties who normally accept were unavailable _____.

The form contained in the original record bears a stamp indicating that it was filed by the prothonotary on April 24, 1997. The copy of the form contained in the Appellant's Reproduced Record, apparently taken from the files either of counsel or of the firm employed to make service, lacks this stamp. However, a barely legible stamp located in a different area of the form seems to indicate: "RECEIVED 97 APR 15 AM 9:01 PRO PROTHY."

In any event, it appears that based on the title and appearance of the form, upon its filing the prothonotary entered a notation on the docket: "11-OCT-96 12:45:00 AFFIDAVIT OF SERVICE FILED OF SUMMONS BY PERSONAL SERVICE UPON DEFT. CITY OF PHILA." The next docket entry, dated "6-MAY-97", reads: "CORRECTIVE ENTRY. PLEASE NOTE THAT THE AFFIDAVIT OF SERVICE UPON THE CITY OF PHILA. DOCKETED ON OCTOBER 11, 1996 WAS DOCKETED IN ERROR AND SHOULD BE DOCKETED AS ATTEMPTED SERVICE NOT FOUND."

On May 7, 1997, counsel for Witherspoon filed a complaint, indicating that the action had been commenced by writ of summons on September 12, 1996, and that pursuant to Pa.R.C.P. 401(b)(5) the complaint was to be treated as the equivalent of a reissued writ. The complaint was served on June 3, 1997. The City filed preliminary objections asserting that the failure to serve the writ within thirty days as required by Pa.R.C.P. 401(a) or reissue it pursuant to Pa.R.C.P. 401(b)(1) "effectively end[ed] any extension of the two (2) year statute of limitations which expired on September 17, 1996."

The common pleas court sustained the preliminary objections and ordered the service stricken, effectively terminating Witherspoon's action on account of the statute of limitations. Citing Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), as imposing "a good faith requirement upon plaintiffs to effect service," Opinion at 2, R. 21a, the court focused on the fact that Witherspoon made only one unsuccessful attempt to serve the writ of summons between September 1996 and June 1997.

In Commonwealth Court, Witherspoon argued that he should not be faulted for a lack of good faith effort because the reason the writ was not served was the process server's failure to inquire into the status of the City's agents for accepting service and his erroneous filing of a return of service. Witherspoon also argued that his incarceration, and the fact that the City was on notice of his intention to file a claim, were factors to be considered.

Commonwealth Court rejected these arguments, relying on Nagy v. Upper Yoder Township, 652 A.2d 428 (Pa.Cmwlth.1994). In that case, the court stated that lack of good faith could be found even where the plaintiff did not intentionally delay notifying the defendant of the institution of the lawsuit; simple neglect or mistake could support a finding of failure to comply with Lamp. Nagy also held that the notice of intention to file suit against a government unit required by 42 Pa.C.S. § 5522 had no bearing on the inquiry. Such notice does not itself commence an action, and a plaintiff could change his mind and elect not to sue after having given such notice. A government unit having received the initial notice of intention, but not having been served with a writ or complaint within the limitation period, might well be said to have a reasonable expectation that it would not be subject to litigation. Commonwealth Court further held that Witherspoon's incarceration was of no moment, since he was at all times represented by counsel.

Witherspoon argues in this appeal that the common pleas court erred in failing to conduct a hearing, at which he would have had the opportunity to introduce evidence to meet his burden of showing a good faith effort to notify the City of the commencement of the action. He asserts that he would have been able to demonstrate that the neglect or mistake did not lie completely with him; his process server had attempted to serve the writ but it was not accepted because no authorized agent was present at the Law Department to receive it. Witherspoon also asserts that he had obtained a deferral of a scheduled arbitration hearing due to his incarceration "with no recorded opposition on the part of the City." Appellant's Brief at 7. "Where such a waiting period was in effect and the City took no action," he argues, "it cannot be alleged that the plaintiff has stalled at all." Id.

The latter argument can be readily dismissed. The application for stay of the arbitration proceeding was filed on May 7, 1997, the same day the complaint was filed. A letter from the assistant city solicitor to Witherspoon's counsel dated May 6, 1997, which was attached to the application for stay in lieu of a response, indicated that the City "cannot agree to a deferment of the arbitration scheduled for May 14, 1997." It further advised that the City had no record of being served with the writ of summons, suggested that the process server's return of service was actually an affidavit of non-service, and stated that the assistant solicitor had "contacted the Prothonotary to clear-up the apparent discrepancy between the docket entries and the filings."¹ Thus, contrary to Witherspoon's contention, the stay of the arbitration hearing was not "unopposed" and the City cannot be said to have acquiesced in any delay. Indeed, as Witherspoon's application for stay of arbitration proceeding acknowledged, the City contested service of the writ even before the complaint was filed. We next consider Witherspoon's argument that the common pleas court erred in not conducting a hearing. Because this argument can only succeed if the evidence that would have been produced at such a hearing could have affected the outcome, we will accept Witherspoon's "offer of proof" as true for the sake of argument, examining it in the context of the applicable rule.

Prior to Lamp, and before the adoption of the Rules of Civil Procedure, a rule had developed through case law regarding actions commenced by issuance of a writ of summons that allowed the plaintiff to "continue process to keep his cause of action alive" by reissuing the writ within a period of time equivalent to the statute of limitations applicable to the cause of action. Zarlinsky v. Laudenslager, 402 Pa. 290, 167 A.2d 317, 319 (1961). The filing of the praecipe within the statute of limitations commenced the action, and reissuance of the writ kept the action alive for another "equivalent period," whether service was made or even attempted. The purpose of the rule identifying the filing of the praecipe as the commencement of the action, without regard to when the prothonotary actually issued the writ or the sheriff served it, was "to free the plaintiff from the risk that the statute of limitations may bar him if he acts in time, but someone else fails to act in time." Lamp, 366 A.2d at 887, quoting Salay v. Braun, 427 Pa. 480, 235 A.2d 368, 371 (1967).

Lamp represented a first step toward curbing the potential for abuse inherent in this rule. It had apparently become common for counsel to file a praecipe for writ of summons but instruct the prothonotary not to deliver the writ to the sheriff for service. Acknowledging that this practice was consistent with...