John C. Englert and Renne A. Englert v. Fazio Mechanical Services, Inc. and C.J. Timko

1 Appellants, John and Renee Englert, appeal from the order granting
summary judgment in favor of Appellees in this negligence case. On
January 18, 2007, the prior decision of this panel affirming the trial court's
order was vacated by our Supreme Court, and the case was remanded.1
After further consideration, and for the following reasons, we affirm.

2 The trial court accurately summarized the relevant facts and
procedural history as follows.

[Appellants'] causes of action stem from a traffic accident
which occurred on March 25, 2002. They allege damages
caused by the negligence of [Appellee] Timko, acting in the
course and scope of his employment with [Appellee] Fazio
Mechanical Services, Inc. (Fazio). [Appellants] commenced
this case by filing a Praecipe for a Writ of Summons on
September 19, 2003. * * * The address [Appellants] gave
to the Allegheny County Sheriff's Department to serve Fazio
[and Timko], i.e., 56th and Harrison Streets, was taken from
the business listings of the "Greater Pittsburgh telephone
directory." Fazio had moved from this address on March
21, 2003, almost six months before the original praecipe for
writ of summons was filed.

The Allegheny County Sheriff's Department filed a Return of
Service on October 23, 2003, indicating that [Appellees]
were not found because they had moved. The return gave
the new address as 300 South Main Street, Pittsburgh, PA
15215. In Allegheny County, docket entries and the
documents are accessible on the Prothonotary's website.
[Appellants'] counsel did not check the docket or contact
the Sheriff's office to determine whether service of the
original writ of summons had been made. Instead,
[Appellant's] counsel waited for the Sheriff to mail him a
copy of the return. On October 27, 2003, [Appellants']
counsel moved his office and was experiencing failed mail
deliveries.

Husband-[Appellant] received a letter from [Appellees']
liability carrier dated March 11, 2004. The letter inquired
whether [Appellant-Husband] was "making a claim for his
injury" and advised him that "[y]our statute of limitations
will end on 3/25/04" and "if you do not present a claim
before that date you will be barred from presenting an
injury claim." In March 2004, [Appellants'] counsel received
a copy of the Sheriff's return via the mail. On March 31,
2004, he filed a Praecipe to Reissue the Writ of Summons.

This was two years and six days after the accident.

Trial Court Opinion, 12/16/05, at 1-3 (citations to record and footnote
omitted).

3 After the pleadings were closed, Appellees filed a motion for summary
judgment asserting that Appellants' claims were barred by the statute of
limitations. The trial court agreed and granted summary judgment in favor
of Appellees. This timely appeal followed.

4 "Our scope of review of a trial court's order granting or denying
summary judgment is plenary, and our standard of review is clear: the trial
court's order will be reversed only where it is established that the court
committed an error of law or abused its discretion." Cruz v. Princeton Ins.
Co., 2007 PA Super 152, 7 (filed May 30, 2007)(citation omitted).
Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
matter of law. The reviewing court must view the record in
the light most favorable to the nonmoving party and resolve
all doubts as to the existence of a genuine issue of material
fact against the moving party. Only when the facts are so
clear that reasonable minds could not differ can a trial court
properly enter summary judgment.
Kvaerner Metals Division of Kvaerner U.S., Inc. v. Commercial Union
Ins. Co., 589 Pa. 317, 329, 908 A.2d 888, 895-96 (2006)(citations
omitted).

5 It is well settled in this Commonwealth pursuant to Lamp v. Heyman,
469 Pa. 465, 366 A.2d 882 (1976), and Farinacci v. Beaver County
Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986),
that service of original process completes the progression of events by which
an action is commenced. Once an action is commenced by writ of summons
or complaint the statute of limitations is tolled only if the plaintiff then
makes a good faith effort to effectuate service. Moses v. T.N.T. Red Star
Express, 725 A.2d 792 (Pa. Super. 1999), appeal denied, 559 Pa. 692, 739
A.2d 1058 (1999). "What constitutes a ‘good faith' effort to serve legal
process is a matter to be assessed on a case by case basis." Id. at 796;
Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004)(citations omitted).
"[W]here noncompliance with Lamp is alleged, the court must determine
in its sound discretion whether a good-faith effort to effectuate notice was
made." Farinacci at 594, 511 A.2d at 759.

6 In making such a determination, we have explained:
It is not necessary [that] the plaintiff's conduct be such that
it constitutes some bad faith act or overt attempt to delay
before the rule of Lamp will apply. Simple neglect and
mistake to fulfill the responsibility to see that requirements
for service are carried out may be sufficient to bring the rule
in Lamp to bear. Thus, conduct that is unintentional that
works to delay the defendant's notice of the action may
constitute a lack of good faith on the part of the plaintiff.
Devine, supra at 1168 (quoting Rosenberg v. Nicholson, 597 A.2d 145,
148 (Pa. Super. 1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (1992)).
"[A]lthough there is no mechanical approach to be applied in determining
what constitutes a good faith effort, it is the plaintiff's burden to
demonstrate that his efforts were reasonable." Bigansky v. Thomas
Jefferson University Hospital, 658 A.2d 423, 433 (Pa. Super. 1995),
appeal denied, 542 Pa. 655, 1668 A.2d 1119 (1995).

7 Our Supreme Court remanded this case to this Court for application of
its recent decision in McCreesh v. City of Philadelphia, 585 Pa. 211, 888
A.2d 664 (2005).2 In McCreesh, the appellant claimed he was injured on
August 14, 2000 when a tree struck his vehicle. The appellant filed a
praecipe for a writ of summons on August 12, 2002 against the City of
Philadelphia where the tree had been growing. The appellant attempted
service of the writ via certified mail to the city's law department, and the
writ was delivered by the postal service. On November 8, 2002, the
appellant filed a complaint and requested reissuance of the writ which was
properly served pursuant to the Rules of Civil Procedure. The trial court
denied the City's preliminary objections which claimed that proper service
was not made within the applicable statute of limitations. The
Commonwealth Court granted review and reversed, concluding that the
appellant did not make a good faith effort to serve the defendant; it
remanded with instructions to the trial court to dismiss the case.

8 Our Supreme Court granted allowance of appeal "to clarify what
constitutes a good faith effort by a plaintiff to effectuate notice to a
defendant of the commencement of an action." 585 Pa. at 213, 888 A.2d at
665. The Court reviewed the rules set forth in Lamp and Farinacci as well
as the appellate decisions which followed. It also reiterated the wellestablished
principle that the "purpose of any statute of limitations is to
expedite litigation and thus discourage delay and the presentation of stale
claims which may greatly prejudice the defense of such claims." Id. at 222,
888 A.2d at 671 (citation omitted). The Court further observed that, "once
the action has been commenced, the defendant must be provided notice of
the action in order for the purpose of the statutes of limitations to be
fulfilled." Id. at 222, 888 A.2d at 671. It quoted Lamp's holding 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 223, 888 A.2d
at 672 (quoting Lamp at 478, 366 A.2d at 889). The Court also noted that
it had "subtly altered" its holding in Lamp in Farinacci by "requiring
plaintiffs to demonstrate ‘a good-faith effort to effectuate notice of
commencement of the action.'" McCreesh at 224, 888 A.2d at 672 (quoting
Farinacci at 594, 511 A.2d at 759). The inquiry into "whether a plaintiff
acted in good faith lies within the sound discretion of the trial court."
McCreesh at 224, 888 A.2d at 672.

9 The McCreesh Court explained that it was "merely reanimating the
purpose" of Lamp, and it approved of an approach which would dismiss a
plaintiff's complaint where he or she either "demonstrated an intent to stall
the judicial machinery" or where his or her noncompliance with the
procedural rules resulted in prejudice. Id. at 227, 888 A.2d at 674. In
other words, the Court concluded that where a plaintiff "has satisfied the
purpose of the statute of limitations by supplying a defendant with actual
notice," noncompliance with the Rules would be excused under Lamp. Id.
at 227, 888 A.2d at 674.

10 In reversing the Commonwealth Court, the Supreme Court in
McCreesh emphasized that the appellant provided actual notice to the
defendant of the commencement of the suit. Id. at 228, 888 A.2d at 674.3
It further directed the Commonwealth Court to remand for a factual
determination of whether the defendant suffered prejudice from the
appellant's delay in effectuating service. Id. at 228, 888 A.2d at 674.

11 In the case at bar, the trial court reviewed the facts surrounding the
original filing of the praecipe for writ of summons and carefully considered
Appellants' actions, as well as their inaction, after September 19, 2003.
Trial Court Opinion, 12/16/05, at 2-5. The trial court noted that Appellants
had provided an old address for Fazio Mechanical Services, Inc. to the
Sheriff and that Fazio had moved from that location on March 21, 2003 six
months before. Id. at 2-3. Next, the Sheriff's office filed its return of
service on October 23, 2003, which not only indicated that Appellees had
moved but also provided the new address; a copy of the return was also
mailed to Appellants' counsel. Id. at 3. The trial court additionally observed
that counsel for Appellants had moved his own offices after filing the
praecipe for the writ but, despite experiencing resulting difficulties with mail
delivery, nonetheless failed to make any inquiry as to whether service of this
writ had been effectuated. Id. at 3-5. The trial court further pointed out
that Appellees' insurance company had written to Appellants on March 11,
2004 (six months after the writ was issued) inquiring whether Appellants
would be making any claim and informing them of the date that the statute
of limitations would expire (two weeks after the date of the letter). Id. at
3, 5. Each of these factual findings is supported by the record. See
Certified Record (C.R.) at 3 (Sheriff's Return of Service); C.R. at 14 (Exhibit
E to Appellees' motion for summary judgment); C.R. at 16 (Affidavit of
counsel for Appellants) at 9, 10, 12, 13; C.R. at 18 (Joint Stipulation of
Fact).

12 The trial court's conclusion that Appellants failed to establish that they
made a good faith effort to accomplish service is a factual matter within its
sound discretion. McCreesh at 224, 888 A.2d at 672.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or
ill-will, as shown by the evidence or the record, discretion is
abused.
Falcone, Inc. v. The Insurance Co. of the State of Pennsylvania, 907
A.2d 631, 636 (Pa. Super. 2006), appeal denied, ___ Pa. ___, 917 A.2d 312
(2007)(citation omitted). We discern no abuse of discretion under the
circumstances presented here, where Appellants took no action whatsoever
once the writ was issued to ascertain whether service was properly made
and relied instead on counsel's customary practice of waiting for word from
the Sheriff's office, no matter how long that might take and in spite of the
difficulties he had experienced receiving his mail in a timely manner.
Appellants' conduct clearly amounted to "neglect … to fulfill the responsibility
to see that requirements for service [were] carried out." Devine, supra at
1168 (citation omitted). In other words, Appellants' inaction demonstrated
an intent to stall the judicial machinery which was put into motion by the
filing of the initial writ and simply cannot be excused.4 McCreesh at 227,
did not matter what the sheriff stated about a new address because the
Plaintiffs had two additional years to reinstate the writ and to serve it,"
Appellants' substituted brief on remand at 23, 32, provide further support
for the conclusion that Appellants' inaction amounted to a failure to complete
the progression of events necessary to commence an action. This is
particularly so in light of counsel's affidavit in which he acknowledges that he
has "experienced numerous examples of extremely tardy mail delivery" from
county offices such as the sheriff's (C.R. at 16 (Affidavit of counsel for
Appellants) at 12) and that since October of 2003 he "has experienced an
inordinate number of failed mail deliveries due to the move of his offices."
(id. at 13). The Sheriff's Return with Appellees' correct address was filed
of record on October 23, 2003, more than five months before the statute of
888 A.2d at 674. Appellants' contention that "[t]he filing of a praecipe for
writ of summons and the delivery of the writ one time is all that the law
requires," Appellants' brief at 17 (emphasis in original), is, quite simply,
contrary to the case law in this Commonwealth.

13 Furthermore, and unlike in McCreesh, Appellants did not provide
Appellees with actual notice of the commencement of the action within the
applicable statute of limitations.5 Instead, Appellees had only notice that
there was a potential for litigation, which is not the same and cannot suffice.
See McCreesh at 224 n.17, 888 A.2d at 672 n.17 (observing that, in
Farinacci, the defendant "had notice of the potential for litigation, [but] it
did not have actual notice of the commencement of the litigation within the
statute of limitations period."). In short, our Supreme Court's decision in
McCreesh to adopt a "more flexible approach" to prevent "dismissing claims
limitations would expire. C.R. at 3. Furthermore, this Court has observed
that "it is entirely foreseeable that potential defendants may move" and that
a plaintiff is obligated to exercise reasonable diligence in locating a
defendant within the limitations period. Johnson v. Stuenzi, 696 A.2d 237,
240 (Pa. Super. 1997).
based on technical failings"6 simply does not provide authority for granting
relief to Appellants.7

14 In conclusion, and based on the foregoing, we discern no error or
abuse of discretion in the trial court's conclusion that Appellants failed to
demonstrate a good faith effort to effectuate service in this case.
Furthermore, application of McCreesh does not provide an avenue for
Appellants to pursue their claim. Accordingly, there is no basis to disturb
the entry of summary judgment in favor of Appellees. See Devine, supra,
at 1167 (stating that summary judgment is proper if the action is barred by
the applicable statute of limitations).

¶ 15 Request to withdraw motion to strike Appellees’ brief granted. Order
affirmed.