Gussom, R. v. Teagle, M.

J-A13027-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
RHASHEENA GUSSOM, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MAURICE TEAGLE, :
:
Appellee : No. 3245 EDA 2018
Appeal from the Order Entered October 3, 2018
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 03821 April Term, 2018
BEFORE: SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.:FILED SEPTEMBER 26, 2019
Although counsel for Appellant failed to ensure service of process
within two years of the applicable statute of limitations, the trial court erred
in granting Teagle’s preliminary objections and dismissing Gussom’s
complaint with prejudice. Accordingly, I respectfully dissent.
[T]he 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.
To this end, our legislature has enacted statutes of limitations
that require actions to be “commenced” within certain time-
frames depending on the nature of the underlying
claims. See 42 Pa.C.S. §§ 5522–30. A matter “is commenced”
when a “document embodying the matter” is filed in the
appropriate office. See id. § 5503. Moreover, the Rules of Civil
Procedure promulgated by this Court pursuant to Article V,
Section 10(c) of the Pennsylvania Constitution provide that “[a]n
action may be commenced by filing with the prothonotary (1) a
praecipe for a writ of summons, or (2) a
complaint.” See Pa.R.C.P. 1007.
* Retired Senior Judge assigned to the Superior Court.
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It is self-evident 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 limitation to be
fulfilled. Therefore, [our Supreme] Court has set forth rules
governing service of original process to ensure such
notice. See Pa.R.C.P. 400–430. Rules 400 and 400.1 designate
who may make service, and Rule 402 provides for the manner of
service. …
Rule 401 limits the time between filing and service.
Specifically, subsection (a) requires service of original process
within thirty days of the issuance of the writ [or the filing of the
complaint]. If a plaintiff fails to comply with subsection (a), the
claim remains valid so long as the plaintiff complies with the
procedures of subsection (b), which allows for reissuance of the
writ at “any time and any number of times.” Pa.R.C.P. 401(b).
Thus, the plain language of the rule allows a plaintiff to
commence an action, thereby satisfying the statute of
limitations, and yet to delay the provision of notice of the claim
to the defendant interminably, thus undermining the purpose of
the statute of limitations.
McCreesh v. City of Philadelphia, 888 A.2d 664, 671 (Pa. 2005) (some
citations and quotation marks omitted).
In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), our Supreme Court
first considered whether a plaintiff who tolls the statute of limitations by
commencing an action, but has the writ of summons repeatedly reissued and
deliberately fails to provide service to the defendant, is barred from
continuing the action. The Court concluded as follows.
[T]here is too much potential for abuse in a rule which permits a
plaintiff to keep an action alive without proper notice to a
defendant merely by filing a praecipe for a writ of summons and
then having the writ reissued in a timely fashion without
attempting to effectuate service. In addition, we find that such a
rule is inconsistent with the policy underlying statutes of
limitation of avoiding stale claims, and with that underlying our
court rules of making the processes of justice as speedy and
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efficient as possible. … Our purpose 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.
Accordingly, pursuant to our supervisory power over
Pennsylvania courts, we rule that henceforth, … 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 888-89 (footnotes omitted).
However, this ruling has been eroded by some of this Court’s own
jurisprudence.
In applying Lamp and its progeny, the Commonwealth and
Superior Courts have formulated inconsistent rules, sometimes
dismissing cases due to plaintiffs’ failure to comply strictly with
the Rules of Civil Procedure and on other occasions reserving the
drastic measure of dismissal for only those cases where the
defendant has been prejudiced by plaintiff’s failure to comply
with the rules.
Upon review of these cases, we conclude that the rigid
compliance requirement … line of cases is incompatible with the
plain language of Rule 401, the spirit of Lamp, and the
admonition of Rule 126 to construe liberally the rules of
procedure so long as the deviation does not affect the
substantial rights of the parties. In Lamp, we sought to alleviate
the hardships caused by plaintiffs who exploited the rules of civil
procedure to make an end run around the statutes of limitations.
Neither our cases nor our rules contemplate punishing a
plaintiff for technical missteps where he has satisfied the
purpose of the statute of limitations by supplying a defendant
with actual notice. Therefore, we embrace the logic of the … line
of cases, which, applying Lamp, would dismiss only those claims
where plaintiffs have demonstrated an intent to stall the judicial
machinery or where plaintiffs’ failure to comply with the Rules of
Civil Procedure has prejudiced defendant.
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In setting forth this rule, we are merely re-animating the
purpose of Lamp and reigning in the line of cases which have
strayed from it. As stated earlier, this Court in Lamp attempted
to prevent plaintiffs from abusing the liberal rules of civil
procedure which had been enacted originally to protect plaintiffs
from being thrown out of court despite commencing an action
within the applicable limitations period. The cases requiring strict
compliance hearken back to these draconian procedures and
replace a factual good faith inquiry with an objective bright line
standard of compliance that is wholly inconsistent with the
concept of good faith.
McCreesh, 888 A.2d at 673-74 (Pa. 2005) (footnote and some citations
omitted).
Instantly, the facts of this case do not support dismissal. Gussom filed
the instant complaint within two years of the accident, tolling the statute of
limitations. Teagle was no longer residing at the last known address and
thus service, though attempted, was not perfected. Gussom, believing she
had located Teagle in Virginia, filed a praecipe to reinstate the complaint on
August 22, 2018, more than two years after the accident, and again
attempted service. Service was returned to Gussom, but in the meantime
Teagle filed preliminary objections based upon, inter alia, Gussom’s failure to
effectuate service prior to the running of the statute of limitations. Believing
she had located Teagle in Philadelphia, Gussom filed a second praecipe to
reinstate the complaint on September 22, 2018. While Gussom waited four
months from when she first filed the complaint to file the first praecipe to
reinstate the complaint, at which time it was two years and one month after
the accident, there is no evidence that she did so with “an intent to stall the
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judicial machinery.” Id. Additionally, Teagle has not demonstrated
prejudice in this case.
Nonetheless, the Majority has hearkened back to the line of cases
which have gone in such a direction as to erode the holding and spirit of
Lamp by concluding that Gussom’s inaction evidenced an intent to stall the
judicial machinery because she failed to establish that she made a good faith
effort to effectuate service. See Majority at 7-8 (citing Englert v. Fazio
Mechanical Servs., Inc., 932 A.2d 122 (Pa. Super. 2007)). Instead of
dismissing only those claims “where plaintiffs have demonstrated an intent
to stall the judicial machinery or where plaintiffs’ failure to comply with
the Rules of Civil Procedure has prejudiced defendant[,]” McCreesh 888
A.2d at 674 (emphasis added), this line of cases instead permits dismissal
based upon “[s]imple neglect and mistake to fulfill the responsibility to see
that requirements for service are carried out[.]” Englert, 932 A.2d at 124,
quoting Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004). As such,
these cases conclude that “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.” Id. at 124-25, quoting Devine, 863 A.2d at
1168 (emphasis added). This is inconsistent with Lamp’s holding and spirit,
and has created a trap for the unwary attorney.
Based on the foregoing, I conclude that Gussom satisfied the statute
of limitations by timely filing her complaint, and did not act with an intent to
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stall the judicial machinery or prejudice Teagle. She attempted service three
times within two months of filing the complaint. Accordingly, I would
reverse because the trial court erred in granting Teagle’s preliminary
objections and dismissing Gussom’s complaint with prejudice.
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