             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Hite,                               :
                      Appellant              :
                                             :
       v.                                    : No. 1101 C.D. 2018
                                             : SUBMITTED: March 14, 2019
Southeastern Pennsylvania                    :
Transportation Authority and                 :
Quinton Siplin                               :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge (P.)
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                                            FILED: April 5, 2019

       Lawrence Hite appeals from the April 16, 2018 Order of the Court of Common
Pleas of Philadelphia County (Trial Court) granting the Motion for Summary Judgment
filed by Southeastern Pennsylvania Transportation Authority and Quinton Siplin
(together, SEPTA).1 For the reasons that follow, we affirm the Trial Court’s Order.
                                           Background
       On December 12, 2015, Mr. Hite was allegedly injured while riding as a
passenger on a bus owned and operated by SEPTA, when the bus collided with another
vehicle. On July 10, 2017, Mr. Hite filed a Complaint against SEPTA, asserting claims
of negligence and seeking compensatory damages. Mr. Hite did not serve a copy of
the Complaint on SEPTA at that time.
       Six months later, on January 16, 2018, Mr. Hite filed in the Trial Court a Praecipe
to Reinstate Complaint. Mr. Hite served the Complaint on SEPTA on January 18,

       1
         Mr. Hite initially filed his appeal in the Pennsylvania Superior Court, which transferred the
matter to this Court for disposition.
2018. On February 20, 2018, SEPTA filed an Answer and New Matter, raising, inter
alia, the defense of statute of limitations.2
       On March 9, 2018, SEPTA filed a Motion for Summary Judgment, asserting that
Mr. Hite failed to timely serve the Complaint on SEPTA within 30 days of its filing.
SEPTA’s Summ. J. Mot., 3/9/18, ¶¶ 9-10. Thus, under the Pennsylvania Supreme
Court’s decision in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976),3 SEPTA asserted that
Mr. Hite’s suit was barred by the statute of limitations. Id., ¶ 13. In his Brief in
Opposition to the Summary Judgment Motion, Mr. Hite asserted that he made a good
faith effort to serve SEPTA in July 2017, but a “technical misstep” delayed service of
his Complaint. Mr. Hite’s Br. in Opp. to Summ. J. Mot., 4/5/18, at 7. Mr. Hite also
asserted that the Lamp rule is inapplicable because SEPTA had actual notice of Mr.
Hite’s claim before he filed the Complaint. Id.
       On April 17, 2018, the Trial Court granted SEPTA’s Motion for Summary
Judgment, concluding that Mr. Hite failed to meet his burden of proving that he made
a good-faith effort to effectuate service within 30 days of filing the Complaint. Trial
Ct. Order, 4/17/18, at 1 n.1. The Trial Court noted that Mr. Hite’s Response to the
Summary Judgment Motion contained nothing more than a “vague and ambiguous
statement of a ‘technical misstep’ and/or mere conclusory statements” regarding his
good-faith effort to effectuate service. Id.
       On April 19, 2018, Mr. Hite filed a Motion for Reconsideration. In his Motion,
Mr. Hite alleged, for the first time, that on July 17, 2017, the day he initially filed his

       2
          The statute of limitations on Mr. Hite’s negligence claims expired two years after the date
of his alleged injury, on December 12, 2017. See Section 5524 of the Judicial Code, 42 Pa. C.S. §
5524; Miller v. Stroud Twp., 804 A.2d 749, 752 n.5 (Pa. Cmwlth. 2002).

       3
          In Lamp, our Supreme Court held that a plaintiff must make a good-faith attempt to serve
original process on the defendant within 30 days in order to toll the statute of limitations. 366 A.2d
at 889.


                                                  2
Complaint, his counsel delivered the Complaint to Metro Filing Services, Inc. (Metro
Filing) to effectuate service. Mr. Hite’s Mot. for Reconsid., 4/19/18, ¶ 3. Mr. Hite
attached to his Motion two undated documents titled “Worksheet for Services” bearing
Metro Filing’s logo and address. Id., Ex. B. The parties’ names and a court term and
number are handwritten on each document, and a handwritten “x” appears in a box
labeled “Complaint.” Id. Mr. Hite asserted that these documents demonstrated his
good-faith attempt to timely effectuate service of the Complaint. Id., ¶ 21. Mr. Hite
further alleged that he did not learn that Metro Filing failed to serve SEPTA until
January 15, 2018, after which he immediately filed a Praecipe to Reinstate Complaint
and served the Complaint on SEPTA. Id., ¶¶ 6-9.
      On April 23, 2018, the Trial Court denied Mr. Hite’s Motion for
Reconsideration. In its subsequent Pa. R.A.P. 1925(a) Opinion, the Trial Court
concluded that the undated Metro Filing documents appended to Mr. Hite’s Motion for
Reconsideration were “wholly insufficient” to prove that Mr. Hite made a good-faith
effort to timely serve SEPTA within 30 days of filing his Complaint. Trial Ct. Op.,
6/28/18, at 3. The Trial Court found that, after filing his Complaint in July 2017, Mr.
Hite failed to follow up with Metro Filing to ensure that it had timely served the
Complaint before the statute of limitations expired. Id. at 3-4. The Trial Court
concluded as follows:

      [Mr. Hite] has the burden to ensure the timely effectuating of service,
      which includes following up with Metro [Filing]. This was not a technical
      misstep, but rather, [Mr. Hite’s] failure to act that resulted in the stalling
      of the legal machinery. Furthermore, [SEPTA] would suffer prejudice if
      the [T]rial [C]ourt were to permit an untimely claim to continue against
      [SEPTA].

            Thus, there was no good faith effort by [Mr. Hite] to have original
      process served immediately, such that it tolled the statute of limitations.


                                            3
       As a result, the statute of limitations had run two years after the car
       accident, or on December 12, 2017. [Mr. Hite] did not reinstate the
       Complaint until January 16, 2018, [one] month after the statute of
       limitations had run. . . .

Id. at 4.
       Finally, the Trial Court rejected Mr. Hite’s claim that his untimely service should
be excused because SEPTA had actual notice of his claim before the filing of his
Complaint. Id. The Trial Court determined that Mr. Hite “needed to provide service
of the original filed Complaint[,] not merely notify [SEPTA] of a potential claim. It is
beyond peradventure that notice of a potential claim is not the same as notice of an
actually filed lawsuit.” Id. Mr. Hite now appeals to this Court.
                                          Issue
       Did the Trial Court err or abuse its discretion in granting SEPTA’s Motion for
Summary Judgment on the ground that Mr. Hite failed to timely serve SEPTA with his
Complaint before the statute of limitations expired?
                                        Analysis
       Our review of the Trial Court’s grant “of summary judgment is limited to
determining whether the [T]rial [C]ourt committed an error of law or an abuse of
discretion.” Kaplan v. Se. Pa. Transp. Auth., 688 A.2d 736, 738 n.2 (Pa. Cmwlth.
1997). Summary judgment is appropriate only in those cases where the record clearly
demonstrates that there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. P.J.S. v. Pa. State Ethics Comm’n, 723 A.2d
174, 176 (Pa. 1999). This Court must view the record in the light most favorable to the
non-moving party, resolving all doubts about the existence of a genuine issue of
material fact against the moving party. Id.; see Guy M. Cooper, Inc. v. E. Penn Sch.
Dist., 903 A.2d 608, 613 (Pa. Cmwlth. 2006).



                                            4
      A plaintiff must file a negligence action for personal injury within two years of
the date of injury. Section 5524 of the Judicial Code, 42 Pa. C.S. § 5524; Miller, 804
A.2d at 752 n.5. A plaintiff may commence a personal injury action by filing either a
complaint or a writ of summons. Pa. R.C.P. No. 1007. The plaintiff must serve the
complaint or writ on the defendant within 30 days after filing the complaint or writ.
Pa. R.C.P. No. 401(a).
      Under long-standing Pennsylvania precedent, a plaintiff must make a good-faith
attempt to serve original process within 30 days in order to toll the statute of limitations.
See Lamp, 366 A.2d at 889. In Lamp, our Supreme Court held 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. The purpose of this rule “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.” Id.; see Farinacci v. Beaver Cty. Indus. Dev. Auth., 511 A.2d 757, 759
(Pa. 1986) (“Lamp requires of plaintiffs a good-faith effort to effectuate notice of
commencement of the action.”); Daniel v. City of Phila., 86 A.3d 955, 957 (Pa.
Cmwlth. 2014) (“[I]n order to toll the statute of limitations, the plaintiff must make a
good-faith effort to serve the complaint in a timely manner.”).
      First, Mr. Hite argues that he did not intend to stall the legal process by his
untimely service, but rather committed a mere “technical misstep.” We disagree. In
applying the Lamp rule, this Court has stated:

      [A] plaintiff need not intentionally resolve to delay notification of a
      defendant of the institution of a lawsuit in order for the courts to find a
      lack of good faith. Simple neglect or mistake is an example of failing to
      fulfill the responsibility of plaintiff or his counsel to see to it that the
      requirements for service are carried out.

                                             5
Nagy v. Upper Yoder Twp., 652 A.2d 428, 430 (Pa. Cmwlth. 1994) (citation and
internal quoations omitted) (emphasis added).
       Here, the record establishes that Mr. Hite did not serve the Complaint on SEPTA
within 30 days of its filing on July 10, 2017. In his Brief in Opposition to the Summary
Judgment Motion, Mr. Hite asserted only that there was a “technical misstep” with
regard to service. Mr. Hite’s Br. in Opp. to Summ. J. Mot., 4/5/18, at 7. Mr. Hite
offered no explanation as to what type of “misstep” occurred or how or when he
attempted to effectuate service of the Complaint on SEPTA.
       Furthermore, the undated Metro Filing documents appended to Mr. Hite’s
Motion for Reconsideration do not establish his good-faith attempt to effectuate
service. Significantly, Mr. Hite neither raised the Metro Filing argument nor produced
the Metro Filing documents until after the Trial Court issued its summary judgment
ruling. A party waives an argument in opposition to summary judgment if he or she
raises it for the first time in a motion for reconsideration after entry of the challenged
order. See Krentz v. Consol. Rail Corp., 910 A.2d 20, 37 (Pa. 2006) (finding the
plaintiffs’ argument waived where they failed to present it to the trial court in their brief
in opposition to the defendant’s summary judgment motion); Erie Ins. Exch. v.
Larrimore, 987 A.2d 732, 743 (Pa. Super. 2009) (recognizing that an appeal lies only
from the order granting summary judgment, not from the denial of reconsideration, and
“[s]ince the argument [on appeal] was not raised before the trial court in opposition to
summary judgment, it is waived and cannot be raised for the first time on appeal”).4
Therefore, we conclude that Mr. Hite waived his Metro Filing argument.



       4
        “In general, Superior Court decisions are not binding on this Court, but they offer persuasive
precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of Review, 180
A.3d 545, 550 (Pa. Cmwlth. 2018).


                                                  6
       In any event, even if Mr. Hite had delivered the Complaint to Metro Filing on
the day he filed it, as he now contends, the record contains no evidence establishing
that he made any attempt to follow up with Metro Filing to ensure that it had timely
effectuated service on SEPTA. Instead, Mr. Hite waited six months, after the statute
of limitations expired, to inquire with Metro Filing, and only then discovered that it
failed to serve the Complaint. We agree with the Trial Court that this oversight was
not a mere “technical misstep,” but evidence of Mr. Hite’s neglect. Cf. Farinacci, 511
A.2d at 759-60 (holding that while an eight- or nine-day delay in service due to
counsel’s misplacement of the file may demonstrate a good-faith effort to effectuate
service, a four-week delay attributable to counsel’s faulty memory was insufficient to
demonstrate good faith).5
       Next, Mr. Hite claims that the Trial Court erred in granting SEPTA’s Summary
Judgment Motion because there is no evidence that SEPTA was prejudiced by his
failure to timely serve the Complaint. Mr. Hite, however, misconstrues the law. In
McCreesh v. City of Philadelphia, our Supreme Court clarified the Lamp rule and held
that a trial court may dismiss a lawsuit for improper service only “where [the] plaintiffs
have demonstrated an intent to stall the judiciary machinery or where [the] plaintiffs’
failure to comply with the Rules of Civil Procedure has prejudiced the defendant.” 888
A.2d 664, 674 (Pa. 2005) (emphasis added). Because we have concluded that Mr. Hite
did not make a good-faith effort to timely serve SEPTA, the first prong is satisfied, and
SEPTA was not required to prove prejudice.

       5
         The fact that Mr. Hite reinstated his Complaint and served SEPTA in January 2018 also does
not excuse his failure to serve SEPTA in 2017, because the two-year limitations period had already
expired. See Witherspoon v. City of Phila., 768 A.2d 1079, 1084 (Pa. 1999) (plurality) (“Although
Pa.R.C.P. [No.] 401(b)(2) states that ‘[a] writ may be reissued or a complaint reinstated at any time
and any number of times’ . . . , this cannot be construed to permit the reissuance of a writ or
reinstatement of a complaint to ‘revive’ an action as to which the limitation[s] period has expired.”)
(second emphasis added).


                                                  7
      Finally, Mr. Hite claims that his lawsuit should not have been dismissed because
SEPTA had actual notice “as evidenced by multiple correspondence[s] acknowledging
the claim.” Mr. Hite’s Br. in Opp. to Summ. J. Mot., 4/5/18, at 7; see Mr. Hite’s Mot.
for Reconsid., 4/19/18, ¶ 20 & Ex. F. As the Trial Court correctly determined, however,
notice of a potential claim is distinct from notice of a filed lawsuit. Trial Ct. Op.,
6/28/18, at 4. In fact, we rejected a similar argument in Nagy:

      [I]n an effort to show that [the defendant] was nonetheless notified of the
      institution of the suit, [the plaintiff] points to the service of the timely
      notice of intention to commence an action against a governmental unit.
      However, we hold that this was not sufficient notice of the institution of a
      suit such that [the plaintiff’s] conduct may be equated with [a] good[-
      ]faith effort[] . . . .

             The notice of intention required by [Section 5522 of the Judicial
      Code,] 42 Pa.C.S. § 5522, simply notifies a municipality that an individual
      intends to file suit against the municipality. However, that notice does not
      institute a suit, and plaintiffs may change their mind once this notice of
      intention is served. Since [the defendant] was not served with a writ or a
      complaint within the limitations period, it had a reasonable expectation
      that once the limitation period expired, it would no longer be required to
      shoulder the burden of possible litigation.

652 A.2d at 431 (emphasis added).
      Therefore, we conclude that Mr. Hite’s correspondence with SEPTA about his
potential claim, prior to the filing of his Complaint, did not serve to notify SEPTA that
a lawsuit had been filed.
                                      Conclusion
      Because Mr. Hite did not make a good-faith effort to effectuate service of the
Complaint on SEPTA and did not serve SEPTA until after the statute of limitations had
expired, we conclude that the Trial Court neither erred nor abused its discretion in




                                           8
granting SEPTA’s Motion for Summary Judgment. Accordingly, we affirm the Trial
Court’s Order.



                                  __________________________________
                                  ELLEN CEISLER, Judge




                                      9
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lawrence Hite,                      :
                  Appellant         :
                                    :
      v.                            : No. 1101 C.D. 2018
                                    :
Southeastern Pennsylvania           :
Transportation Authority and        :
Quinton Siplin                      :


                                  ORDER


      AND NOW, this 5th day of April, 2019, the Order of the Court of Common
Pleas of Philadelphia County, entered April 16, 2018, is hereby AFFIRMED.




                                    _________________________________
                                    ELLEN CEISLER, Judge
