                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2002

Collins v. Univ PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3172




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Recommended Citation
"Collins v. Univ PA" (2002). 2002 Decisions. Paper 306.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/306


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                                                 NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                          No. 01-3172



                      PHILLIP A. COLLINS,

                                                Appellant

                                 v.

                   UNIVERSITY OF PENNSYLVANIA



    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
                EASTERN DISTRICT OF PENNSYLVANIA

                 (Dist. Court No. 01-cv-00993)
         District Court Judge: Honorable John R. Padova



           Submitted Under Third Circuit LAR 34.1(a)
                          May 10, 2002

        Before: ALITO, COWEN, and LOURIE, Circuit Judges

                 (Opinion Filed: May 22, 2002)



                      OPINION OF THE COURT




PER CURIAM:
          Because we write for the parties only, the background of the case need not
be set out. We reject the appellants’ argument that the District Court improperly granted
the appellee’s motion to dismiss.
          Appellants contest the District Court’s conclusion that the plaintiffs’ Title
VII claims are barred by the applicable statute of limitations. Under Title VII, "a
plaintiff has ninety days after receiving [a right-to-sue notice issued by the EEOC] in
which to file suit." Mosel v. Hills Dep’t Store, Inc., 789 F.2d 251, 253 (3d Cir. 1986);
42 U.S.C. 2000e-5(f)(1). This ninety-day filing requirement for Title VII claims "has
been treated by the courts as a statute of limitations rather than a jurisdictional
prerequisite to suit." Figueroa v. Buccaneer Hotel, Inc., 188 F.3d 172, 176 (3d Cir.
1999). Here, plaintiffs filed their Complaint more than 120 days after the EEOC issued
the right-to-sue notices.
          Appellants argue that the issuance of a Writ of Summons tolled the statute
of limitations. The Pennsylvania Rules of Civil Procedure provide that an action may be
commenced by filing a praecipe to issue a writ of summons. See Pa. R. Civ. P. 1007(1).
However, the filing of a praecipe for a writ of summons will toll the statute of limitations
only if the plaintiff makes a good faith attempt to serve the writ within thirty days of its
issuance. See Moses v. TNT Red Star Express, 725 A.2d 792, 796 (Pa. Super. 1999); Pa.
R. Civ. P. 401(a) (original process shall be served within 30 days of filing praecipe). A
good faith effort, at a minimum, requires compliance with the Pennsylvania Rules of
Civil Procedure. See id.
          In this case, the record demonstrates that plaintiffs failed to comply. The
Pennsylvania Rules of Civil Procedure require that original process be served on a
corporation by handing a copy of the service to "(1) an executive officer, partner or
trustee of the corporation or similar entity, or (2) the manager, clerk or other person for
the time being in charge of any regular place of business or activity of the corporation or
similar entity, or (3) an agent authorized by the corporation or similar entity in writing to
receive service of process for it." Pa. R. Civ. P. 424. We have held that "the ’person for
the time being in charge’ of any office or usual place of business of the defendant[] for
purposes of [the Pennsylvania Rules] must either be an individual with some direct
connection to the party to be served or one whom the process server determines to be
authorized, on the basis of [his or] her representation or authority, as evidenced by the
affidavit of service." Grand Entertainment Group, Ltd. v. Star Media Sales, Inc., 988
F.2d 476, 486 (3d Cir. 1993). Here, the server did not ascertain the capacity or
relationship to the University of the person on whom he allegedly served the Writ of
Summons on December 19, 2000. The District Court properly determined that service
on the unidentified person was insufficient under Pennsylvania law.
          Finally, the appellants argue that the District Court improperly dismissed
plaintiffs’ intentional and negligent emotional distress claims. The Pennsylvania
legislature has chosen to provide an exclusive remedy for all work-related injuries in the
Pennsylvania Worker’s Compensation Act ("WCA"). The WCA reads: "The liability of
an employer under this act shall be exclusive and in place of any and all other liability to
such employees...on account of any injury [to an employee arising in the course of his
employment and related thereto]." 77 Pa. Cons. Stat. Ann. 411(1), 481(a) (2001). In
Matczak v. Frankford Candy & Chocolate Co., 136 F.3d 933, 940 (3d Cir. 1997), this
Court held that the WCA provides the exclusive remedy for employees asserting
intentional and negligent infliction of emotional distress claims based on alleged
discriminatory treatment by employers. Here, because the conduct alleged by plaintiffs is
discriminatory treatment by the University in the course of plaintiffs’ employment, the
District Court correctly dismissed the claims as barred by the WCA.
          We have considered all of the defendant’s arguments and see no basis for
reversal. Therefore, we affirm the District Court’s dismissal.
