                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-21-2007

Crow v. Washington
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5364




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Recommended Citation
"Crow v. Washington" (2007). 2007 Decisions. Paper 900.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/900


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                                                    NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT

                           ___________

                           No. 05-5364
                           ___________


                      MARGARET CROW,

                             Appellant

                                v.

COUNTY OF WASHINGTON; WASHINGTON COUNTY CORRECTIONAL
   FACILITY; WARDEN JOSEPH PELZER; C.O. (F.N.U.) HAMPTON;
                  C.O. (F.N.U.) PLUCKETT

                           ___________


          On Appeal from the United States District Court
                for the Western District of Pennsylvania
                      (D.C. Civil No. 04-cv-01855)
         District Judge: The Honorable Terrence F. McVerry

                           ___________

             Submitted Under Third Circuit LAR 34.1(a)
                          May 16, 2007

       Before: FISHER, NYGAARD, and ROTH, Circuit Judges.




                      (Filed June 21, 2007 )

                           ___________
                                 OPINION OF THE COURT
                                      ___________


NYGAARD, Circuit Judge.

          The District Court dismissed Margaret Crow’s action against the Washington

County Corrections Facility and its staff because she failed to serve notice of the

commencement of her suit before the applicable statute of limitations expired. We will

affirm.

                                               I.

          Crow, while incarcerated at the Washington County Correctional Facility, fell and

injured her finger, because, she claims, the facility’s staff made her wear flip-flops that

were two sizes too large. She maintains she suffered a permanent injury to her finger

which limits her ability to engage in common household activities such as writing or

peeling potatoes.

          On May 5, 2003, exactly two years after her fall, Crow’s counsel filed a praecipe

for a writ of summons in the Washington County Court of Common Pleas. Her counsel

made no effort to serve notice upon the appellees until July 2, 2004, when he filed a

praecipe to reissue the writ of summons. The appellees filed a rule to file complaint on

August 19, 2004. Crow then filed a complaint and demand for jury trial, claiming

violations of her constitutional rights pursuant to 42 U.S.C. §1983, and negligence under

Pennsylvania law. The defendants removed the case to the District Court, and eventually



                                               2
moved to dismiss the action because of Crow’s failure to serve the first writ of summons.

Magistrate Judge Lisa Pupo Lenihan issued a report and recommendation that the District

Court grant the appellees’ motion. The District Court adopted her recommendation and

dismissed the action. Crow filed a timely appeal.

                                             II.

       Pennsylvania law requires that a plaintiff commence a tort action and serve the

defendant with notice within two years of the underlying event. The appellees never

received notice of the commencement of the litigation until July, 2004, over three years

after Crow sustained her injury. Crow’s counsel maintains that he initially chose not to

serve them with the first writ of summons because he was unable to locate Crow, and his

professional responsibilities required him to confer with her before pursuing the matter

further. His duty when he filed the first praecipe was to comply with the law and serve

notice to the appellees. Instead, he made no attempt at all to serve the original writ.

       Crow also contends that the District Court should have permitted her to perfect

service of process pursuant to 28 U.S.C. §1448. We disagree. Crow’s suit was time-

barred by Pennsylvania’s statute of limitations prior to removal. She cannot use §1448 to

resurrect it.




                                             III.



                                              3
         We conclude that Crow failed to make a good faith effort to serve notice in

compliance with the applicable statute of limitations. We will affirm the District Court’s

order.




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