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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J-A13027-19


             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

                                    -2-
J-A13027-19


     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.

                                     -3-
J-A13027-19


            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


                                     -4-
J-A13027-19

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


                                      -5-
J-A13027-19

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.




                                    -6-
