J-S03014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAYMOND RONK AND MELISSA BENSON                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

JUDITH ISRAEL

                         Appellee                    No. 1099 WDA 2016


                     Appeal from the Order June 27, 2016
                In the Court of Common Pleas of Blair County
                    Civil Division at No(s): 2013 GN 2650


BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 17, 2017

      Appellants, Raymond Ronk and Melissa Benson, appeal from the order

entered on June 27, 2016, granting a motion for summary judgment filed by

Judith Israel (Israel). Upon careful consideration, we affirm.

      The trial court summarized the facts and procedural history of this

case as follows:

        This case involves a negligence action between former
        neighbors.      [Appellants] claim[ed] that on or about
        September 2, 2012, a fire originated at [Israel’s] home
        located at 303 Lexington Avenue, Altoona, Blair County,
        Pennsylvania and spread to their residence located at 301
        Lexington Avenue. The [c]omplaint aver[red] that [Israel]
        failed to remove accumulated debris and rubbish from
        under an air conditioning unit. [Appellants] claim[ed] that
        this underbrush caused the unit to malfunction and catch
        fire, allegedly spreading to [Israel’s] home and in turn to
        [Appellants’] home. Both homes were destroyed in the
        incident.

                            *         *          *

* Retired Senior Judge assigned to the Superior Court.
J-S03014-17



       [Appellants] commenced this action by filing a [p]raecipe
       for a [w]rit of [s]ummons on September 3, 2013. [The trial
       court] subsequently issued an [a]lternative [s]ervice [o]rder
       on April 16, 2014, directing [Appellants] to reinstate the
       [w]rit within fifteen days of the [o]rder and serve the [w]rit
       within thirty (30) days of reinstatement. [Appellants] filed
       a [p]raecipe to [r]einstate [w]rit of [s]ummons on May 1,
       2014.     [The trial court] issued another [a]lternative
       [s]ervice [o]rder on July 25, 2014, followed by an
       [a]mended [w]rit of [s]ummons on August 14, 2014, adding
       Melissa Benson as a [p]laintiff.       [Appellants’] attorney,
       Michael B. Cohen, then delivered the [w]rit to the Blair
       County Sheriff’s Department (“BCSD”) on August 14,
       directing the Sheriff to serve [] Israel at [her former
       residence located at] 303 Lexington Avenue, Altoona, PA
       16601. Deputy Markle of the BCSD then attempted to serve
       the [w]rit on September 2, 2014, only to find a vacant lot.

       [Appellants] subsequently reinstated the [w]rit again on
       October 6, 2014 and November 10, 2014. On November
       10, 2014, Attorney Cohen directed the BCSD to serve the
       [w]rit once more, this time upon Judith Kramer of 2217 10 th
       Street, Altoona, PA 16601.       On November 18, 2014,
       Attorney Cohen sent a facsimile to the BCSD, correcting
       [d]efendant’s name from “Kramer” to “Israel.” The BCSD
       subsequently made three unsuccessful attempts to serve
       the [w]rit at the 10th Street address on November 19, 20,
       and 21.

       On March 11, 2015, [the trial court] issued another
       [a]lternative [s]ervice [o]rder, directing [Appellants] to
       reinstate the [w]rit within fifteen (15) days and serve the
       reinstated [w]rit within thirty (30) days. Eight days later,
       Attorney Cohen filed a [p]roof of [s]ervice with [the trial
       court], certifying that [Israel] picked up the [w]rit from the
       BCSD office on November 24, 2014.             Attorney Cohen
       attached a [s]heriff’s [r]eturn [p]rocess [r]eceipt to his
       correspondence, which indicates that [Israel] picked up the
       [w]rit on November 24, 2014.

       Subsequently, [the trial court] issued a [w]rit [n]otice on
       July 20, 2015, directing [Appellants] to file their [c]omplaint
       within thirty (30) days. [Appellants] complied and filed

                                    -2-
J-S03014-17


         their [c]omplaint on August 17, 2015. Attorneys [Thomas]
         Birris and [Joseph] Lesinski entered their appearances on
         behalf of [Israel] on October 19, 2015. [The trial court]
         then issued a [d]efault [j]udgment [n]otice on October 27,
         2015, advising [all] parties that [the trial court] had not
         received an answer and [Appellants] had not filed a
         praecipe for default judgment. [Israel] subsequently filed
         her [a]nswer on November 30, 2015.

         [Israel] filed a [m]otion for [s]ummary [j]udgment and
         supplementing brief on March 10, 2016.       According to
         [Israel], [Appellants] failed to meet the statute of
         limitations for [a] negligence claim. [Appellants] filed a
         [b]rief in [o]pposition on April 8, 2016.

Trial Court Opinion, 6/27/2016, at 1-3.

       By order and accompanying opinion entered on June 27, 2016, the

trial court granted Israel’s motion for summary judgment.            This timely

appeal resulted.1

       On appeal, Appellants present the following issue for our review:

         I.     Did the trial court err in granting [Israel’s] motion for
                summary judgment on the grounds that the action
                was barred by the applicable two-year statute of
                limitations?

Appellant’s Brief at 7 (complete capitalization omitted).

       Appellants recognize that “[a]n action or proceeding to recover

damages for injury that is founded on negligent tortious conduct is subject

to a two-year statute of limitations.” Id. at 17, citing 42 Pa.C.S.A. § 5524.

____________________________________________


1
  Appellants filed a notice of appeal on July 27, 2016. On August 2, 2016,
the trial court filed a letter with the Prothonotary indicating that it had
received the notice of appeal and “stand[s] on the record.” Trial Court
Letter to Prothonotary, 8/2/2016, at 1.



                                           -3-
J-S03014-17



Appellants argue that once they filed a praecipe for a writ of summons to

commence the action and made a good faith effort to serve it, the statute of

limitations was tolled. Id. More specifically, Appellants argue:

        an amended writ of summons was issued on August 15,
        2014, eighteen (18) days before the running of the
        two-year statute of limitations period, and forwarded to the
        Sheriff for service on or about August 25, 2014. [T]his
        technically tolled the statute, extending the statute of
        limitations on their action for two years from the date of
        filing. The Sheriff attempted to serve the writ on [Israel] at
        her last known address, which turned out to be a vacant lot,
        and filed a return of no-service on or about September 5,
        2014. [Appellants] subsequently reissued the writ on or
        about October 6, 2014. [Appellants] learned of [Israel’s]
        current address on or about November 10, 2014, and
        reissued the writ on or about November 12, 2014. The
        Sheriff attempted to serve the writ at that address,
        unsuccessfully, on November 19, 20, and 21, 2014.
        Subsequently, on November 24, 2014, [Israel] came to the
        Sheriff’s office and picked up the writ, herself. Thus, over a
        mere three (3) month time period, [Appellants] attempted
        to serve the writ four (4) times.

Id. at 22-23.

      We have stated:

        our scope of review of a trial court's order granting or
        denying summary judgment is plenary, and our standard of
        review is clear: the trial court's order will be reversed only
        where it is established that the court committed an error of
        law or abused its discretion.

        Summary judgment is appropriate only when the record
        clearly shows that there is no genuine issue of material fact
        and that the moving party is entitled to judgment as a
        matter of law. The reviewing court must view the record in
        the light most favorable to the nonmoving party and resolve
        all doubts as to the existence of a genuine issue of material
        fact against the moving party. Only when the facts are so


                                    -4-
J-S03014-17


        clear that reasonable minds could not differ can a trial court
        properly enter summary judgment.

Morgan v. Petroleum Products Equipment Co., 92 A.3d 823, 827 (Pa.

Super. 2014) (internal citation and brackets omitted).

     The applicable statute of limitations for actions to recover damages for

negligence is two years. 42 Pa.C.S.A. § 5524(2). It is well-settled in this

Commonwealth that

        service of original process completes the progression of
        events by which an action is commenced. Once an action is
        commenced by writ of summons or complaint the statute of
        limitations is tolled only if the plaintiff then makes a good
        faith effort to effectuate service. What constitutes a “good
        faith” effort to serve legal process is a matter to be
        assessed on a case by case basis. Where noncompliance []
        is alleged, the court must determine in its sound discretion
        whether a good-faith effort to effectuate notice was made.

        In making such a determination, we have explained:

           It is not necessary that the plaintiff's conduct be
           such that it constitutes some bad faith act or overt
           attempt to delay[]. Simple neglect and mistake to
           fulfill the responsibility to see that requirements for
           service are carried out may be sufficient[]. Thus,
           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.

        Although there is no mechanical approach to be applied in
        determining what constitutes a good faith effort, it is the
        plaintiff's burden to demonstrate that his efforts were
        reasonable.

Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 124–125 (Pa.

Super. 2007) (internal citations, quotations, and original brackets omitted).

     We have reviewed the certified record, the parties’ briefs, the relevant


                                    -5-
J-S03014-17



law, and the trial court’s opinion entered on June 27, 2016. The trial court

largely relied on our decision in Englert to grant Israel’s motion for

summary judgment.      As noted by the trial court, in Englert, the plaintiffs

filed a writ of summons sixteen months after an automobile accident, the

sheriff failed to deliver it because the defendant had moved, and plaintiffs

filed a praecipe to reissue the writ of summons six days after the statute of

limitations expired.   The Englert Court affirmed the grant of summary

judgment to the defendant because the plaintiffs failed to fulfill their good

faith responsibility to see that service requirements were carried out.

      Here, the trial court concluded:

        Similar to Englert, in the case at bar [Appellants] made
        only one attempt at service before the statute of limitations
        period expired and served the writ on a vacant lot. Before
        this attempt at service, [Appellants] took no action to
        determine whether [] Israel still lived at this address.
        [Appellants] did not present [the trial court] with any
        information regarding searches for [] Israel’s new address.
        Much akin to the failure of the Englert plaintiffs,
        [Appellants] here failed to do any research before making a
        defective attempt at service. [Appellants] did not amend
        the writ of summons to include [] Israel’s new address at
        2217 10th Street until November 10, 2014, over two months
        after the limitations period ran. Based upon those entries
        in the record, the [trial court found] that [Appellants] made
        insufficient attempts to serve the writ of summons within
        the limitations period and failed to follow up their single
        attempt at service with prompt research regarding a good
        address for [Israel].      In combination with [Appellants’]
        continual reissuances of the writ of summons and failure to
        comply with the [trial court’s] multiple [a]lternative
        [s]ervice [o]rders, [the trial court was] constrained to find
        that [Appellants] displayed an intent to stall the judicial
        machinery and, as such, [Appellants’] filing of the writ of
        summons did not toll the statute of limitations.

                                     -6-
J-S03014-17



Trial Court Opinion, 6/27/2016, at 9 (emphasis in original).

      The trial court opinion then distinguished and rejected the cases relied

upon by Appellants, specifically, McCreesh v. City of Philadelphia, 888

A.2d 664 (Pa. 2005), Shackelford v. Chester City Hospital, 690 A.2d 732

(Pa. Super. 1997), and Ramsay v. Pierre, 822 A.2d 85 (Pa. Super. 2003).

In McCreesh, the City of Philadelphia received actual notice of an action

against it before the statute of limitations expired, even though service

through certified mail was not the proper method.      In Shackelford, five

attempts at service (to the correct address) were made within two weeks of

the issuance of the original writ; whereas, here Appellants waited until one

year after the issuance of the original writ and sent service to a vacant lot.

In Ramsay, the defendant was elusive, but plaintiff researched defendant’s

whereabouts, found two subsequent potential addresses, and moved for

alternative service.

      We conclude that there has been no error or abuse of discretion in this

case and that the June 27, 2016 opinion meticulously, thoroughly, and

accurately disposes of Appellants’ issue on appeal. Therefore, we affirm on

the basis of the trial court’s opinion and adopt it as our own. Because we

have adopted the trial court’s opinion, we direct the parties to include the

trial court’s opinion in all future filings relating to our examination of the

merits of this appeal, as expressed herein.

      Order affirmed.

      Judge Solano joins this memorandum.

                                    -7-
J-S03014-17



     Judge Strassburger files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2017




                                 -8-
                                                                              Circulated 02/10/2017 01:31 PM

                                                                    ·-
     IN THE COURTOF COMMON PLEAS OF BLAIR COUNTY~ PENNSYLVANIA

RAYMOND RONKand IvfELlSSA
BENSON,                                          2013 GN 26,50
              PLAINTIFFS
                                                                                                                       .....
v,                                                                                                                 .   ·......
                                                                                          .   .,··j
                                                                                     ',   ~   :. .
;JU.PITH ISRAE.L,
                      DEFENDANT                                                                         .... ,•\                       :-··'·

                                                                                                            ·:)                  .        -:·--.".

HON. TIMOTHY M. SULI.JVAN                               PRESJDING JUDGE                                                      .,<
                                                                                                                                 ,..        ::.-:

MICHAELS, COHEN1 f~SQUIRE                               COUNSEL FOR PLAiNTlFPS

"fHOMAS P. BIRRIS, ESQUIRE
JOSEPH V. LESINSKI, ESQUlRE                             COUNSEL FOR DEFENDANT


                                  OPINION ,md ORDER


       Now before the Court is Defendant Judith Israel's Motion for Summary

Judgment, For the reasons stated herein, we hereby grant the motionand enter summary

judgment in favor of Defendant.

FACTlfAL HISTORY:

       This case involves   a   negligence claim between former neighbors.            Plaintiffs

Raymond Ronk and Melissa Benson claim that on or about September 2, 2012, a fire

originated at Defendant's home locatedat 3'03 Lexington Avenue, Altoona, Blair County.

Pennsylvania and spread to their residence located at 301 Lexington Avenue.                           The

Complaint avers that Defendant failed to remove accumulated. debris and rubbish from

under a11 air conditioning unit. Plaintiff claims that this underbrush caused the unit to

malfunction and catch fire, allegedly spreading to Defendant's           home .and in tum to

Plaintiffs· home. Both homes    were destroyed in the   incident.




                                             l
                        ..._..
                        .




PROCEDURAL HiSTORY:

          Plaintiffs commenced this action by filinga Praecipe for a Writof Summons on

September 3, 2013. This Court subsequently ·issued an Alternative Service Order on

April l6, 2014, directing Plaintiffs. to. reinstate the Writ within. fifteen (15) days of the

Order and serve the Writ within thirty (30) .days of reinstatement           Plaintiffs filed a

Praecipe to Reinstate Writ of SU111mons on May I, 2U14. This Court issued. another

Alternative Service Order 911 July 16. 2014, directing Plaintiffs to take action in the same

manner as prescribed in the prior Order of Court. Plaintiffs filed another Praecipe to

Reinstate Writ of Summons on July 25, 2014, followed by an Amended Writ of

Summons on August 14. 2014, adding Melissa Benson as a Plaintiff. Plaintiffs' attorney,
Michael B. 'Cohen, then delivered the Writ to the Blair County Sheriffs           Department

("BCSDi} on August 14~ directing the Sheriff to serve Defendant Judith Israel at 303

Lexington Avenue, Altoona, PA 16601. Deputy Mearkleofthe BCSD thenattemptedto

serve the Writ on September 2, 2014, only to find a.vacant lot.

          Plaintiffs subsequently   reinstated the Writ again     'Oh   October 6; 2014 and

November rn, 2014. On November 10; 2014, Attorney Cohen directed the HCSD to

serve the Writ once more, this time upon Judith Kramer of2217 10i11 Street Altoona, PA

16601. On November 18, 2014. Attorney Cohen sent a facsimile to the BCSD, correcting

Defendant's last name from "Kramer" to "Israel:'      The BCSD subsequently made three

unsuccessful attempts to. serve the Writ at the 10111 Street address on November 19.~ 40.,

and 21.




                                              2
        On March 11, 2015, this Court issued another Alternative Service Order, directing

Plaintiffs to reinstate the Writ within fifteen {15) days and' .serve the reinstared Writ

within thirty (30) days. Eightdays later; Attorney Cohen fifed a. Proofof Service with the

Court, certifying that Defendant picked.up the Writ from the BCSD office on November

24. 2014.     Attorney Cohen attached a Sheriffs. Return Process Receipt to his

correspondence,   which indicates that Defendant picked up the. Writ on November 24,

2014.
        Subsequently.    this Court issued a. Writ Notice on July 20, 2015.,        directing
Plaintiffs to file their Complaint within thirty (JO) days.   Plaintiffs complied and filed

their Complaint   on August 17, 2015.         Attorneys Birris and Lesinski entered their

appearances on behalf of Defendant on October 19, 2015. This Court then issued a

Default Judgment Noticeon October 27, 2015,. advising both parties that this Court had

not received an answer and Plaintiffs had not filed a praecipe for default judgment.

Defendant .subsequenrly filed her Answer on November 30. 2015.

        Defendant filed a Motion for Summary Judgment and supplementing              brief on

March   10, 20 l 6,     According   to Defendant, Plaintiff failed   to   meet the statute of

limitations for his negligence claim.     Plaintiff filed a Brief in Opposition on April 8 .

.2016. The .matteris now ripe before the Court and we proceed to disposition.




                                               ".)
APPLICABLE LAW:

       The filing of a MoticnforSummaryJudgmentis governed by Pa. R.CJ>. 1035.2:
               After the. relevant pleadings are closed, but within such
               time as not to. unreasonably delay trial, any party may move
               for summary judgment .in whole or in part     as   a matter of
               law:

               (J) whenever there is no genuine issue of any material fact
                   as to a necessary .element of the ..cause of action or
                   defense which could be. established by additional
                   discovery or expert report, or

               (2} it: after the completion of discovery relevant to the
                  · motion, including the production .of expert reports, an
                    adverse party who will bear the burden of proof at trial
                    has failed to produce evidence of facts. essential to the
                    cause of action or defense which, .in a jury trial, would
                    require the issue to be submitted to ajury.


       The party who brings the motion has the burden of proving that no genuine issue

of fact exists, All doubts as to the existence of a genuine issue of material fact are to be

resolved against the granting. of summary judgment.         Penn Center House Inc. · v.

Hoffman, 553 .A2d 900, 903 (Pa. 1989). The ultimate inquiry 'in deciding a Motion for

Summary Judgment is whether the admissible evidence in the record, when considered in

the light most favorable · to the non..moving party, fails to establish a prima fade   case.
Liles v. Balmer, 567 A.2d 69 t, 692 (Pa. Super, 1989). In deciding. whether a prima fade

case is established, the Court mustresolve all doubts against the moving party. Hayward
v. Medical Center of BeaverCnty., 608 A.2d l 040, 1042 (Pa.1992).




                                             4
        An entry of summar.:y judgment may be granted only in cases where the right is

clear and free ofdoubt.
                    .   Musser
                          . .        Vi   VismeierAuction
                                                    .     Compaiiylnt;.,
                                                           .         .   562 A.2d 279,. 2.80
                                                                                         .


(Pa. 1989}; The non-moving       party must     demonstrate that there is   a genuine   issue for trial

and may not rest on averments             in its· pleadings.   Davis y. Resources for .H11ma11

Development, Inc.; 770 A.2d 353, 357 (Pa, Super. 2001). It is the Court's function in a

summary judgment to determine only if there is a genuine issue of material fact-: not to

determine· the facts. Waslting/011 Federal Savillgs am/ Loan v. Stein, 515 A.2d 980198 i

(Pa. Super. 1986);

DISCUSSION:

        As a   preliminary matter, the Court finds. that the non-tolled statuteof limitations

expired September 2, 2014. Plaintiff's claim sounds in. negligence and the appropriate

statute of limitations   is two years. 42 Pa.    C.S.A. § 5524(2).

        Based upon the record.of writs, reissuances, and attempts at service, Defendant

argues that Plaintiffs failed to comply with the appropriate statute of limitations and the

instant action should be dismissed.         Defendant argues that Plaintiffs failure to attempt

service. and their one fruitless. attempt at· service before the running of the. statute is not

effective to toll the statute of limitations.     According to Defendant, the     first writ did   110t

issue until September 3) 2013 and the first and only attempt at service before the run of

the limitation period occurred in September 2014. .Defendant states that this. detective

attempt at service does not toll the statute as Plaintiffs attempted to serve Defendantat             a
vacant lot. While Plaintiffs may have served. Defendant in .November 201( Defendant

argues that none of Plaintiffs actions· tolled the statute and cites various case in law

support of his position. Defendant believes that these failures both indicate-an intent to




                                                   5
                         ..........                                      ·,.....__.




stall the judicial machinery Plaintiff put into process and prejudiced Defendant's ability

to de fond the claims.

        Plaintiffs   respond          that their actions were. sufficient to toll the statute of

Iimitations.   While. Plaintiffs ,do not deny the 'timeline put forth in the factual history,

supra, they argue that their efforts. should be measured from reissuances of the writ rather

than. the original writ. In that context, Plaintiffs believe that their effort in delivering the

writ to the BCSD .in August 2014 and their attempts thereafter in Noveinber2014                        were
sufficient to toll the statute of limitations.         Plaintiffs cite a large amount of case law in

support of their position.

        Under Pennsylvania law, the filing of a writ of summons may be effective to toll

the statute of limitations.           Lamp v. Heyina11, 366 A.2d 882, 888 (Pa. 1976). The Lamp

rule does not allow plaintiffs "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/ Id, Rather, "a writ of summons

rernain]s] effective to commence an action only if-the plaintiff then refrainsfrom a course

of conduct which serves to stall in its tracks: the. legal machinery he has just set in

motion." Id. at 889. In order to toll the limitations period, the plaintiff must demonstrate

"a good faith effort to. effectuate notice of commencement ofthe action." Farinacci v.

Beaver Cty. Indus; Dev. A11tli•. 5.11 A.2d 757, 759(Pa, 1986).

        After Farinacci,              the   Superior   and Commonwealth               Courts   struggled   to

consistently apply the. Lamp rule-some panels would require strict compliance with the

Rules of Civil Procedure . .related to service of process and local practice inorder to meet
         ..
good faith, while. others were. more flexible, excusing plaintiffs' initial procedurally

                                                       6
                            '-·                                            ..........
defective service.     so   long   as the   defendant had actual notice ofthe commencement                  of

litigation and was not otherwise prejudiced. McCreesl, v. City of Philadelphi«, 888 A2d

664, 666 (Pa. 2005). Thus, out Supreme Court clarified these issues in McCreesh by

adopting tile latter view, finding that rigid compliance with the Rules of Civil Procedure

does nor comport with Lamp nor the command of Pa. R.C.P. 126 to "construe liberally

the rules of procedure so longas the deviation does not affect the substantial rights ofthe

parties.    Id. at 674.     Thus, the Lamp rule works to "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:"                              Id:

However, this ruling is tempered with the caveat that the McCree:'ilz court intended to.

"merely reanirnat] e] the purpose of Lamp. '' Id.

           In the. case at bat, Plaintiffs and Defendant both cite to a number of cases dealing

with delay in service of a writ of summons.              We find particularly instructive a Superior

Court decision from 2007 which clarifies. the scope of+good faith":

                   It is not necessary [that] the plaintiffs conductbe such that
                  it constitutes some bad faith· act or oven attempt to delay
                  before the rule of lamp will apply. Simple neglect and
                  mistake. to. fulfill the responsibility to sec that requirements
                  for service are carried may be sufficient to bring the rule in
                  Lamp to bear. Thus, conduct that is unintentional that
                  works to delay defendant's. notice of the action may
                  constitute a lack of go.od faith on the part of the plaintiff:

                                      Engler: ,-'.. Fazio Mecluii,iccil · Servs., I11c~;
                                      932 A.2d 122, 114-25 (citation omitted)
                                      (quoting Rosenberg v. Nicholson, 597 A.2d
                                      145; l48(Pa. Super, 1991')).

Englert, as cited by. Defendant, is instructive.              There, the plaintiffs. filed a writ of

summons sixteen months after an automobile accident and delivered the writ to the

sheriff for service,        Englert, 932 A2d at 123. Unfortunately, the defendants moved

addresses     nearly   six months prior to the issuance of the writ.                    Id. The sheriff filed a


                                                     7
                         _.
                       ~..
return of.service one month after the service attempt, indicating that the de fondants were

not. found because theiraddress     changed and listing the defendants' hew address.         Id.

Plaintiffs' counsel '·did not check the docket or contact the. Sheriff's office to.determine

whether service of the original writ of.summons had been made," instead waiting for the

Sheriffs return bymail. Id. Plaintiffs' attorney. never received this return however, as be

moved offices and.experienced      failed mail deliveries as a result. Id. at 123A24. Five

months later; the plaintiffs received a. letter from defendants' liability carrier, stating that

the statute of limitations. would tun in two weeks.       Id. ar 124. Thereafter, plaintiffs"

counsel received a ·.c~)py of the Sheriff's return via mail arid filed a praecipe to reissue the

writ of summons six days after the. limitations period. Id.

        The Englert affirmed the trial court's grant of summary judgment iri: favor. of

defendants.   Id. at 128: The Court noted that plaintiffs provided an old address for

defendants
     .     and when notified of the. same,. "failed
                                                .   to
                                                    .  make an inquiry
                                                                   . . as to. whether

service. of this writ had been effectuated."     Id. The Englert court also noted that the

defendants' insurance carrier provided. plaintiffs notice two weeks in advance· of the

expiration of the limitations period. Id . The Court continued:

               We discern. no abuse of discretion under the circumstances
               presented here, where [plaintiffs] took no action
               whatsoever once the writ was issued to ascertain whether
               service Was properly made and reffed instead on counsel's
               customary practice 'Of waiting for word from the. Sheriffs
               office, 110 matterhow long that mighttake and in spite of
               the difficulties he had experience receiving his mail in a
               timely matter. [Plaintiffs'] conduct .clearly amounted to
               "neglect . . . to fulfill the responsibility to see that
               requirements for service [were] carried out." [Devine v.
               H11tt~ 863 A.2d 1160, 1168 (Pa. Super, 2004) (citation
               omitted).]       In other words, [Plaintiffs']          inaction
               demonstrated an intent to. stall the judicial machinery which
               was put into motion by the filing of the initial. Vvrif and
               simply cannot b~. excused, M.cCreesli., 888 A.2d at 674.
               Plaintiffs' contention thatt'[tjhe filing of a praecipe .for writ
               of summons and the delivery of the writ one time is all that
                        ·..~···                                        ."-.-:
                the raw requires," ... is, quite simply, contrary       to the case
                law in this Commonwealth.

                                        Id.   at 126-27.
        Finally, the Englert court· commented             that the· plaintiffs   failed .to provide,

defendants with actual notice of the suit before the expiration of the limitations, providing

only notice of the potential for litigation. Id. at 127.

        The Court finds Engler; nearly dispositive upon this Motion. Similar to Englert,

in the case at bar Plaintiffs made only one attempt at service before the. limitations period

expired and served the writ on a vacant lot. Before this attempt at.service, Plaintiffs took

no action to determine whether Ms. Israel still lived at .. that address,         Plaintiffs did not

present this Court with arty information regarding searches for Ms .. Israel's new address.

Much akin to the failure of the Englert plaintiffs, Plaintiffs here failed to do any research

before making a defective attempt at      service.   Plaintiffs also did. not amend the writ of

summons to include Ms .. Israel's new address        al    2217 10th Street until November 10..

2014~ over two months after the limitations period ran, Based upon those entries in the

record, the Court finds. that Plaintiffs made insufficient attempts to serve the . writ of

summons within the limitations period and failed to follow up their single attempt at

service with prompt research regarding a good address for Defendant. In combination

with Plaintiffs' continual reissuances of the writ of summons and fail tire .fo comply with

the Court's multiple Alternative Service Orders, we are constrained to find that Plaintiffs

displayed an   intent to stall the judicial machinery and, as such, Plaintiffs' filing of the
writ of summons did not toll the .statute of limitations.

        Plaintiff in response to their compromised position, argue that McCtees/r and two

Superior Court decisions compel the tolling ofthe limitations period. This Court finds

these cases inapposite to the factual scenario at bar.
                          ~··                                           '"-s

        Ii1 McCrees/1, the plaintiff suffered injuries on August 14; 2000 and filed· a

praecipe to issue a writ of summons against the City of Philadelphia on August l2, 20Q2~

two days before the limitations period expired. McCrees//. v. City of Pliiladelpltia, 888

A.2d 664, 666 (Pa. 2005). The McCreesh plaintiffthen               attempted to serve the City by

certified mail, which.a receptionist at the. City Law Department signed for on August              13,
2002. Id. Three months later; after filing his complaint, Plaintiff requested a reissuance

of the writ and served it effectively by hand delivery pursuant to Pa. R,C.P. 400. I. ld. at

6(>7. In addition to its holdings, detailed supra, the Supreme Court ruled that the plaintiff

tolled the limitations period by giving the Law Department actual notice before the run of·

the limitations period.

        it is clear to the Court that the factual scenario in .McCn:eslt does not.apply. In

JJrfcCreesli the. plaintiff at least managed to provide· the City some indication of notice

before the run of the limitations period. Here, Plaintiffs made. one ineffective attempt at

service before the run of the limitations·period, serving a vacant lot. .McCi'ees/J in fact

reinforces Defendant's          contention that the limitations period should riot be tolled here

based upon.a lack ofservice and failure to carry the action forward.

        Plaintiffs also cite Sluu!ke/ford v; Chester Cty.. Hosp., 1            a   I 997 Superior Court

decision. There, the plaintiffcommenced an action against a medical professional on

October 25. 1985; approximately               five days before the limitations         period expired.

Sl,acke(f()n/, 690 A.2d         at 733.   Thereafter, the Sheriff attempted to serve the. de fondant

unsuccessfully    on five   occasions, all within two weeks. ld. The Shackelford court held

that the plaintifftolled the limitations period through her five attempts to serve the writ

during the thirty-day period prescribed by Pa. RC.P. 401. Id. at 736. Plaintiffs in the

case at bar argues that SJ,ackelford supports their position, as Plaintiffs believe that the


l .       .   .             .
 · 690 A.'.2d 732 (Pa. Super. 1997).
                                                     IO
                               ;..__....                                           '~ ..
    amended writ filed on August 15. 2014 serves as the start point and thefour attempts to.

    serve the writ between August 2014 and November 20'14 serve-to toll the statute.

                We disagree. Iri the case at bar, the. original writ upon which PlaintiffRonk filed

    his suit issued. on September 3, 2013. We find.               no proposition      that. allows   the Court   to

    begin counting from the. point of an amended writ where a plaintitfadds an additional

    plaintiff     The Court cannot give credence to this argument because it would, in effect,

    tum the elective amending of a writ into an               event upon   which Plaintiffs could "reset the

    clock." We also note thatthe period pf time in Shackelford was attenuated to a period of

    two weeks between the issuance of the odginal writ and the five attempts at service-s-in

    the. case at. bar; the first attempt at service occurred. nearly one year after issuance of the

    original writ, This Court cannot allow Plaintiffs to use the constant re issuance .of writs

    to, in effect, create their own limitations period.               The law of this Commonwealth               is.

    clear-if a plaintiff wishes to have their writ toll the statute of limitations, they must

    make a good faith effort to serve the same.

              Plaintiffs finally cite Rilmsny v~ Piefre/ a 2003 Superior Court decision involving

    issues with service and addresses.'              In Ramsay. the plaintiff filed a praecipe for a writ of

    summons on January 4,              2.000,   three days before the expiration of the limitations period.

    Bamsay,       822 .A.2.d at 87. Plaintiff then attempted to serve defendant with no success,

    resulting in dismissal of the action on February 15, 2000.                 Id. at 88. On February 24,

    2000~ the. United States Postmaster informed the plaintiff that defendant resided· at a new

    location. Id. Plaintiff caused the matter to be re-listed for trial and had a Constable

    attempt to serve the defendantat the new address to no avail. Id. The plaintiff'jhen made


    2
·       822 A.2d 85 (Pa. Super. 2003}.
    3Pl~intiffs    also cite Rowe v~ Cairn Holdings, 1886 EDA2(H4 (Pa. Super. Mar: 9, 2015).
        Based upon its non-precedential disposition, we forego analysis offhis decision,
        regardless of whether Plaintiffs cite it "merely as persuasive authority due to its factual
        similarity to the instant case."                                        .
                                                    11
                           '--
inquiry to the Postmaster again, determining that the defendant sfill received mail at the

latter address; Id. Plaintiff subsequently filed for 'alternative service on September 26,

2000 and caused alternate service on the defendant by certified mail on Oetober.J, 200,

confirmed by return receipt of November 11, 2000. Id.

        There the. Superior Court found that the limitations period was tolled based on the

plaintiff's good faith atteinpts in effectuating service:

                In light of the action's procedural history. the focus of our
                review is the ni ne-month period between the date A ppellee
                filed the complaint and. the date he eventually effected
                service.    Appellee's      overall conduct unequivocally
                establishes his good-faith attempt to effect service.
                [Plaintiff! did not attempt to prevent, service, thwart the
                progress of the lawsuit. or stall the legal machinery.
                 Instead. LPl~1intifl] attempted io achieve. service repeatedly
                throughout the nine-month period. In addition, lie did not.
                sit idly or disregard his duty to. ascertain [ defendant's]
                whereabouts after the complaint wtts returned without
                service. Indeed. [defendant] was unable to effectuate
                service on the elusive [defendant] despite the postmaster
                twice indicating      the correct address. In lig\11 (YI. these
                 facts, we cannot find the nine-month            period to be
                unreasonable.

                                                                          Id.    at
                91.-92..

        We do not find Jlamsay to be sim ilar to the factual scenario at· bar. The. Ramsay

plaintiff made full efforts to serve the original writ going forward) including research and

motions for alternative service-in     the   case   at bar we see a nearly full year delay before

Plaintiffs .even delivered. the writ to the BCSD for .service. Plaintiffs made no effort to

research Ms: Israel's current location beforethe .: run.ofthe limitations period, only doing

so after a completely defective attempt at service. Furthermore, Plaintiffs did not petition

the court for alternative service during that time) despite two Alternative Service Orders.

by this Court. To ignore the delay and· period of constantreissuances of the writ in the

good faith 'calculus would be the same as to              ignore the   limitations    period itself.


                                                12.
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Therefore, the Court grants Defendant's Motion for Summary Judgment and dismisses all

of Plaintiffs' claims ..

        In light of the foregoing, we now enterthc following:



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