          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Crystal Collins,                     :
                                     :
                         Appellant   :
                                     :
             v.                      : No. 259 C.D. 2019
                                     : Argued: November 14, 2019
City of Philadelphia                 :


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                         FILED: July 9, 2020


             Crystal Collins (Appellant) appeals from the November 6, 2018 order
of the Court of Common Pleas of Philadelphia County (trial court) granting the
motion for summary judgment filed by the City of Philadelphia (City). We affirm.
              On October 17, 2015, Appellant sustained injuries when she slipped
and fell in Love Park, a park located in the City. On November 9, 2015, Appellant
mailed a notice of her intention to commence an action against the City under
Section 5522 of the Judicial Code, 42 Pa. C.S. §5522 (Section 5522 Notice). On
May 5, 2016, the City acknowledged receiving the Section 5522 Notice, assigned a
claim number, and requested additional information from Appellant regarding her
fall. On December 28, 2016, Appellant provided additional information to the
City.
              Appellant filed a civil complaint against the City on October 10,
2017, a few days before the two-year statute of limitations expired. Section 5524
of the Judicial Code, 42 Pa. C.S. §5524. However, Appellant did not attempt to
serve the complaint within 30 days as required by Pennsylvania Rule of Civil
Procedure (Pa. R.C.P.) No. 401(a). Approximately nine months later, on July 5,
2018, Appellant filed a petition to reinstate the complaint.            Pa. R.C.P. No.
401(b)(1), (2). On July 6, 2018, Appellant served the reinstated complaint on the
City.
               In the trial court, complaints alleging damages of less than
$50,000.00 are scheduled for hearings before an attorney arbitration panel.
Philadelphia Civil Rule No. 1301.         On July 13, 2018, at the City’s request,
arbitration was continued and rescheduled for September 17, 2018. On July 30,
2018, the City filed an answer to the complaint and new matter, asserting as a
defense the statute of limitations.      The City subsequently filed a motion for
summary judgment, which the trial court dismissed as untimely because the
pleadings were not closed. The matter proceeded to arbitration on September 17,
2018, at which time Appellant agreed to the City’s request for a continuance.
             On September 26, 2018, the City filed a second motion for summary
judgment, arguing that the complaint was not timely filed under the rule set forth in
Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) (Lamp rule). The trial court agreed and
concluded that Appellant’s action was barred by the applicable statute of
limitations. The trial court granted the City’s motion by order dated November 6,
2018. Appellant filed an appeal with Superior Court, which transferred the matter
to this Court by order of March 8, 2019. Section 762(a)(1)(i), (7) of the Judicial
Code, 42 Pa. C.S. §762(a)(1)(i), (7).
             On appeal, Appellant argues that: (1) she filed her complaint within
the statute of limitations; (2) the trial court failed to consider that the City suffered


                                           2
no prejudice as the result of the delay in service; and (3) the City waived any
objection to defective service by failing to file preliminary objections.
                Preliminarily, our Supreme Court has observed:

              [The] 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[1] within certain time-frames depending on
              the nature of the underlying claims. . . .
              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, this Court has set
              forth rules governing service of original process to ensure
              such notice. . . .
              [Pa. R.C.P. No.] 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. 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. 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) (citations and
quotations omitted and emphasis added); see Lamp, 366 A.2d at 888-89.
                In Lamp, the Supreme Court addressed the potential for abuse
inherent in Pa. R.C.P. No. 401. The plaintiff in Lamp allegedly was injured on

       1
          A matter is “commenced” by filing with the prothonotary a complaint or a praecipe for
a writ of summons. Pa. R.C.P. No. 1007.


                                              3
September 1, 1967. Her attorney filed a praecipe for a writ of summons on August
28, 1969, within the two-year statute of limitations.                   However, the attorney
instructed the prothonotary to hold the writ; consequently, it was not delivered to
the sheriff’s office and it was not served. On April 9, 1970, the plaintiff filed a
praecipe for the reissuance of the writ and a complaint endorsed with a notice to
plead. Again, service was not effectuated, but the record did not indicate the
reason. On June 4, 1970, the plaintiff filed another praecipe for reissuance of the
complaint and it was served on June 19, 1970. Thereafter, the defendants filed
preliminary objections, asserting that the original summons was a nullity because
of the plaintiff’s “issue and hold” instructions to the prothonotary, and that the
action therefore was not brought within the two-year statute of limitations.
                 The defendants also filed a complaint against additional defendants,
who filed an answer and new matter raising the statute of limitations as a defense.
The plaintiff replied to the new matter and admitted giving the “issue and hold”
instructions.     The trial court heard oral argument, sustained the preliminary
objections, and entered judgment for the defendants. The Superior Court affirmed.
On further appeal however, the Supreme Court reversed. The Court noted that the
plaintiff filed the praecipe and validly commenced the action on August 28, 1969.
The Court held that the trial court’s ruling was not supported by Pa. R.C.P. No.
10072 or case law and reversed.

      2
          The Court observed:

                Pa. R.C.P. [No.] 1007 in pertinent part provides: “An action may
                be commenced by filing with the prothonotary (1) a praecipe for a
                writ of summons. . . .” This Court has repeatedly held that,
                pursuant to this rule, the mere filing of a praecipe to commence an
                action is sufficient to toll the running of the statute of limitations
(Footnote continued on next page…)
                                                  4
               Nevertheless, the Supreme Court concluded that, as written and
construed, the rule allowed too much potential for abuse. The Court explained that
the rule “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.” Lamp,
366 A.2d at 888 (emphasis added). Consequently, the Supreme Court in Lamp
qualified the rule, intending “to avoid a situation where the plaintiff commences an
action but, by failing to make a good-faith effort to notify the defendant, retains
exclusive control over it for a period in excess of that permitted by the statute of
limitations.” 366 A.2d at 889 (emphasis added).

             Accordingly, pursuant to our supervisory power over
             Pennsylvania courts, we rule that henceforth, i.e., in
             actions instituted subsequent to the date of this decision,

(continued…)

             and that, although Pa. R.C.P. [No.] 1009(a) provides that a writ
             shall be served within thirty days after issuance or filing, it may,
             pursuant to Pa. R.C.P. [No.] 1010(a), be reissued at any time after
             the original issuance during a period equivalent to that permitted
             by the applicable statute of limitations for the commencement of
             the action; further, each valid reissuance gives rise to a new
             equivalent period during which the writ may again be reissued.
             See, e.g., Ehrhardt v. Costello, [264 A.2d 620 (Pa. 1970)]; Salay v.
             Braun, [235 A.2d 368 (Pa. 1967)]; Zarlinsky v. Laudenslager, [167
             A.2d 317 (Pa. 1961)]. Thus, in the instant case, it is clear that if
             appellant validly commenced her action so as to toll the running of
             the statute when she filed her praecipe on August 28, 1969, her
             action is not barred by the statute of limitations, since she
             effectuated service of a writ reissued well within two years from
             both the date when she filed her original praecipe in August and
             the date when she had the writ reissued the following April.

Lamp, 366 A.2d at 885.


                                              5
             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. Since the manner in
             which writs of summons are to be prepared and delivered
             to the sheriff for service is not covered by our rules and
             since there are differences among the judicial districts of
             Pennsylvania in the procedures followed in these matters,
             a plaintiff should comply with local practice as to the
             delivery of the writ to the sheriff for service. If under
             local practice it is the prothonotary who both prepares the
             writ and delivers it to the sheriff, the plaintiff shall have
             done all that is required of him when he files the praecipe
             for the writ; the commencement of the action shall not be
             affected by the failure of the writ to reach the sheriff’s
             office where the plaintiff is not responsible for that
             failure. Otherwise, the plaintiff shall be responsible for
             prompt delivery of the writ to the sheriff for service. Cf.
             Pa. R.C.P. [No.] 1009.
Lamp, 366 A.2d at 889 (emphasis added and footnote omitted).
              Subsequently,     in   Farinacci     v.   Beaver    County     Industrial
Development Authority, 511 A.2d 757, 759 (Pa. 1986), the Supreme Court clarified
its holding in Lamp and held that, in order to fall within the Lamp rule, a plaintiff
must make a good faith effort to effectuate notice of the commencement of the
action. In Farinacci, the plaintiffs’ counsel filed a praecipe for a writ of summons
on the last day of the limitations period. Instead of arranging for the sheriff to
serve the writ, counsel misplaced the file and then forgot to arrange for service of
the writ before it expired. The writ was reissued and served on the defendants
nearly two months after the original writ was issued.            The defendants filed
preliminary objections claiming that the statute of limitations was not tolled. In
response, the plaintiffs challenged the propriety of the defendants’ raising the issue
on preliminary objections. The trial court sustained the defendants’ preliminary
objections and dismissed the action. The Superior Court affirmed.

                                          6
              After noting the procedural irregularities, the Supreme Court held in
Farinacci that a praecipe for a writ tolled the limitations period only where the
plaintiff did not engage in conduct that stalled the process. The Court determined
that neglecting the file for more than a month after it was misplaced reflected that
the plaintiffs’ counsel did not satisfy the requirement to make a good faith effort to
accomplish notice of the action’s commencement.          Additionally, the Supreme
Court made clear that the good faith requirement discussed in Lamp requires
affirmative action:

             [E]ight or nine days of the delay was attributable to
             counsel’s simply misplacing the file. Such is not
             necessarily inconsistent with a finding of good faith. The
             remaining four weeks’ delay is attributable only to
             counsel’s faulty memory. As plaintiffs have failed to
             provide an explanation for counsel’s inadvertence [that]
             could substantiate a finding that plaintiffs made a good
             faith effort to effectuate service of the writ, we are
             constrained to hold that the order of the [trial court]
             granting [the] defendants’ preliminary objections and
             dismissing [the] plaintiffs’ action was not an abuse of
             discretion . . . .
Farinacci, 511 A.2d at 759-60 (emphasis added).
              Subsequently, in McCreesh, the Supreme Court again addressed
“what constituted a good faith effort by a plaintiff to effectuate notice to a
defendant of the commencement of an action.” 888 A.2d at 665. In that case, the
plaintiff filed a praecipe to issue a writ of summons within the two-year statute of
limitations and attempted to serve the City by sending the writ to the City’s Law
Department by certified mail. The City acknowledged receipt. Three months later,
the plaintiff filed a complaint, requested reissuance of the writ, and properly served
the City Law Department through a competent adult hand delivery. Pa. R.C.P.
Nos. 400.1 and 402.
                                          7
                 The City filed preliminary objections asserting that the service of the
first writ did not comply with Pa. R.C.P. No. 400.1, and, therefore, the complaint
was untimely filed. The trial court overruled the City’s preliminary objections. On
further appeal, the Commonwealth Court held that the plaintiff did not establish a
good faith effort to effectuate service under the Lamp rule because the plaintiff did
not comply with the local rules relating to service.
                 The Supreme Court reversed.       The Court first observed that, in
applying Lamp and its progeny, Commonwealth and Superior Courts had
“formulated inconsistent rules,”3 some requiring strict compliance with rules
governing service in order to satisfy the good faith required under Lamp and
Farinacci, and others providing a more flexible approach, “excusing plaintiffs’
initial procedurally defective service where the defendant has actual notice of the
commencement of the litigation and is not otherwise prejudiced.” 888 A.2d at 666.
The Court in McCreesh concluded:

               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 [cases], which, applying Lamp, would
               dismiss only those claims where plaintiffs have
               demonstrated an intent to stall the judicial machinery or
               where [a plaintiff’s] failure to comply with the Rules of
               Civil Procedure has prejudiced [a] defendant.
McCreesh, 888 A.2d at 674. The Court reversed the Commonwealth Court’s
decision because the plaintiff had supplied the City with actual notice and
remanded for a determination as to whether the City suffered prejudice due to the
delay in effectuating service.

      3
          See 888 A.2d at 673-74.

                                            8
             In Daniel v. City of Philadelphia, 86 A.3d 955 (Pa. Cmwlth. 2014),
this Court reviewed a factually similar case, albeit without reference to McCreesh.
The plaintiff in Daniel allegedly was injured on June 19, 2010. On May 22, 2012,
the plaintiff filed a personal injury complaint against the City. She did not serve
the complaint. On January 29, 2013, more than seven months after the statute of
limitations expired, the plaintiff reinstated her complaint, and she served the City
on February 1, 2013.
             The City did not file preliminary objections. The City filed an answer
and new matter asserting that the statute of limitations had expired. Thereafter, the
City filed a motion for judgment on the pleadings, alleging that the plaintiff failed
to serve the complaint before the statute of limitations expired, thus barring her
cause of action.
             The trial court granted the City’s motion for judgment on the
pleadings, and this Court affirmed. Citing Lamp and Farinacci, we observed that,
in order to toll the statute of limitations, a plaintiff must make a good faith effort to
serve the complaint in a timely manner. Daniel, 86 A.3d at 957. We reasoned that
the plaintiff validly commenced her action when she filed her complaint on May
22, 2012, just within the two-year period, but, as in this case, the plaintiff did not
attempt to serve this complaint on the City. Consequently, we concluded that the
plaintiff failed to toll the statute of limitations, and when she reinstated the
complaint on January 29, 2013, the statute of limitations had expired. See also
Hite v. Southeastern Pennsylvania Transportation Authority (Pa. Cmwlth., No.
1101 C.D. 2018, filed April 5, 2019), slip op. at 5 (“under long-standing




                                           9
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”).4
               Appellant argues that the trial court erred in granting summary
judgment based on the following assertions.5 First, Appellant contends that she
served her complaint within the required statute of limitations. More specifically,
Appellant asserts that she filed the (original) complaint on October 10, 2017, and
served the (reinstated) complaint on July 6, 2018.                 However, in making this
argument, Appellant relies on decisions wherein the statute of limitations was
tolled, and those cases are factually and procedurally distinguishable. See, e.g.,
Smith v. City of Philadelphia, 609 A.2d 823 (Pa. 1971) (service of joinder
complaint was attempted); Fox v. Thompson, 546 A.2d 1146 (Pa. Super. 1988)
(service was attempted, but defendant concealed its address to avoid service); and
Sherry v. Trexler-Haines Gas, Inc., 541 A.2d 341 (Pa. Super. 1988) (service was
attempted).
               Further, while the trial court decided this matter based on the Lamp
rule, Appellant makes absolutely no reference to Lamp and related cases.
               Instead, Appellant asserts that her effort to effectuate service was in
good faith because it was caused by inadvertent error on the part of her counsel’s
paralegal. The trial court notes that Appellant did not attach any affidavit or
       4
         An unreported panel decision of this Court issued after January 15, 2008, may be cited
for its persuasive value and not as binding precedent. Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).

       5
          This Court’s review of an order granting summary judgment is limited to considering
whether the trial court erred or abused its discretion. Hoover v. Stine, 153 A.3d 1145, 1153 n.9
(Pa. Cmwlth. 2016). “Summary judgment may only be granted when, after examining the record
in the light most favorable to the non-moving party, 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.” Id.

                                                10
provide any other evidence to support this contention, which was made within
Appellant’s answer to the motion for summary judgment. Consequently, this
unsupported contention is not part of the record that the trial court considered when
deciding the motion for summary judgment. Pa. R.C.P. No. 1035.1.
                More importantly, in accord with the Courts’ holdings in Farinacci
and Daniel, a “good faith effort” requires, at a minimum, some affirmative
conduct. See also Chruszczyk v. City of Philadelphia (Pa. Cmwlth., No. 513 C.D.
2014, filed November 6, 2014), appeal denied, 116 A.3d 606 (Pa. 2015) (holding
that delay in service due to counsel’s oversight did not excuse the plaintiff’s failure
to timely serve the defendants or provide them with actual notice of the
commencement of litigation).6 To the extent Appellant relies on a paralegal’s
alleged mistake as reason to toll the statute of limitations, Appellant’s position is
contrary to well-settled law.
                Appellant next asserts that the City has not suffered prejudice due to
the untimely service of the complaint. Appellant argues that, assuming service was


      6
          In Chruszczyk, slip op. at 10-11, this Court explained:

                Following the Supreme Court’s decision in Lamp, where a plaintiff
                institutes an action by writ of summons, the plaintiff must make a
                good-faith effort to serve the defendants in a timely manner in
                order to toll the statute of limitations. Although there is no
                mechanical approach to determine what constitutes a good-faith
                effort, the plaintiff bears the burden demonstrating his efforts were
                reasonable. Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d
                423 (Pa. Super. 1995). However, an overt attempt at delay is not
                necessary to constitute bad faith. Ferrara v. Hoover, 636 A.2d
                1151 (Pa. Cmwlth. 1994). “Simple neglect and mistake to fulfill
                the responsibility to see that requirements for service are carried
                out may be sufficient to bring the rule in Lamp to bear.” Id. at 1152
                (citation omitted).


                                                 11
untimely, the trial court nevertheless erred because the City did not show prejudice
caused by the Appellant’s delay. Appellant again relies on cases that are factually
and procedurally distinguishable.7 Further, the question of prejudice arises only if
a plaintiff uses procedurally defective service but still manages to provide the
defendant actual notice of the litigation in a timely manner. McCreesh, 888 A.2d
at 666, 674. Because Appellant did not attempt service in a timely manner, we
reject Appellant’s assertion that the City was required to demonstrate prejudice to
establish that the complaint is time-barred under Lamp.
               Appellant also maintains that the notice sent on November 9, 2015,
pursuant to 42 Pa. C.S. §5522, sufficed as notice, as it provided the City detailed
information concerning Appellant’s fall and alleged injuries. However, notice of
intent to commence an action is simply not notice that an action has been
commenced. Nagy v. Upper Yoder Township, 652 A.2d 428, 431 (Pa. Cmwlth.
1994). In Nagy, we expressly held that a notice of intention to file suit against a
defendant did not serve to notify the defendant that a suit had been commenced,
and consequently, the plaintiff’s failure to serve the writ on the defendant within
the applicable limitations period “was within the prohibition of Lamp and its
progeny.” Id. See also McCreesh, 888 A.2d at 672 n.17.
               Appellant argues that the City took actions on the merits of the case
and is therefore barred from objecting to what Appellant mischaracterizes as
“defective service.” Appellant asserts that because the City did not file preliminary



       7
          See e.g., Byard F. Brogan, Inc. v. Holmes Electric Protective Co., 460 A.2d 1093 (Pa.
1983) (untimely filing of reply brief to motion for summary judgment); Valley Peat v. Humus
Sunnylands, Inc., 581 A.2d 193 (Pa. Super. 1990) (prejudice to the adverse party is a prerequisite
to the entry of judgment of non-pros).


                                               12
objections, but instead requested a continuance of arbitration and filed an answer
and new matter, the City waived objections regarding service.
              As the City correctly observes, a statute of limitations defense is
properly raised in new matter, not preliminary objections. Daniel, 86 A.3d at 957-
58 (rejecting the assertion that the statute of limitations defense should have been
raised in preliminary objections). The City also notes that the basis for its initial
request for a continuance of arbitration was the fact that it had just been served
with the complaint. Consequently, Appellant’s waiver argument fails.
              In sum, where non-compliance with Lamp is alleged, the
determination of whether a party made a good faith effort to effectuate notice is
within the sound discretion of the trial court.      McCreesh, 888 A.2d at 672;
Farinacci, 511 A.2d at 759. Here, the trial court determined that Appellant failed
to make a good faith effort to effectuate timely service of the complaint that was
filed on October 10, 2017, but not served on the City until July 6, 2018.
             Pennsylvania courts hold that the burden to demonstrate good faith
under Lamp remains with the plaintiff.        Consistent with the above decisions,
inadvertent failure to effectuate service, without anything more, is insufficient to
demonstrate good faith under Lamp.        The trial court properly concluded that
Appellant’s action was barred by the applicable statute of limitations.
             Accordingly, we affirm.




                                       MICHAEL H. WOJCIK, Judge




                                         13
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Crystal Collins,                     :
                                     :
                        Appellant    :
                                     :
             v.                      : No. 259 C.D. 2019
                                     :
City of Philadelphia                 :



                                    ORDER


             AND NOW, this 9th day of July, 2020, the order of the Court of
Common Pleas of Philadelphia County, dated November 6, 2018, is AFFIRMED.




                                     __________________________________
                                     MICHAEL H. WOJCIK, Judge
