Good Faith Effort to Effectuate Service
The Pennsylvania Supreme Court granted allocatur in this case to determine whether the Superior Court’s affirmance of the dismissal of a civil complaint because the plaintiff failed to make a good faith effort to timely serve the defendant was in error and in contravention of precedent.
On July 25, 2016, Rasheena Gussom and Maurice Teagle were involved in an automobile accident. On April 26, 2018, two months prior to the expiration of the statute of limitations, Gussom filed a civil complaint against Teagle. Gussom attempted for the first time to serve Teagle at his last known address in Philadelphia a week after filing the complaint, but Gussom was advised that Teagle had since moved to Virginia. Gussom claimed that she attempted to locate Teagle in Virginia; and then, on August 22, 2018, upon locating Teagle but after the two-year statute of limitations expired, Gussom filed a praecipe to reinstate the complaint and attempted to serve the complaint via certified mail. The attempt to serve Teagle by certified mail was unsuccessful. On September 10, 2018, Teagle filed verified preliminary objections to Gussom’s complaint that (i) no good faith effort was made to serve him prior to the expiration of the statute of limitations on July 25, 2018 and (ii) the complaint lacked sufficient specificity. On September 28, 2018, Gussom believed she had located Teagle once again, this time in Philadelphia and filed to have her complaint reinstated. On October 3, 2018, the trial court sustained Teagle’s verified preliminary objections and dismissed Gussom’s complaint with prejudice.
On appeal, in a 2-1 decision, the Superior Court affirmed the trial court’s dismissal of Gussom’s complaint on the grounds that she failed to carry her burden of demonstrating that she had made a good faith effort to serve Teagle prior to the expiration of the statute of limitations. In so ruling, the court reviewed relevant decisions concerning good faith efforts to effectuate service after the statute of limitations has expired: Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), McCreesh v. City of Phila., 888 A.2d 664 (Pa. 2005), and Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122 (Pa. Super. 2007). As the court noted, Lamp was intended to protect against plaintiffs filing writs of summons to commence an action prior to the running of the statute of limitations but thereafter failing to timely effectuate service for whatever reason. Lamp held that plaintiffs had to make good faith efforts to serve the writ in order to keep it alive. The court recognized that McCreesh acted to clarify Lamp in the wake of conflicting case law that, in some instances, required strict compliance with the Rules of Civil Procedure in order to constitute good faith versus other instances where good faith was found so long as the defendant received actual notice and was not prejudiced; McCreesh sided with the line of cases that dismissed claims only if plaintiffs intended to “stall the judicial machinery” or where defendants were prejudiced. Slip Op. at 6.
In deciding the case at bar, the court ultimately relied on Englert, a case that placed the burden on the plaintiff to demonstrate that it had acted in good faith in trying to effectuate service on the defendant and which ruled that a lack of good faith did not have to be an overt act or bad faith, but rather could be inferred from neglect or mistakes. Specifically, the court found that the docket failed to reflect any activity on the part of Gussom to effectuate service from May 9, 2018 until August 22, 2018, post-expiration of the statute of limitations. The court also found that Gussom failed to identify any good faith efforts she had made with regards to service; she did not file a motion for alternative service; and she failed to file a response to Teagle’s preliminary objections “which would have been an opportunity to challenge [Teagle’s] allegations that [Gussom] failed to effectuate service.” Slip Op. at 8. Moreover, Gussom filed a motion for reconsideration with the trial court in which she claimed she had made a good faith effort but provided no details of said effort. The court agreed with the trial court that Gussom “did not allege, let alone provide, any evidence of a ‘good faith investigation to locate, or any practical efforts to serve [Teagle]’.” Slip Op. at 9. Thus, because Englert places the burden on the plaintiff to demonstrate the good faith effort put forth, the court affirmed the trial court’s decision.
Judge Strassburger was the lone dissent. Judge Strassburger concluded that Gussom had made a good faith effort to serve Teagle and that her inability to do so within the applicable statute of limitations was not intended to stall the judiciary machinery. The dissent accuses the majority of failing to adhere to McCreesh that required an intent and prejudice and instead revert to back to cases like Englert that work to erode Lamp by allowing unintentional conduct such as mistakes to be interpreted as a lack of good faith.
The Supreme Court granted allocatur to examine:
Did the Superior Court err in holding that the Plaintiff did not make a good faith effort to serve the Defendant, when the Superior Court’s decision conflicts with holdings of the Pennsylvania Supreme Court on the same legal issue?