245 A.3d 1100
Pa. Super. Ct.2020Background
- On May 19, 2015, Soisson rear-ended a truck driven by Green in Westmoreland County.
- Soisson filed a negligence Complaint on March 21, 2017 (about two months before the statute of limitations ran) in Allegheny County and attempted service using the address listed on the police report (Youngridge Drive) and later a Maryland address.
- Multiple sheriff attempts at the Youngridge Drive address failed (wrong ward, no apartment number, name not on mailbox); a private process server later filed an affidavit claiming service on "Rick Greene" at the Maryland address.
- Green filed preliminary objections asserting lack of proper service, expired statute of limitations, and improper venue; the case was transferred to Westmoreland County and a hearing was held.
- At the hearing Green and his father submitted affidavits denying residence at the Maryland address, denying knowledge of being served, and disputing the process-server return; Soisson declined a continuance and proceeded.
- The trial court found Soisson failed to make a good-faith effort to effect service and that Green was prejudiced, sustained the preliminary objections, and dismissed the Complaint without prejudice; the Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Soisson made a good-faith effort to effectuate service so as to toll the statute of limitations | Soisson: multiple service attempts, corrected address info, used private process server; efforts were reasonable and in good faith (citing McCreesh) | Green: plaintiff delayed, repeatedly attempted service at addresses where service had failed, and did not timely pursue effective service; no actual notice | Court: No — plaintiff failed to show good-faith efforts; delays and repeated failed attempts justified dismissal for noncompliance with Lamp/Farinacci principles |
| Whether McCreesh/actual notice excuses defective service | Soisson: defects should be excused if defendant had actual notice or plaintiff satisfied limitations purpose | Green: lacked actual notice until much later; McCreesh inapplicable absent actual notice | Court: McCreesh does not apply because Green lacked actual notice; plaintiff cannot rely on McCreesh to save defective service |
| Whether the trial court erred in relying on Green’s affidavits or whether those affidavits were insufficient/unsworn/surprise evidence | Soisson: Green’s affidavits were improperly verified and were a surprise introduced at hearing; plaintiff was prejudiced | Green: affidavits properly established lack of service and residence; plaintiff could have sought continuance but declined | Court: Many challenges waived for failure to preserve; plaintiff declined offered continuance; court properly considered the affidavits and plaintiff failed to rebut them |
| Appropriate remedy — dismissal without prejudice vs. setting aside service and permitting discovery | Soisson: court should set aside defective service and allow discovery to test Green’s SOL defense | Green: dismissal appropriate given prejudice and plaintiff’s failure to act in good faith | Court: Dismissal without prejudice affirmed as within trial court’s discretion because plaintiff’s conduct stalled the process and prejudiced defendant |
Key Cases Cited
- Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) (establishes that reissued writs/complaints remain effective only if plaintiff refrains from conduct that stalls legal machinery)
- Farinacci v. Beaver County Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986) (requires plaintiffs to make a good-faith effort to effectuate notice after commencing an action)
- McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005) (excuses procedural defects when defendant had actual notice; trial court has discretion to dismiss where plaintiff intended to stall or defendant was prejudiced)
- Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122 (Pa. Super. 2007) (applies Lamp/Farinacci principles; good-faith effort is case-specific)
- Devine v. Hutt, 863 A.2d 1160 (Pa. Super. 2004) (plaintiff bears burden to show reasonable efforts to notify defendant; neglect can satisfy Lamp)
- Moses v. T.N.T. Red Star Express, 725 A.2d 792 (Pa. Super. 1999) (good-faith effort to serve is assessed case-by-case)
- Brosovic v. Nationwide Mut. Ins., 841 A.2d 1071 (Pa. Super. 2004) (standard of review for sustaining preliminary objections)
- Nanty-Glo Borough v. American Surety Co., 163 A. 523 (Pa. 1932) (authority cited regarding use of affidavits and preliminary practice)