*1 FLAHERTY, ZAPPALA and Justice Justice Justice Chief or decision consideration in the participate not did CAPPY this matter.
768 A.2d WITHERSPOON, Appellant, v. John PHILADELPHIA, Appellee. CITY OF Pennsylvania. Supreme Court Oct. Submitted 26, 2001. March Decided *2 Freeman, Richard Witherspoon. G. for John Ostrow, City Alan Philadelphia, C. for of Philadelphia. FLAHERTY, C.J., ZAPPALA, CAPPY, Before CASTILLE, NIGRO, SAYLOR, NEWMAN JJ.
OPINION THE ANNOUNCING JUDGMENT
OF THE COURT ZAPPALA, Justice granted appeal
We allowance of to consider extent of inquiry regarding be made efforts to serve process purposes of determining of a whether writ of summons tolled for commencing the limitation in the below find no error decisions action. We
an affirm. therefore injured that his foot when he alleges he Witherspoon
John Holmesburg at Prison drain fell a loose shower slipped and on 15, 1995, in compliance 1994. On March September on notified the Witherspoon’s § counsel with Pa.C.S. 12, 1996, September claim. of his On City Philadelphia prothono- of summons and the praecipe for writ counsel filed 14,1997. May hearing tary scheduled an arbitration However, it the writ was unsuccessful. An to serve time, not, file server did appears no service”. The “return of a “return of service” either captioned form “Affidavit Ser- contains a original record 1997. The April server completed vice” reads: part first form *3 Oct., 1996,
I, Rome, day personally did the 11 of on Joel of Action copy the Summons Civil see below with (ADDRESS), to PA pursuant P.M. at the above 12:45 Cty. I for Phila. to service of R.C.P. 400.1 relative years age that the state- I over 18 of verify that am true, my of are to the best of this of Service ments Return belief, to the and are made knowledge, information relating of unsworn statements provisions PA.C.S.A. to authorities. form, immediately part appears of which
The second below, handing of of service other than contains a list methods himself, mirroring to the copy original process of server, 402(a)(2). completed by As Pa.R.C.P. reads: section defendant(s), on circle one
If is not made following: defendant(s) ) with whom resides. family
1. Adult member is__ Relationship defendant(s) ) residence, charge
2. Adult name_). named__(Refused give defendant(s) ) Officer, manager charge 3. or clerk named_ (Refused business, give name place ) Manager/clerk place lodging in which defen- dant(s) named__(Refused reside(s), name_) to give )5. Receptionist OTHER: parties stated that who nor- unavailable__ mally accept were The form original contained record bears a stamp indicating that it was filed prothonotary April on copy 1997. The of the form contained in Appellant’s Record, Reproduced apparently taken from the files either service, counsel or of firm employed to make lacks this However, stamp. barely legible stamp located in a different area of the form seems indicate: 97 APR “RECEIVED AM 9:01 PRO PROTHY.” event, any
In appears it appear- based the title and form, ance of the upon its prothonotary entered a notation on the docket: “ll-OCT-96 12:45:00 AFFIDAVIT OF SERVICE FILED OF BY SUMMONS PERSONAL SERVICE UPON DEFT. CITY OF PHILA.” The next entry, “6-MAY-97”, docket dated reads: “CORRECTIVE ENTRY. NOTE THAT THE PLEASE AFFIDAVIT OF SERVICE UPON THE CITY OF PHILA. DOCKETED ON OCTOBER 1996 WAS DOCKETED IN ERROR AND BE SHOULD DOCKETED AS ATTEMPTED SERVICE NOT FOUND.” 7, 1997, May
On
Witherspoon
counsel for
complaint,
filed a
indicating that the action had been
commenced
writ of
12, 1996,
summons on September
pursuant
and that
to Pa.
401(b)(5)
R.C.P.
complaint
was to be treated as the
equivalent of a reissued writ.
complaint
was served on
*4
3,
June
1997.
City
preliminary objections
filed
asserting
that the failure to serve the writ within thirty days as required
401(a)
by Pa.R.C.P.
it pursuant
reissue
to Pa.R.C.P.
401(b)(1) “effectively
(2)
any
end[ed]
extension of the two
year
statute
limitations which expired
on September
1996.”
pleas
The common
court sustained
preliminary objec-
tions and
stricken,
ordered the service
effectively terminating
Witherspoon’s action on account of the statute of limitations.
Citing
v.
Lamp Heyman,
(1976),
469 Pa.
imposing fact 21a, focused on the the court service,” at R. Opinion to only one unsuccessful Witherspoon made September 1996 June between of summons the writ Court, argued that he Witherspoon In Commonwealth faith because good a lack of effort faulted for should not be failure server’s was not served was the writ reason accepting City’s agents into the status inquire to of service. With- filing of a return and his erroneous incarceration, fact that and the that his argued also erspoon claim, were his intention to file on notice of City was considered. factors to be relying on arguments, rejected these Court
Commonwealth (Pa.Cmwlth. 652 A.2d Township, Yoder Upper v. Nagy 1994). case, lack of faith court stated that In that intentionally not plaintiff did found where the could be even lawsuit; of the institution the defendant delay notifying to finding of failure support could neglect or mistake simple notice of intention also held that the Lamp. Nagy with comply by 42 Pa.C.S. government required unit against suit file does not inquiry. Such notice bearing had no on the § 5522 his action, change could an and a commence itself A having given such notice. not to sue after mind and elect intention, initial notice of having received the government unit within the complaint with a writ or having been served but not a reasonable be said to have period, might well litigation. Com- subject not be that it would expectation Witherspoon’s incarcera- further held monwealth Court moment, represented he was at all times of no since tion was by counsel. pleas appeal that the common
Witherspoon argues which he would hearing, conduct a failing court erred his to introduce evidence meet opportunity had the have City of notify showing good faith effort burden have He asserts that he would of the action. commencement not or mistake did neglect able to demonstrate been him; attempted had with his server completely lie no authorized accepted not because writ but it was serve the *5 it. agent present Department was at the Law receive Witherspoon also asserts that he had obtained a deferral of “with hearing scheduled due to his incarceration no arbitration Appellant’s opposition part City.” recorded on the Brief City waiting period at 7. “Where such a was in effect and the action,” argues, alleged took no “it cannot be he Id. at plaintiff has stalled all.” readily can argument
The latter be dismissed. The application stay proceeding for of the arbitration was filed 7, 1997, May day complaint the same was filed. A letter city Witherspoon’s from the assistant solicitor to counsel dated 6, 1997, May which application stay was attached to the for City of a to a response, agree lieu indicated that the “cannot May deferment of the arbitration scheduled for 1997.” It City being further advised that the had no record of served summons, suggested process with the writ of server’s non-service, actually return of service was an affidavit of and stated that assistant solicitor had Prothono “contacted the tary clear-up apparent discrepancy between the docket Thus, filings.”1 contrary Witherspoon’s entries contention, stay of hearing “unop the arbitration was not posed” City acquiesced any and the cannot said to have Indeed, delay. Witherspoon’s application stay of arbi proceeding tration acknowledged, City contested service complaint the writ even before was filed. Witherspoon’s argument
We next consider that the common pleas court erred in not conducting hearing. Because this argument only can succeed if the evidence that would have produced healing been such a could have affected the outcome, accept Witherspoon’s we will proof” “offer of as true argument, examining the sake of it in the context applicable rule. Lamp,
Prior to adoption before the of the Rules of Civil Procedure, developed through rule had law regarding case containing We note that the date of the letter this statement corre- sponds entry” to the date the “corrective in the docket. It would appear prepared that the “return of service” referred to affidavit April server filed in of 1997. summons that by issuance of a writ of
actions commenced keep his cause of to “continue allowed the *6 of by reissuing period the writ within a time action alive” statute of limitations to the cause equivalent the 290, 402 Pa. 167 A.2d Zarlinsky Laudenslager, action. v. of (1961). 317, filing praecipe within the statute 319 The the action, and of the of limitations commenced the reissuance “equivalent period,” action alive for another kept writ the attempted. purpose or even whether service was made identifying praecipe the as the commence- the rule action, prothonotary regard ment of the without when the it, actually writ or the sheriff served was “to free issued the may that statute of limitations plaintiff the from the risk the time, act in him if he acts in but someone else fails to bar Braun, 887, v. 427 quoting Salay 366 A.2d at Lamp, time.” (1967). 368, 235 A.2d Pa. step curbing potential a first toward the
Lamp represented apparently in this It had become for abuse inherent rule. praecipe for writ of summons but common for counsel file prothonotary instruct not to deliver the writ to the sheriff the Acknowledging practice for that this was consistent service. in but not with its Salay with the letter of the rule stated practice changed the the rule purpose, disapproved we prospectively pursuant supervisory power. to our We stated decision, in actions instituted after the date the an “a writ of summons shall remain effective commence if from a of conduct only action refrains course legal machinery in he has which serves to stall its tracks the just in motion.” Id. at 889. further indicated that “a set We delivery as to comply practice should with local Id. writ to the sheriff service.” later, County A in Farinacci v. Beaver Industrial decade (1986), Authority, 510 Pa. 511 A.2d Development requires good-faith effort “Lamp we stated Although action. to effectuate notice of commencement reading from a good-faith requirement apparent is not itself, interpret rule mindful of the context in the rule we which it was Id. This context was identified announced.” by next quoting sentence from Lamp purpose that our was “to there avoid situation which a can bring but, action, making an not a good-faith notify effort defendant, retain exclusive control over it for permitted of that excess the statute of limitations.” 366 A.2d
The facts
praecipe
Farinacci were that a
for writ of
summons was
last day permissible
filed
within the
statute of
prothonotary
limitations. The
issued
writ
following day,
plaintiffs’
but
misplaced
counsel
the file and
request
thus did not
pay
sheriff to serve
writ or
Although
days later,
such service.
the file was found several
forgot
counsel
necessary steps
take the
to effectuate ser-
vice, and the original writ was never served. Approximately
one week after
original
expired,
writ
counsel had it
*7
and all
reissued
defendants were served
next
within the
two
weeks. We
pleas
affirmed the common
court’s dismissal of
the action. We
determined that
to pro-
“failed
an explanation
vide
for counsel’s inadvertence which could
finding
a
good-faith
substantiate
that plaintiffs made a
effort
to effectuate
of
service
the writ.”
This case yet pattern another fact in which a writ was not Farinacci, As served. indicated each “[I]n case, where noncompliance with Lamp alleged, the court must determine in its sound discretion good-faith whether a effort to effectuate notice was (emphasis made.” Id. at added). Accordingly, the court’s decision is reviewed for of abuse discretion. Farinacci,
Like the writ in this case was not served within thirty days as required by 401(b), Pa.R.C.P. and the time service was made the period expired. had Unlike Farinacci, in this case process counsel delivered to the writ a server, who attempt made an to it in timely fashion.2 In Farinacci, no we found abuse discretion in the conclusion a good-faith lacking effort was delay where the was appear It would the failure to reissue or make additional at- tempts to serve the writ between April October of 1996 and was due to a already mistaken belief that service had been made. memory. faulty to and only counsel’s inadvertence
attributable days thirty case, which allowed In this the “inadvertence” having is attributable to been made without service lapse attempts until to make failure additional server’s made, of no to make and file a return was his failure service 405(a) (e), required by Rules service “forthwith” and/or the results of the ascertain promptly failure to counsel’s may be considered question thus efforts. process server’s a sufficient basis to at service is attempt the one as whether from Farinacci. distinguish this case again on the helpful it is to reflect question, To address this rule, Lamp as reiterated refined underlying rationale may be “commenced” in Farinacci. Although an action summons, original until filing writ of praecipe unaware that he has defendant remains served the contrary unfair, as aswell sued. It would be been inherent^ limitation, permit limita- statutes purposes being apprised without the tion to be tolled subject liability. Thus to be might that he continue link between gave significance we added requirement of the writ and the praecipe issuance service, essence, recognized or at least In we writ be served. service, subse- as a kind of condition faith complete the commencement quent that must be fulfilled Farvnacci, In we praecipe. begun by the action further, finding no reasoning step distinction pursued the lack withholding intentional between an *8 due to counsel’s inadvertence. service rules, of these again general intent We note once an action Salay, plaintiff is to commence stated in to allow very at the last moment before the by filing praecipe even penalized and be because the period expires not limitation (issuance by follow-up activity protho- of the writ “official” sheriff) completed is not also by of writ notary, service and Farinacci establish period. within the limitation activity is follow-up that attribut- any regarding that failure officials, agents, public rather than able to the or his case, In this counsel elected use purpose. falls outside this
397 firm private to make service rather than the sheriff. With- (counsel erspoon by agents is bound the actions of these server) way the same Farinacci (or inaction) by was bound the actions of attorney. his Since thirty the writ was days, not served within the condition necessary complete timely of commencement the action was not fulfilled. juncture,
At it appropriate becomes reassess of “equivalent period” wisdom the In light doctrine. changes practice application and in of beginning the rules with Lamp, any justification we fail to see for the continuation of this common' law doctrine in present circumstances. The notion that an “kept action can period alive” for same of time as the limitations period although the defen- action, dant has not been inherently made aware of the is inconsistent with the requirement that make a good faith notify the of defendant the action. It is contrary also to the policy underlying periods as a whole, as is particularly evident respect with causes four, with periods five, action years and six § more. See Pa.C.S. et seq. context,
As we have observed another of process Service is a by mechanism which a court obtains jurisdiction defendant, therefore, of a the rules concern- ing service of process strictly must be followed.... Without service, personal valid a court jurisdiction lacks of a defen- powerless dant judgment against to enter him or Thus, improper her.... not merely procedural service is ignored defect that can be when a subsequently against learns an action him or her. Services, Corp. Inc.,
Cintas v. Lee’s Cleaning 549 Pa. (1997). A.2d importance 917-18 Given the original process in completing progression events commenced, which an action we deem it necessary where progression “straddles the line” of the limitation must be served within the time allowed or, the Rules Civil if made, Procedure service cannot be *9 immediately continually and reissued until must be 401(b)(2) Although “[a] made.3 Pa.R.C.P. states service complaint any time or a reinstated at may be reissued writ added), (emphasis cannot be any and number times” of a permit writ reinstatement construed reissuance as to to “revive” an action which the complaint expired. period has reasons, that the common foregoing
For we conclude City’s granting its in pleas court did not abuse discretion we order of objections. Accordingly, affirm the preliminary Court, which affirmed that order. the Commonwealth SAYLOR, J., concurring opinion in which files JJ., NIGRO, join. CASTILLE CAPPY, NEWMAN, J., dissenting opinion files a which J., joins. concurring.
SAYLOR, Justice, upon I failure concur the result based City Philadelphia for a upon effectuate service dissent, however, I agree nine with the lead months. immediately process must opinion’s approach that “the be to toll the until service is made” order continually reissued Further, unduly applicable period of limitations restrictive. dissenting points legislative out that opinion aptly periods are tied prescriptions generally for limitations process. and not to service of Per- commencement of actions reason, including the haps many jurisdictions, for this other upon mechanisms government, federal have relied rule-based prosecution encourage diligent complaints once order 430(a) provides: “If cannot be made 3. We note that Pa.R.C.P. may special rule move the court for a under the directing accompa- order the method of service. The motion shall be investigation stating nature and nied an affidavit extent which been made to of the defendant determine whereabouts (b)(1) why and the reasons service cannot made." Subsection requirements by publication. details and form for service availability provided methods of service in the rules alternative consigned vigilant plaintiff not be to an endless assures that the need cycle reissuing attempting personal service. *10 filed, specifically without modifying the tolling effect of the commencement of an action in relation to periods. See, 4(m);1 e.g., Fed.R.Civ.P. Scrimer v. Court, Eighth (Nev. Judicial Dist. 998 P.2d 1193-94 2000). Thus, prior to incorporating a fairly rigorous new and paradigm law, into our decisional I preferable would find it refer the matter to the Civil Procedural Rules Committee for consideration of moderate, the merits of more rule-based options. NIGRO, JJ.,
CASTILLE join this concurring opinion. NEWMAN, Justice, dissenting.
I dissent. opinion’s The lead abolition of “equivalent period” doctrine is such an unwarranted break from the law, common and will have such drastic consequences for practitioners, that I cannot subscribe to it.
The question central in this case is whether one attempt to serve writ of summons that was issued within the limitations period can qualify “good as a faith” effort sufficient to avoid a defense, statute of limitation or whether a may inquire court into subsequent efforts of to effect in determining “good faith.” opinion The lead has chosen the course, and, so, latter in doing jettisoned a well-under- stood doctrine in favor of an standard, uncertain and onerous which now demands that “be immediately and continu- ally reissued until is service made.” This elimination of the
“equivalent period” ignores doctrine statutory definition of when an commences, action provides guidance insufficient practitioners courts and in determining “good whether the faith” satisfied, standard has been disregards the other 4(m) 1. Rule defines the time in which service of federal must be achieved, as follows: If- service of complaint the summons and upon is not made days court, defendant within after complaint, upon motion or on its own initiative after plaintiff, notice to the shall prejudice dismiss the action without as to that defendant or direct time; that service specified be effected provided within a that if the failure, shows cause for the the court shall extend the time for appropriate period. service for an has been to defendants where protections available dilatory effecting service. action,
Generally,
require
that “[a]n
statutes
the time
must
commenced within
proceeding
appeal
be
chapter....”
42 Pa.C.S.
specified
pursuant
in or
this
5501(a)
added).
legislature
(emphasis
§
has defined
as,
matter is
of an action
commenced
“[a]
commencement
embodying the
chapter
a document
purposes
when
...
such
in an office authorized
to receive
matter
filed
added).
5503(a) (emphasis
Nothing
§
42 Pa.C.S.
document.”
Pennsylvania’s
requires
statutes
service on a defendant
governs particular
satisfy
order
the limitations
requirement
that the action
filed
only
action—the
*11
of
procedure
Nor
the rule
civil
appropriate office.
does
of an action
otherwise:
regarding the commencement
state
by filing with
may
prothonota-
action
be commenced
the
“[a]n
(1)
(2)
summons,
complaint.”
a
writ of
a
ry
praecipe for
plain
A
and our rules
reading
Pa.R.C.P. 1007.
statute
therefore,
one to
that the
procedure,
of civil
would lead
believe
obtaining
filing complaint
act of
a -writ
summons or
a
mere
of
plaintiff
for a
to avoid a
enough
would be
defense
his or her
applicable statute of limitation bars
lawsuit.
period”
when
the “equivalent
did
it created
What
Court
which,
practice
technically
a
although
doctrine was to halt
for
of
compliance
statutory
the
mandates
satisfaction
the
with
limitation,
goal
of
of
resolu-
expeditious
statute
frustrated the
disputes.
to toll
plaintiff
tion of
Because
statute allowed a
the
action,
merely
his or
it was
period
by filing
limitations
the
her
filing a
by
to obtain a writ of summons
possible
a
thus
praecipe
nothing
litigation,
do
to advance
then
the
indefinitely.
developed
on
This Court
the
sitting
the action
activity,
limit this
and ex-
“equivalent period” doctrine to
Laudenslag-
plained
Zarlinsky
the
of the rule in
v.
operation
(1961):
er,
402 Pa.
Id. at 319-20 common- law in Zarlinsky, rule described who obtained a writ protected of summons was from the bar of the statute limitation, only equivalent but for a time original period.1
Although protection against it afforded some defendants litigation, Zarlinsky stale rule nevertheless tolerated an practice sought abusive that this Court v. correct (1976): Heyman, 469 Pa. give A.2d 882 the failure to the defendant actual notice of lawsuit obtaining writ refusing summons but to serve it. In Lamp, the of action September Lamp’s cause accrued on attor- ney 28, 1969, August two-year instituted suit on within the summons, period, by filing praecipe for a writ of *12 prothonotary however he instructed the not to writ deliver the to the sheriff for service. then writ two He reissued the more times, but did not effectuate service until June 1970. The granted preliminary objections trial court the defendants’ that action, the statute of limitation Lamp’s barred which the reversed, Superior per Court affirmed curiam. noting We that Zarlinsky imposed obligation plaintiff rule no on example, particular governed by two-year 1. For if a action was a statute limitation, plaintiff year a who a writ obtained of summons one keep eleven months from the accrual of his or her cause of action could years the action alive for an additional two from the issuance of the writ. filing of and that the mere of the defendant equivalent triggered protection the writ of summons modifi- However, prospective announced a the Court period. vest-pocket Zarlinsky to halt this rule intended cation practice: summons a can plaintiff situation in which purpose is to avoid the
Our but, making good a faith effort to action, by not bring an defendant, control over it for a retain exclusive notify a of limita- permitted by the statute in of that period excess tions. power over supervisory to our
Accordingly, pursuant courts, ... a writ of we rule that henceforth Pennsylvania only an action shall remain effective to commence summons conduct which from a course of if the then refrains machinery just has legal tracks he to stall its serves set motion. subsequently interpreted the
Lamp,
I
believe that
correct
particular
plaintiff attempt
faith
*13
that,
within
issued
the limitations
long
so
plaintiff
good
by
the
acted in
faith
complying with the rules
process,
for service of
he or she should
from
benefit
i.e.,
“equivalent period”,
protection from a limitations defense
span
for a
equal
time
to the limitations period
applies
to the cause of action.
opinion
The Third Circuit’s
in Patter-
(3d Cir.1990),
son v. American Bosch
is consistent 13:204; 2d, § Pennsylvania Practice tion. See 2 Standard 401(b):4. case, 2d, lead present § In the the Amram Goodrich is incorrect beyond merely holding that this an opinion goes Instead, Lamp opinion the lead understanding of the rule. rule, equivalent period doc- abolishes the rewrites trine, following standard: place and in its offers original process in com- of service of importance
Given the is by which an action of events pleting progression commenced, necessary progres- deem it where we period “straddles the line” sion Civil time allowed Rules of must be served within the made, must or, the process if service cannot be Procedure is continually until service immediately and reissued made. Now, Court, Judgment p.
Opinion Announcing the year summons one and plaintiff obtains a writ of example, if a accrued, a two- of action where days after his or her cause good faith applies, attempts and year period limitations —in writ, that with that unsuccessfully serve the defendant but —to two longer another plaintiff faith will no afford the good effort to the defendant. years attempt which to serve standard, must opinion’s plaintiff now the lead Under “immediately continually” and until is writ reissue the attempting is to serve the In cases where the made. of summons valid Pennsylvania, the writ remains defendant 401(a). only thirty days. If the process for Pa.R.C.P. thirty with that writ within is unable to serve defendant issuance, writ days he or she must reissuance of its seek pro- equivalent doctrine “immediately.” Whereas the plaintiff had in which certainty to how much time the vided defendant, lower attempt properly serve a to to locate to plaintiffs must actions locate courts now evaluate whether defendant, following attempt unsuccessful and serve the an period, end of were serve the defendant returned, If writ not sufficiently “immediate.” “defendant found”, attempting waits week before whereabouts, ascertain the defendant’s she acted he “immediately” enough to satisfy opinion’s the lead standard? about What one month? The lead will opinion’s new standard undoubtedly require additional litigation into the scope plaintiffs efforts locate and serve a an defendant after unsuccessful, faith, originally- but process. issued
Moreover, I do not “immediately believe that the con- tinuously” proposed by standard opinion necessary the lead protect defendants from a failure serve a expeditious in an A manner. defendant who claims plaintiffs delay prosecuting the action him caused *15 or prejudice may her non-pros seek a v. dismissal. See Jacobs Halloran, 551 Pa. 710 A.2d The availability (1998). of pros (1) a non purposes: dismissal serves two it protects a having defendant from to defend a lawsuit in unfair circum- plaintiffs delay stances where the has actual to caused harm (2) defense; by the requiring showing a prejudice, of it that plaintiffs ensures a is not action dismissed without an adjudication merits, on the thus a denying plaintiff his or her court, day in plaintiffs unless the own actions deprived have a proceeding. the defendant of fair The of a remedy non-pros dismissal, therefore, constitutes a more even-handed mecha- nism policing dilatory plaintiff a than the standard now imposed by opinion.2 the lead my summons, position I reiterate praecipe that once the for a writ of complaint, original process is filed as period, within the limitations Rather, longer the statute of limitation applies. no it has the been "equivalent period" Zarlinsky, doctrine described in and the modifica- Lamp, tion that placed of doctrine in which have additional restraints plaintiffs given ability on defendants the an action dismiss where the timely failed to Strictly effect service in a speak- fashion. however, ing, ability that to dismiss the action has not been based limitation, the of bar the of statute but been on the based failure to (“The satisfy Zarlinsky, the rule. 167 A.2d [statute at 319 Cf. bearing limitation] without direct on the issue here involved the since plaintiffs praecipe years filed their writ of summons ...within two happening statutory period the of the accident. The of limitation however, important, by analogy becomes and furnishes basis for the promulgated rule respect decision this court with to the within protect time which a efficiency must act of a served.”) added). (emphasis writ of issued summons but not Accord- plaintiffs assumes that
Finally, opinion’s lead standard of their grounds for dismissal compulsion of another need encouraged pursue in order be lawsuit plaintiffs assumption ignores That vigorously. in first obtain- place: in the action motivation basic course, process is since service of neces- judgment. a Of ing defendant, jurisdiction over sary personal to establish from court judgment can no enforceable there be because always plaintiffs it jurisdiction, will lacks opinion’s new rule defendant. lead interests to serve the account that fails to take into standard punitive creates will, in all litigation process basic mechanics of these of lawsuits in an the dismissal result increase probability, having “day had the of their benefit without the court.” matter, strongly the record indicates present
In the September City process with the issued on effort Witherspoon faith. used Although was server, department, than sheriffs rather private our specifically Rules Civil practice permitted Philadelphia. City within the See for service Procedure 400.1(a)(1). According to the Affidavit Service Pa.R.C.P. server, was an completed by there days the writ of summons City thirty within the serve the 401(a). Pa.R.C.P. Because the process. valid See remained *16 City’s objections without preliminary on the trial court ruled however, we have allowing present testimony, to parties nothing in the record to show whether server policy underlying ingly, opinion’s reliance “the I the lead on find inapposite, particularly where the periods a whole” requirement legislature not actual on defendant a made service of limitation. for satisfaction statute under provides ”[i]f service cannot made 3. Rule 430 special may move the court order rule the 430(a). plainly directing rule method of service.” Pa.R.C.P. As the states, however, option last for a who has this is an resort I efforts to locate the defendant for service. exhausted all reasonable encourage plaintiffs apply opinion’s will fear the lead decision any prolonged hastily out of orders too concern that alternative service investigation will in a failure into the whereabouts of a defendant result "immediately continuously” satisfy opinion's standard. lead City, appeared proper although location serve the Witherspoon complied governing claims that he with the rules 422(b). political of a subdivision. See I Pa.R.C.P. permitted Witherspoon believe the trial court should have hearing support have his contention that he believed properly service had made and did been not discover the least, failure to until a later time. At I very serve would remand trial hearing to the court to conduct a regarding Witherspoon’s respect service efforts with to the writ of 12, 1996, September summons issued and to determine qualified “good whether as a those efforts faith” City. reasons, For I these dissent.
CAPPY, J., joins Dissenting Opinion.
768 A.2d Pappas, H/W, Plaintiffs, Basil PAPPAS Theodora v. ASBEL, D.O., David S. Defendant. (PHICO)
Pennsylvania Hospital Co. Insurance and The Com Pennsylvania Liability monwealth of Medical Professional (Cat Catastrophe Fund), Defendants/Appellees. Loss Fund System Pennsylvania, United States Healthcare Inc., Defendant/Appellant. Additional
Supreme Pennsylvania. Court of Aug.
Submitted 2000. April
Decided