Defense Digest

NO SHOES, NO SHIRT, NO GOOD FAITH - NO SERVICE

By Allison Bressler, Esq.*

Pennsylvania jurisprudence requires a plaintiff to make a good faith effort to effect service of process. During April,l 2003, two Pennsylvania appellate decisions handed down on consecutive days addressed the Commonwealth's requirement that a plaintiff make a good faith attempt to serve the defendants.

These recent holdings further define the requirement that plaintiffs bringing suit in the Commonwealth of Pennsylvania must act in good faith to effect service of process upon the defendants. The Superior Court of Pennsylvania held that good faith is a subjective standard to be decided by the trial court on a case-by-case basis. While process need not be immediately and continually reissued by the plaintiff until service is made, the plaintiff must act promptly and in compliance with the applicable local rules of civil procedure in the specific county where the suit is initiated so as to avoid a judgment being entered against him.

In the first case, Parr v. Roman, 2003 PA Super. 146 (2003), the Superior Court recognized that, pursuant to what has been considered the leading opinion, Witherspoon v. City of Philadelphia, 768 A.2d 1079 (Pa. 2001) (plurality), Pennsylvania courts have required that process be immediately and continually reissued by the plaintiff until service is made, if service of process cannot be made prior to the expiration of the statute of limitations. While the plaintiffs, Dorothy and Frank Parr, ran afoul of Witherspoon by failing to have process in their personal injury action repeatedly reissued until they obtained a good address for the defendant, Michelle Roman, the Superior Court noted that the language of the leading opinion is dicta and not binding upon the Parrs. Thus, Pennsylvania law continues to simply require good faith efforts to effectuate service of process. Whether or not a plaintiff has made a good faith effort to serve the defendant is a question within the sound discretion of the trial court to be answered on a case-by-case basis. Quite simply, Witherspoon allows trial courts to forego a hearing and enter judgment on the pleadings for a defendant only when it is clear that a plaintiff did not exercise good faith to ensure that a writ was served.

In Parr, the appellate court found that the trial court erred in entering judgment on the pleadings without giving the Parrs the opportunity to show that they made a good faith attempt to serve process on the defendant. The trial court specifically noted that good faith efforts to locate a party include: inquiries of postal authorities, relatives, neighbors, friends and employers, as well as examinations of phone books and motor vehicle records. However, in making its decision, the trial court did not consider any good faith efforts alleged by the Parrs, including a postal search, voters' registration search, Internet and phone book searches, and hiring two private detectives. Parr, 2003 PA Super. 146, at *17.

If believed by the fact finder, the Parrs' claims-that Roman was not served more promptly because she had moved, and it was difficult to ascertain her address; that each month they took significant steps to locate Roman; and that the typographical error made in the address in their first effort to effectuate service was irrelevant because Roman did not reside at that address at the time of attempted service-would have served to show that the Parrs made a good faith effort to notify Roman of the lawsuit. While the appellate court pointed out that the Parrs did, in fact, wait until the day before the statute of limitations ran to file the writ of summons, "the law still permits this and allows service [of the summons] so long as it is made within the time period allotted or even longer if the plaintiff acts in good faith to try and locate and serve the defendant." Id. at *21.

The day following its Parr decision, the Pennsylvania Superior Court issued another opinion related to Pennsylvania's mandate of good faith in the service of process. In Ramsay v. Pierre, 2003 PA Super. 148 (2003), the court recognized Pennsylvania's adoption of the Lamp rule requiring a plaintiff to make a good faith attempt to effect service of process in a timely manner. Under the Lamp rule, service is still considered timely where an action is commenced any time prior to the running of the statute of limitations, but service does not actually occur until after the expiration of the statutory period. Id. at *16 (citing Lamp v. Heyman, 366 A.2d 882 (Pa. 1976).) However, what constitutes a "good faith effort" is assessed on a case-by-case basis.

The Superior Court has explained the good faith requirement as follows:

It is not necessary that the plaintiff's conduct be such that it constitutes some bad faith act or overt attempt to delay before the rule of Lamp will apply. 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.

Ramsay, 2003 PA Super. 148, *16 (quoting Rosenberg v. Nicholson, 597 A.2d 145, 148 (Pa. Super. 1991).)

In conducting a good faith analysis, the court considers whether a plaintiff complied with the applicable rules of civil procedure of the particular county in which the suit is initiated and the timeliness of a plaintiff's effort to effect service.

In Ramsay, the appellate court affirmed the judgment entered against the appellant tortfeasor in the Court of Common Pleas of Philadelphia County. That judgment upheld the Philadelphia Municipal Court's denial of the appellant's preliminary objections, holding that the plaintiff had complied with the applicable local rules of Philadelphia procedure when, after filing his complaint three days before the statute of limitations ran, he attempted to serve the defendant at his last known address. When the plaintiff's initial attempt to serve the defendant was unsuccessful and the case was dismissed without prejudice for lack of service, the plaintiff found a new address for the defendant and had the matter re-listed for trial, and unsuccessfully attempted service at the new address through a constable. Despite the fact that the second address was valid, the matter was again dismissed without prejudice for lack of service. The plaintiff was granted leave to effect alternate service pursuant to the Philadelphia Municipal Court Rules of Civil Procedure, and served the complaint by certified mail, return receipt requested. Under the circumstances, the Municipal Court found that the plaintiff's conduct constituted a good faith attempt to effect service despite the nine-month period between filing the complaint and service of process on the defendant.

Specifically, the Superior Court found that Ramsay "did not attempt to prevent service, thwart the progress of the lawsuit, or stall the legal machinery." Ramsay, 2003 PA Super. 148, *21. To the contrary, the plaintiff-appellee made repeated attempts to effect service throughout the nine-month period. "[H]e did not sit idly or disregard his duty to ascertain appellant's whereabouts after the complaint was returned without service." Id.

These recent holdings confirm that a plaintiff must make a good faith effort to find and serve the defendants in a timely matter once he has filed a writ of summons. The plaintiff must engage in a course of action which propels the lawsuit forward. It follows that if the plaintiff attempts to prevent service or impede the progress of the lawsuit, judgment may be entered against him. However, the analysis of what constitutes a "good faith effort" to effectuate service in a timely fashion is, for now, left within the trial court's discretion on a case-by-case basis to be determined within the guidelines the appellate courts have outlined.

* Allison is an associate in our Philadelphia, PA office. She can be reached at (215) 575-2897 or at abressler@mdwcg.com.