Englert v. Fazio Mechanical Services, Inc.
932 A.2d 122, 2007 Pa. Super. 233, 2007 Pa. Super. LEXIS 2209 (2007)
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Rule of Law:
Filing a writ of summons tolls the statute of limitations only if the plaintiff makes a continuous, good faith effort to effectuate service of process. A plaintiff's simple neglect or unintentional inaction that delays the defendant's notice of the suit can constitute a lack of good faith, especially when the defendant does not receive actual notice of the lawsuit's commencement within the statutory period.
Facts:
- On March 25, 2002, John Englert was involved in a traffic accident with an employee of Fazio Mechanical Services, Inc. (Fazio), Mr. Timko.
- On March 21, 2003, Fazio moved its business from its address at 56th and Harrison Streets to a new location.
- On September 19, 2003, the Englerts' attorney attempted to serve a writ of summons on Fazio at its old address, which had been taken from a telephone directory.
- On October 23, 2003, the Sheriff's Department filed a Return of Service indicating that Fazio was not found because it had moved, and the return provided Fazio's new address.
- On October 27, 2003, the Englerts' counsel moved his own office and began experiencing failed mail deliveries.
- On March 11, 2004, Fazio's liability carrier sent a letter to John Englert inquiring if he was making a claim and advising that the statute of limitations would expire on March 25, 2004.
- In March 2004, the Englerts' counsel received by mail the Sheriff's return from the previous October.
- On March 31, 2004, two years and six days after the accident, the Englerts' counsel filed to reissue the writ of summons.
Procedural Posture:
- The Englerts commenced an action against Timko and Fazio Mechanical Services, Inc. by filing a Praecipe for a Writ of Summons in the trial court on September 19, 2003.
- On March 31, 2004, the Englerts filed a Praecipe to Reissue the Writ of Summons.
- Appellees filed a motion for summary judgment, arguing the claim was barred by the two-year statute of limitations.
- The trial court granted Appellees' motion for summary judgment.
- The Englerts (Appellants) appealed the trial court's order to the Superior Court of Pennsylvania, an intermediate appellate court.
- A prior panel of the Superior Court affirmed the trial court's order.
- The Supreme Court of Pennsylvania vacated the Superior Court's decision and remanded the case for reconsideration in light of its decision in McCreesh v. City of Philadelphia.
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Issue:
Does a plaintiff's failure to take any follow-up action to ensure service after an initial attempt fails, coupled with a failure to check publicly available records showing the failed service, constitute a lack of good faith effort sufficient to bar the claim under the statute of limitations?
Opinions:
Majority - Orie Melvin, J.
Yes. A plaintiff's failure to take any follow-up action after an initial, unsuccessful attempt at service constitutes a lack of good faith effort required to toll the statute of limitations. The court held that once a lawsuit is commenced, the plaintiff has a duty to make a good faith effort to serve the defendant. Simple neglect, such as failing to check the court docket for a return of service or failing to inquire with the Sheriff's office, is sufficient to demonstrate a lack of good faith. The court distinguished this case from McCreesh v. City of Philadelphia, where technical non-compliance with service rules was excused, because here, the Appellees (Fazio and Timko) never received actual notice of the commencement of the lawsuit within the statute of limitations period. Notice of a potential claim from an insurance company is not equivalent to actual notice of a filed lawsuit. The Appellants' counsel's inaction, including waiting months for a mailed copy of the return despite knowing he had mail issues and despite the return being publicly available online, demonstrated an intent to stall the judicial machinery, failing the good faith test established in Lamp v. Heyman and its progeny.
Analysis:
This decision clarifies the scope of the 'good faith effort' standard for service of process, particularly in the wake of the 'flexible approach' introduced in McCreesh. The court firmly establishes that the McCreesh exception—excusing technical service defects—is primarily available when the defendant has received actual notice of the lawsuit's commencement. By refusing to extend this flexibility to cases involving simple neglect where no actual notice was provided, the opinion reinforces the plaintiff's affirmative duty to diligently pursue service. This holding underscores that plaintiffs' attorneys cannot passively rely on administrative processes and must proactively monitor the status of service to avoid having their clients' claims barred by the statute of limitations.
