Daniel v. City of Philadelphia, PICS Case No. 14-0443 (Pa. Commw. March 12, 2014) Friedman, S.J. (7 pages).

COMMONWEALTH COURT

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CIVIL PROCEDURE

Service of Process • Good-Faith Attempt • Reinstated Complaint • Statute of Limitations

Daniel v. City of Philadelphia, PICS Case No. 14-0443 (Pa. Commw. March 12, 2014) Friedman, S.J. (7 pages).

Complaint could not be reinstated after statute of limitations had expired where plaintiff did not make good-faith attempt to serve defendant original process on initial complaint. Affirmed.

Plaintiff allegedly slipped and fell on a city-owned street in Philadelphia. On May 22, 2012, just before the two-year statute of limitations expired, plaintiff filed a personal injury complaint against city. Plaintiff did not serve the complaint at this time. However, eight months later, and over seven months after the statute of limitations would have expired, plaintiff reinstated her complaint on Jan. 29, 2013.

On Feb. 1, 2013, plaintiff served the complaint on city. City answered that the statute of limitations had expired; it did not file preliminary objections on this ground. City moved for judgment on the pleadings, alleging that plaintiff failed to serve the complaint before the statute of limitations expired, thus barring her cause of action. Plaintiff claimed that city had waived the issue by failing to raise it in preliminary objections.

The court held that statute of limitations defense was properly raised as new matter in defendant's answer, granted city's motion for judgment on the pleadings and dismissed the complaint.

On appeal, plaintiff argued that the trial court erred in granting city's motion because city was barred from asserting a statute of limitations defense of "defective/late" service by way of preliminary objections after it had entered an appearance and filed an answer. The commonwealth court affirmed.

First, city properly raised its statute of limitations defense by way of answer rather than preliminary objection. (See Pa.R.Civ.P. 1030(a)(all affirmative defenses, including the statute of limitations, must be pleaded in a responsive pleading under the heading "New Matter.")).

Next, pursuant to Pa.R.Civ.P. 1007(2), a plaintiff must serve original process within 30 days after filing a complaint. If service is not made within this time, the prothonotary may reinstate the complaint, thereby continuing the complaint's validity. However, plaintiff must promptly serve the complaint, not prevent or delay service. Failure to promptly notify defendants nullifies commencement of the action. See Lamp v. Heyman, 366 A.2d 882 (Pa. 1976). Therefore, in order to toll the statute of limitations, plaintiff must make a good-faith effort to serve the complaint in a timely manner.

Here, plaintiff validly commenced her action when she filed her complaint on May 22, 2012, just within the two-year limit. However, plaintiff did not attempt to serve this complaint on city. As such, plaintiff failed to toll the statute of limitations. Plaintiff reinstated the complaint on Jan. 29, 2013, after the statute of limitations had expired. Therefore, the trial court properly determined that plaintiff did not make a good-faith effort to serve the complaint in a timely manner; that the statute of limitations defense was properly raised in city's new matter; and the statute of limitations had run.

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