Gussom, R., Aplt. v. Teagle, M.

G
                             [J-74-2020] [MO: Baer, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


    RHASHEENA GUSSOM,                              :   No. 12 EAP 2020
                                                   :
                       Appellant                   :   Appeal from the Judgment of
                                                   :   Superior Court entered on 9/26/2019
                                                   :   at No. 3245 EDA 2018 affirming the
               v.                                  :   Order entered on 10/3/2018 in the
                                                   :   Court of Common Pleas,
                                                   :   Philadelphia County, Civil Division,
    MAURICE TEAGLE,                                :   at No. 3821 April Term, 2018.
                                                   :
                       Appellee                    :   ARGUED: September 16, 2020


                                   DISSENTING OPINION


JUSTICE WECHT                                             DECIDED: March 25, 2021

        I respectfully dissent. The Majority affirms the dismissal of Rhasheena Gussom’s

negligence complaint against Maurice Teagle stemming from a July 25, 2016 motor

vehicle accident. In doing so, the Court endeavors to clarify the rule of Lamp and

McCreesh,1 which permits a plaintiff to toll the statute of limitations in a civil action where

she is unable to effectuate service of original process within the time period provided by

the Pennsylvania Rules of Civil Procedure. The Majority holds that “a trial court has the

discretion to dismiss a complaint when a plaintiff fails to offer proof that she diligently

attempted to serve process on a defendant in a timely manner and there is no evidence

to indicate that the defendant had actual notice of the action in the relevant time frame,

regardless of whether the plaintiff acted or failed to act intentionally.” Maj. Op. at 3. I

read Lamp and its progeny as requiring affirmative proof of either plaintiff’s intent to stall


1     Lamp v. Heyman, 

366 A.2d 882

(Pa. 1976); McCreesh v. City of Phila., 

888 A.2d
664

(Pa. 2005).
the judicial machinery or actual prejudice to the defendant before a civil action may be

dismissed in these circumstances. Both of these proofs are lacking here. Even under

the Majority’s formulation, however, I would find Teagle’s appellate counsel’s admission

that trial counsel received notice of the complaint through the defendant’s insurance

carrier, prompting his entry of appearance in this matter within three weeks of the July 25,

2018 statute of limitations, to be sufficient to satisfy McCreesh’s demand of proof of

“actual service.”

       As the Majority aptly observes, prior to 1976, Pennsylvania courts witnessed

repeated abuses of the Rules of Civil Procedure. Plaintiffs routinely would attempt to toll

the statute of limitations by filing a writ of summons, having the writ repeatedly reissued

as a matter of course, and then deliberately failing to notify defendants of pending

litigation. Maj. Op. at 2 (citing 

McCreesh, 888 A.2d at 665

). In announcing the Lamp rule,

we declared that its “purpose” was to “avoid the situation in which a plaintiff can bring an

action, but, by not making a good-faith effort to notify a defendant, retain exclusive control

over it for a period in excess of that permitted by the statute of limitations.” 

Lamp, 366

A.2d at 889

. Accordingly, pursuant to our supervisory power over Pennsylvania courts,

we declared that an action commencing suit “shall remain effective to commence an

action only if the plaintiff then refrains from a course of conduct which serves to stall in its

tracks the legal machinery he has just set in motion.”

Id.

A decade later,

in Farinacci v. Beaver County Industrial Development Authority,

511 A.2d 757

(Pa. 1986), we indicated that “Lamp requires of plaintiffs a good-faith effort

to effectuate notice of commencement of the action,” which was to be determined by a

court “in its sound discretion.”

Id. at 759.

At issue in Farinacci was a praecipe for a writ

of summons filed on the last permissible day under a two-year statute of limitations for

personal injury actions. When the prothonotary issued the writ the next day, plaintiffs’




                                [J-74-2020] [MO: Baer, J.] - 2
“counsel intended to immediately instruct and pay the sheriff for service,” but “he

misplaced the file.”

Id. at 758.

Although counsel ultimately discovered the file just over

a week later, he then “forgot to take necessary steps to effectuate service of the writ,”

which had to be reissued more than five weeks after it initially was issued. We suggested

in dicta that the “eight or nine days of the delay [that] was attributable to counsel’s simply

misplacing the file” was “not necessarily inconsistent with a finding of good faith.”

Id. at

760.

However, we affirmed the trial court’s dismissal of plaintiffs’ action because they

“failed to provide an explanation for” the remaining four weeks of delay—which plaintiffs

attributed “only to counsel’s faulty memory”—thereby depriving the trial court of evidence

by which to “substantiate a finding that plaintiffs made a good-faith effort to effectuate

service.”

Id.

Subsequently, in Witherspoon

v. City of Philadelphia, 

768 A.2d 1079

(Pa. 2001)

(plurality), a plurality of the Court cited Farinacci for the proposition that there is “no

distinction between an intentional withholding of service and a lack of service due to

counsel’s inadvertence” when determining whether the “condition subsequent” of

“service, or at least a good faith attempt at service,” had been fulfilled.

Id. at 1083;

see

id. (“Lamp and Farinacci

establish that any failure regarding follow-up activity that is

attributable to the plaintiff or his agents, rather than public officials, falls outside th[e]

purpose” of the rule.). Witherspoon concerned a nine-month delay in service attributable

to the process server, who declined to make additional attempts at service after the first

attempt was unsuccessful and also failed to make and file a return of no service as

required by Pa.R.C.P. 405(a) and (e). Additionally, plaintiff’s counsel failed “to promptly

ascertain the results of the process server’s efforts.”

Id. at 1083.

The plurality concluded

that “any failure regarding follow-up [service] activity that is attributable to the plaintiff or

his agents, rather than public officials, falls outside” the purpose of the rule announced in




                                [J-74-2020] [MO: Baer, J.] - 3
Lamp, as refined by Farinacci.

Id. Because Witherspoon’s counsel

opted to use a private

firm to make service rather than the sheriff, Witherspoon was “bound by the actions of

[his] agents (counsel and the process server),” and their failure to effectuate service for

the better part of a year was fatal to the civil action. Id.2

       Returning to the issue most recently in McCreesh, we cautioned against “punishing

a plaintiff for technical missteps where he has satisfied the purpose of the statute of

limitations by supplying a defendant with actual 

notice.” 888 A.2d at 674

. McCreesh thus

“embrace[d] the logic” of the Superior Court’s decision in Leidich v. Franklin, 

575 A.2d

914

(Pa. Super. 1990), “which, applying Lamp, would dismiss only those claims where

plaintiffs have demonstrated an intent to stall the judicial machinery or where plaintiff’s

failure to comply with the Rules of Civil Procedure has prejudiced defendant.” 

McCreesh,

888 A.2d at 674

; see 

Leidich, 575 A.2d at 918

(gleaning from Lamp and its progeny that:

“(1) one’s ‘good faith’ effort to notify a defendant of the institution of a lawsuit is to be

assessed on a case-by-case basis; and (2) the thrust of all inquiry is one of whether a

plaintiff engaged in a ‘course of conduct’ forestalling the legal machinery put in motion by

his/her filings”). In a footnote, we indicated “that there may be situations where actual

notice may not be absolutely necessary so long as prejudice did not result,” but declined

to “delineate such an exception” because the issue was not before us. 

McCreesh, 888

A.2d at 674

n.20.

       McCreesh was a significant departure from Farinacci and Witherspoon. Whereas

Farinacci suggested that plaintiffs carry an evidentiary burden to establish their good-faith

efforts to ensure that notice was served on defendants—which McCreesh made clear can

2       Concurring in the result, three justices, in an opinion authored by then-Justice
Saylor, agreed with the two dissenting justices that the plurality’s “approach that ‘the
process must be immediately and continually reissued until service is made’ in order to
toll the applicable period of limitations” should be rejected as “unduly restrictive.”

Witherspoon, 768 A.2d at 1084

(Saylor, J., concurring).


                                [J-74-2020] [MO: Baer, J.] - 4
be satisfied through proof of actual notice, however informal or technically deficient—

unlike the Majority, I read McCreesh as unmistakably shifting the burden to defendants

to affirmatively demonstrate either plaintiffs’ intent to stall the judicial process or prejudice

resulting from their failure to comply with the Rules of Civil Procedure in order to secure

dismissal of a civil action. As such, plaintiffs’ inadvertent mistakes are no longer sufficient

to warrant dismissal. Rather, McCreesh counsels a reversion to the threshold inquiry first

posited in Lamp: namely, has the plaintiff “refrain[ed] from a course of conduct which

serves to stall in its tracks the legal machinery he has just set in motion”? 

Lamp, 366

A.2d at 889

.

       Properly analyzed under this standard, Farinacci may have been wrongly decided

given the absence of any intent to stall over the five weeks between filing the praecipe for

the writ of summons and its eventual service upon the defendant. The same is true here,

where there is no evidence that Gussom intended to delay service of process, nor any

indication of prejudice to Teagle. To the contrary, the record shows that Gussom made

at least four attempts at service (three times in Philadelphia and once in Waynesboro,

Virginia) in her seemingly futile, interstate effort to track down Teagle, which began nearly

three months before the statute of limitations expired on July 24, 2018. This stands in

stark contrast to the plaintiffs in Farinacci and Witherspoon, who waited until the last

possible day to initiate their action and made just one attempt at service in nine months,

respectively.

       But even under the Majority’s formulation, Gussom likely satisfied her burden in

this case, notwithstanding her inexplicable failure to respond to Teagle’s preliminary

objections, which should not be condoned. Specifically, at argument, when asked if

Teagle’s trial counsel had entered his appearance in the case on August 13, 2018, upon

receiving notice of Gussom’s complaint from Teagle’s insurance carrier, Teagle’s




                                [J-74-2020] [MO: Baer, J.] - 5
appellate counsel initially deflected. However, he then acknowledged that trial counsel

had in fact entered his appearance because Gussom’s counsel advised Teagle’s

insurance company of the litigation.3 This admission is supported by evidence of record,

namely, Teagle’s September 9, 2018 preliminary objections, which included Gussom’s

complaint as an attached exhibit. The trial court’s docket thus provided a basis for the

court to inquire as to Teagle’s actual notice of the complaint within weeks of the statute

of limitation’s expiration, if not sooner depending on when the insurance carrier notified

defense counsel.

       It would strain credulity to suggest that Teagle’s counsel entered his appearance

and filed these objections without first consulting his client regarding his receipt of

Gussom’s complaint, regardless of its source. While sending a complaint to an insurance

carrier generally is insufficient to effectuate service under our Rules of Civil Procedure,

see Cahill v. Schults, 

643 A.2d 121

, 125 (Pa. Super. 1994); Schriver v. Mazziotti, 

638

A.2d 224

, 227 (Pa. Super. 1994), Ferrera v. Hoover, 

636 A.2d 1151

, 1153 (Pa. Super.

1994), I see no good reason why it should not suffice to establish a plaintiff’s good-faith

effort to serve a defendant if it results in actual notice to the defendant of the pending

litigation. Accordingly, because actual service appears to have been made here, and

there exists no evidence of intent to stall or prejudice to Teagle, I would reverse the order

of the Superior Court and reinstate Gussom’s complaint.

       Justice Donohue and Justice Mundy join this dissenting opinion.



3       See Oral Argument, Morning Sess., 9/16/2020, at 26:22-27:05 (Counsel for
Appellee: “[M]y understanding is that when counsel filed their entry of appearance on
August 13, which was beyond the statute of limitations, it was based on Appellant[’s]
counsel advising the insurance company for the defendant of the lawsuit. And at that
point counsel entered their appearance, which isn’t, as you know, a waiver of service, but
to simply make sure that they got notices of future docket events.”) (available at
https://www.youtube.com/watch?v=ve0HIMz6Wb8).


                               [J-74-2020] [MO: Baer, J.] - 6

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