February 23, 2006

Darkening
the Long Shadow
of Lamp v. Heyman

For almost as long as most of us have been practicing, the Supreme Court’s 1976 ruling in Lamp v. Heyman has withstood innumerable procedural and appellate challenges. Its oft-cited principle remains firm: plaintiffs tolling the statute of limitations with the filing of a Writ of Summons need to exercise a “good faith” effort to perfect service of process on the defendant(s) to avoid the potential, and often real, procedural abuse associated with a party intentionally, or for that matter negligently, failing to advise the defendant of the action in an attempt, real or other, to prevent the defendant from being able to engage in an active and thorough investigation of the claim, and to raise appropriate and timely defenses in response thereto.

The simple rule articulated by the Lamp Court was that “a Writ of Summons 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 it has just set in motion.” Lamp v. Heyman, 366 A.2nd 882(Pa.1976).

The Court granted review to clarify what actions constitute “a good faith effort” by a plaintiff to give notice of a civil action.

In the Supreme Court’s recent ruling on McCreesh vs. City of Philadelphia, decided on December 28, 2005, the Court granted review to clarify what actions constitute “a good faith effort” by a plaintiff to effectuate notice of the commencement of a civil action on a defendant.

Over time, the Lamp rule has generally required plaintiffs to take immediate steps to serve process (the Writ) on the defendant, and to continue to have the Writ re-issued until properly served.

A split of authority developed in the Superior and Commonwealth Courts panels, which were divided over requiring strict adherence to civil rules and procedure versus a more flexible approach, where defendant with actual notice of the litigation, not otherwise prejudiced, need not be formally served to toll this statute.

The McCreesh Court has adopted the “more flexible approach” over the more procedural and rule driven approach.

Several factors drove the Court’s opinion, including the lack of proff of prejudice to the defendant’s actual knowledge of the commencement of the litigation, enabling the defendant to initiate its investigation of the claim, against the backdrop of the draconian dismissal of a claim on technical deficiencies.

In McCreesh, a Writ was issued two days before the statute of limitations expired on the plaintiff’s bodily injury claim.

In McCreesh, Plaintiff alleged that he was injured when a tree growing on the city’s property fell on his truck as he was driving on Walnut Street. The plaintiff filed suit by filing Praecipe to issue a Writ of Summons; a Writ was issued two days before the statute of limitations expired on the plaintiff’s bodily injury claim. The Plaintiff served the City with the Writ via certified mail with the parties stipulating that the City received the Writ the day after it was issued by the Court.

Twelve weeks later, the plaintiff filed a Complaint in which the plaintiff sought personal injury damages for negligence. At the same time, the plaintiff filed a Praecipe to Reinstate the Writ.

In response, the City filed Preliminary Objections, arguing that the plaintiff’s action should be barred and dismissed as the original Writ had expired without being properly reinstated/reissued under the PRCP requiring re-issuance or reinstatement of the Writ every (30) days from the last effective issuance date.

The City requested an immediate appeal of what otherwise would have been an interlocutory and non-appealable order.

Not surprisingly, the Philadelphia Trial Court overruled the City’s Preliminary Objections. The City sought reconsideration; alternatively requesting that the trial court grant an immediate appeal of what otherwise would have been an interlocutory and non-appealable order.

In response, the trial court rendered an opinion holding that the plaintiff’s original Writ had been “presented to the city of Philadelphia in good faith.” The trial court found, in reconsidering its order overruling the city’s Preliminary Objections, that the delivery via certified mail of the plaintiff’s original Writ satisfied the requirements for service by hand delivery under the PRCP.

Reviewing the plaintiff’s failure to act during the eight weeks between the original issuance of the Writ and its re-issuance, the Commonwealth Court held that the plaintiff was not only in violation of the technical rules of civil procedure, but also that the plaintiff had not exercised good faith in perfecting service of process, thereby resulting in the Commonwealth Court reversing the trial court, with the matter being remanded to the trial court with instructions to dismiss the lawsuit.

The Supreme Court essentially held “no harm no foul,” ordering the reinstatement of the plaintiff’s action.

Granting alloctur for purposes of clarifying the Lamp v. Heyman “good faith” rule, the Supreme Court essentially held “no harm no foul,” ordering the reinstatement of the plaintiff’s action and finding that the plaintiff’s mailing of the original Writ via certified mail to the defendant sufficiently convinced the Court that the plaintiff was not attempting to abuse loop holes in the PRCP by stalling litigation and/or by not providing adequate notice of the commencement of a civil action to the defendant.

In so doing, the Court formally adopted a more flexible approach, abrogating any prior adherence to strict compliance with technical civil procedural rules. A “more flexible approach” is not tethered to rigid compliance with procedural requirements, but is instead one that is satisfied by plaintiffs providing defendants with actual notice of the commencement of the civil action, irrespective of whether that notice is technically compliant under the PRCP.

The Court has adopted a more relaxed approach in these situations, thereby effectively extending the statute of limitations for claim dismissal. The plaintiff in McCreesh merely provided notice of the commencement of the civil action by mailing a copy of the Writ, which simply contains the names of the parties, and does not contain any information or allegations regarding the cause of action, theory of liability, or extent of damages claimed.

This Writ thereby effectively satisfies the “notice” requirement in an all-too-simplistic methodology that does not address what rights defendants would have to object to the plaintiffs “notice,” and/or to any subsequent delay by plaintiffs in providing more information regarding the lawsuit, including most of the information that defendants need to analyze for exposure to liability and damages.

Vigorous dissents authored by Justices Newman and Eakin illustrate the anomalous ruling in McCreesh as it, in effect, judicially legislates a new rule of civil procedure. Conceptually, the McCreesh rule equates notice with service, notwithstanding their separate and distinct meaning in civil law.

Practical Tips

Beware the sheriff, we now need to dodge the mailman as well.

One wonders if a civil defendant like the City of Philadelphia in McCreesh, could “preliminary object” to a Writ received via certified mail as being proper “notice” of a cause of action sufficient to allow the civil defendant to consider what investigation, and defenses, might need to be initiated in response to the “notice,” and/or what defenses need to be marshalled in response to the civil “notice.”

If “objecting,” one might ask if it is sufficient to object by sending the plaintiff a letter via certified mail in which the defendant indicates that it does not consider the mailing of the Writ to have placed it on “notice” of the necessary facts essential for it to conduct its investigation into the merits and defenses to the claim.

A defendant’s inaction awaiting the plaintiff’s inaction to become claim-barring should not be considered adequate for dismissal.

Clearly under McCreesh, a defendant’s inaction awaiting the plaintiff’s inaction to become claim-barring should not be considered to be technically adequate for purposes of seeking dismissal via Preliminary Objections or some other summary dispositive motion.

Without question, this is a very curious decision, the impact of which will need to be closely monitored.

Questions concerning this decision and like issues involving casualty litigation practice and procedure, can be directed to our casualty litigation attorneys.

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