Wednesday, April 17, 2019

Good Faith Effort To Complete Service Required to Avoid Statute of Limitations Dismissal

In the case of Flanigan v. Ellwood City Hospital, No. 30007-CV-2017 (C.P. Lawrence Co. Feb. 6, 2019 Cox, J.), the court found that a Plaintiff did not attempt to complete service of a Writ upon a Defendant doctor in a medical malpractice action with good faith efforts such that the Plaintiff’s cause of action was deemed to be barred by the applicable statute of limitations.  

According to the Opinion, the Plaintiff was injured while riding a dirt bike and then sought medical treatment from the Defendant medical providers.  Although the Plaintiff was a minor at the time of the accident, he was coming up on the age of majority and, under 42 Pa. C.S.A. §5524 and 5533, the applicable statute of limitations on the Plaintiff’s cause of action was two (2) years from the date that he reached majority.  

The statute of limitations in this case was set to expire on June 18, 2017.   A Writ of Summons was timely filed two (2) days earlier on June 16, 2017.  

The Writ was served on some Defendants but there was no docketed Sheriff’s Return demonstrating service on one physician Defendant. 

According to the record before the court, the Sheriff’s office made an unsuccessful attempt to serve that particular Defendant doctor at a satellite office on July 16, 2017, thirty (30) days after the Writ had been filed.  

Three and half months thereafter, that Defendant doctor was served at his office in Pittsburgh.    The doctor acknowledged that he had been presented with service papers at his Pittsburgh office on October 27, 2017.  

The Plaintiff had filed a Complaint on September 12, 2017.   The Defendant doctor filed Preliminary Objections asserting that the Complaint was not timely filed and should be dismissed based upon the statute of limitations.  

Judge Cox of the Lawrence County Court of Common Pleas noted that a statute of limitations can be tolled by the filing of a Writ of Summons.   After a Writ is issued, a Plaintiff has thirty (30) days to serve the Writ under the Rules of Civil Procedure pertaining to service.    The court noted that the Writ may be reissued and that the tolling effect on the statute of limitations continues along with the reissuance of a Writ of Summons as long as a good faith effort is made to complete service.  

In an effort to show good faith in this case, the Plaintiff submitted a document asserting that he, the Plaintiff, had asked his attorney multiple times to serve the Defendant doctor at his place of employment in Pittsburgh, but that the Plaintiff’s counsel had responded that the efforts to serve the doctor at the satellite office were legally sufficient.   According to the Plaintiff, service was finally made on the Defendant doctor after the Plaintiff begged his attorney to serve the doctor at his place of employment in Pittsburgh.

The court noted that, under Pennsylvania law, a client may be bound by the acts or statements of his attorney when such acts or statements are completed within the scope of the attorney’s authority.   The court found that, notwithstanding the Plaintiff’s personal efforts to push his attorney to complete service in another manner, the Plaintiff was bound by the actions, or inaction, of his counsel.  

Accordingly, the court did not consider the Plaintiff’s own actions while being represented by his attorney when assessing whether or not a good faith effort had been attempted to complete service.  

Consequently, since proper service was not made prior to the expiration of the statue of limitations, the court found that the Plaintiff failed to meet his burden of demonstrating evidence of actual notice on the part of the defense of the lawsuit or meet his burden of showing good faith attempts to complete service on that doctor.  

Given that it was found that the case was untimely filed, the court granted the Defendant doctor’s Motion to Dismiss. 

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 19, 2019).

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