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Patterson v. American Bosch Corp.

filed: September 11, 1990; As Corrected September 24, 1990.


On Appeal from the United States District Court for the Western District of Pennsylvania; D.C. Civil No. 89-01628.

Becker, Hutchinson and Garth, Circuit Judges.

Author: Becker


BECKER, Circuit Judge

This is an appeal by plaintiffs, Terry and Jeni Patterson, from a grant of summary judgment in favor of the defendants, American Bosch Corporation ("American Bosch") and United Technology Diesel Systems ("United Technology"), in a personal injury action instituted in Pennsylvania state court (and governed by Pennsylvania law) and removed to federal court on grounds of diversity of citizenship. The plaintiffs challenge the district court's conclusion that the filing of a praecipe for a writ of summons did not toll the statute of limitations because plaintiffs' former counsel, after making two unsuccessful attempts at service, made no further service attempts for the next seventeen months. Because the plaintiffs' present counsel did not serve the defendants until after the expiration of the applicable statutes of limitations, the district court held that the complaint was time-barred. In essence, the appeal requires us to interpret the scope of the Pennsylvania Supreme Court's opinion in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), which held 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 he has just set in motion." Id. at 478, 366 A.2d at 889.

The district court agreed with defendants that Lamp imposed upon plaintiffs an ongoing good-faith obligation to effect service of process. Thus, the court concluded that counsel's failure to pursue service of process nullified the tolling effect normally given to the filing of a praecipe for a writ of summons. However, given the words so carefully chosen by the Pennsylvania Supreme Court to dispose of Lamp, and what we perceive to be the narrow issue addressed in that case -- the continued viability of the venerable, though discredited, practice among Pennsylvania attorneys of commencing an action by filing a praecipe, but then delaying or preventing service of process upon the defendant so that a settlement could be effected without incurring extensive legal fees -- we are not inclined, as a federal court sitting in diversity, to construe the court's opinion so broadly. Rather, we believe that the plaintiffs' two good-faith efforts to serve the writ were sufficient under Lamp to toll the applicable statute of limitations, so that the complaint was timely filed. We will therefore reverse and remand for further proceedings.


On December 4, 1986, Terry Patterson was injured at his workplace in an accident involving a hydraulic cranking system that was allegedly manufactured and sold by American Bosch and United Technology. The plaintiffs allege that Mr. Patterson's employer purchased this device on or about January 1, 1984.

On August 31, 1987, the Pattersons' former attorney filed a praecipe for a writ of summons with the prothonotary of the Court of Common Pleas of Allegheny County. The attorney had previously been advised by the Corporation Bureau of the Pennsylvania Department of State that the Philadelphia office of the Corporation Trust Company was American Bosch's registered agent for service of process in the Commonwealth. On September 2, 1987, the attorney delivered the writ to the Allegheny County Sheriff's Office with instructions to serve American Bosch "c/o C.T. Systems" at an address in Pittsburgh.*fn1 The attorney noted that "other defendants will be served by certified mail as they are out-of-state defendants." The sheriff returned the writ on September 8, 1987 with a notation that American Bosch was not found at the address supplied.

On October 15, 1987, the plaintiffs' attorney filed a praecipe for reissuance of the writ. On October 19, 1987, the attorney again delivered the writ to the sheriff, this time with instructions to deputize the Philadelphia sheriff to serve both defendants at the Corporation Trust Company's office in Philadelphia. On November 5, 1987, the Philadelphia sheriff returned the writ with the notation "CT not agents for def[endan]ts."

The attorney made no further efforts to serve the defendants for the next seventeen months.*fn2 On May 1, 1989, the plaintiffs engaged new counsel, who filed a praecipe for reissuance of the writ of summons the next day. On May 5, 1989, this attorney served United Technology by certified mail in Springfield, Massachusetts. On May 26, 1989, he served American Bosch by certified mail in Dearborn, Michigan.*fn3

The plaintiffs then filed a complaint that pleaded personal injury claims under negligence, strict liability, and breach of warranty theories.*fn4 The statute of limitations governing the plaintiffs' negligence and strict liability claims, 42 Pa. Cons. Stat. Ann. § 5524 (Purdon Supp. 1989), ran on December 4, 1988, two years after Mr. Patterson's injury. The statute of limitations on the plaintiffs' breach of warranty claim, 13 Pa. Cons. Stat. Ann. § 2725 (Purdon 1984), expired on January 1, 1988, four years after Mr. Patterson employer allegedly purchased the hydraulic starter and cranking system from the defendants or their agents. Thus, unless these statutes were previously tolled, the plaintiffs' claims were time-barred when the plaintiffs' new counsel served the defendants in May of 1989.

On August 4, 1989, the defendants removed the case to federal district court and moved to dismiss the complaint as barred by the statutes of limitations. The district court converted the motion into a motion for summary judgment and granted it on December 11, 1989. The court found that the plaintiffs' first two service attempts were in good faith. However, the court held that the plaintiffs' subsequent failure to pursue service of process nullified the tolling effect of the filing of the praecipes in August and October of 1987. This appeal followed.


As a federal court sitting in diversity, we look to state law to determine when an action is commenced for purposes of the state's statute of limitations. Walker v. Armco Steel Corp., 446 U.S. 740, 752-53, 64 L. Ed. 2d 659, 100 S. Ct. 1978 (1980). Our review of the district court's interpretation of state law is plenary. Compagnie des Bauxites de Guinee v. Insurance Co. of North America, 724 F.2d 369, 371 (3d Cir. 1983).

This appeal requires us to determine whether the plaintiffs' two attempts to serve the writ of summons upon the defendants in 1987 were sufficient to toll the statutes of limitations, or whether the plaintiffs were further obliged to undertake ongoing good-faith efforts to effectuate service. To resolve this issue, it is necessary to review the background, holding and progeny of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), the seminal Pennsylvania Supreme Court decision on a plaintiff's service of process obligations when actions are instituted by summons.

A. The Pennsylvania Procedural Rule

Rule 1007(1) of the Pennsylvania Rules of Civil Procedure provides that an action may be commenced by filing with the prothonotary a praecipe for a writ of summons,*fn5 "irrespective of whether the prothonotary issues the writ or the sheriff serves it." Salay v. Braun, 427 Pa. 480, 484, 235 A.2d 368, 371 (1967). The writ of summons may be served within the Commonwealth within thirty days of issuance. Pa. R. Civ. P. 401(a). However, Pa. R. Civ. P. 401(b)(2) provides that "[a] writ may be reissued . . . at any time and any number of times." The Pennsylvania Supreme Court has construed this provision to mean that a writ may be reissued any time within an "equivalent period," i.e., a period "which, measured from the date of original issuance of the writ, or the date of a subsequent reissuance thereof, is not longer than the period of time required by the applicable statute of limitations for the bringing of the action." Zarlinsky v. Laudenslager, 402 Pa. 290, 295, 167 A.2d 317, 320 (1961); see Note, The Zarlinsky Rule: A Judicial Period of Limitations, 34 U. Pitt. L. Rev. 625, 626-29 (1973). Furthermore, each valid reissuance of the writ initiates a new equivalent period during which the writ may again be reissued. Lamp, 469 Pa. at 471, 366 A.2d at 885; Goodrich-Amram, Standard Pennsylvania Practice 2d, § 13.149 (1981).

B. Lamp and its Progeny

Over the years, the Commonwealth's relatively liberal rules for commencing an action gave rise to an informal practice among plaintiffs' attorneys in Pennsylvania of effectively tolling the statute of limitations by filing a praecipe, but then delaying service of process in order to give an attorney additional time to engage in settlement discussions with the defendant who was, in the absence of service of process, not obliged to incur the expense of retaining counsel. Depending on the local practice, attorneys would accomplish this delay by directing the prothonotary or the sheriff to hold the writ, by personally retaining the writ and not delivering it to the sheriff for service, or by failing to pay the service fee.*fn6

The Pennsylvania Supreme Court condemned this practice in Lamp. The plaintiff's attorney in that case had filed a praecipe on August 28, 1969, two days before the expiration of the two-year statute of limitations on his client's personal injury claim. The attorney instructed the prothonotary to issue the writ of summons, but not deliver the writ to the sheriff for service. Thus, the writ expired, unserved, after one month. On April 9, 1970, the attorney filed a praecipe for reissuance of the writ and again the writ was not served. On June 4, 1970, the attorney filed a third praecipe, and the defendants were served shortly thereafter -- almost three years after the plaintiff's injury, but within two years of the filing of the first praecipe.

The court concluded that

there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and ...

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