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Ferraro v. Patterson-Erie Corp., 2024 Pa. LEXIS 602 (S. Ct. April 25, 2024) (Donohue, J.).

The question presented in this appeal is whether the plaintiff met the good faith standard of diligent attempt at timely service of process on the defendant so that dismissal of her complaint was not warranted.

The plaintiff, Beverly Ferraro, slipped and fell in a Butler County Burger King on August 26, 2018. She originally filed a complaint against the defendant, Patterson-Erie Corporation D/B/A Burger King and Burger King Corporation (“Burger King”) on March 4, 2020, within the two-year statute of limitations for negligence actions established in 42 Pa.C.S. § 5524. Ferraro forwarded instructions and payment to the Sheriff to serve the complaint, but service was not effectuated. After the complaint lapsed and without its reinstatement, Ferraro arranged for a private process server to deliver the lapsed complaint to Burger King, which was accomplished. Eight months after the original filing of the complaint, and approximately two-and-a-half months after the two-year statute of limitations would have elapsed absent filing the original complaint, Ferraro reinstated the complaint and effectuated service of the complaint upon Burger King through the Sheriff. Burger King filed an answer, asserting as new matter that the action was barred by the statute of limitations. Burger King reasserted the issue in a motion for judgment on the pleadings, which the trial court denied. In an interlocutory appeal, the Superior Court affirmed.

We granted review to address whether the lower courts’ conclusions that Ferraro engaged in a good faith effort to properly serve Burger King such that she was excused from compliance with the Rules of Civil Procedure conflict with our precedent. Ferraro, 290 A.3d at 645.

More problematic has been the development of guidance for what constitutes acceptable practice for those cases where an action is commenced prior to the expiration of the statute of limitations but service of process is not effectuated until a point in time after the statute of limitations would have expired but for the tolling that occurred because a writ or complaint was filed. This is important because absent notice to the defendant that an action has been filed, the plaintiff effectively extends the statute of limitations by maintaining exclusive control over the lawsuit as a defendant cannot garner a defense to an unknown action.

The rules governing service of process are straightforward, but our case law shows that following their dictates is apparently less so. Although not totally smooth in development, and always with divided courts, we have rejected strict compliance with the Pennsylvania Rules of Civil Procedure related to service of process and settled on imposing on a plaintiff the standard of a good faith effort to effectuate service of process in the critical time frame.

Under the facts of this case, Ferraro failed to carry her initial burden of demonstrating that she made a good faith effort to diligently and timely serve process on Burger King. One effort of service of process prior to the date on which the statute of limitations would have expired and no further effort until over two months after the expiration date is the opposite of diligence in timely serving process on the defendant.

The only remaining question is whether Ferraro has established that her improper but diligent attempts at service resulted in Burger King receiving actual notice of the commencement of the action prior to the date on which the statute of limitations would otherwise have barred the lawsuit. Ferraro made one proper but unsuccessful attempt at service prior to the statute of limitations expiration date. Instead of reinstating the Complaint and again attempting service through the Sheriff or seeking leave of court to utilize an alternative method of service, Ferraro’s counsel opted to informally notify Burger King that a lawsuit was filed, having a private process service deliver to Burger King a copy of the original (unreinstated) Complaint. Ferraro’s counsel admittedly did not intend that the use of the process server would result in effective service of process. This was not technical non-compliance with the Rules of Civil Procedure because there was never an intent to comply with the Rules.

Ferraro’s counsel understood that the private process server could not effectuate service of process under the Rule.

When a plaintiff makes diligent but technically improper efforts to timely serve process whereby a defendant receives actual notice during the period of the statute of limitations that a lawsuit has been filed against it, the plaintiff will not be punished by dismissal of the complaint for technical non-compliance with the Rules of Civil Procedure. Gussom, 247 A.3d at 1057.

Short of abandoning service of process as the recognized manner in which notice of being sued in court is given, no other balance is feasible. Plaintiffs cannot opt out of the Rules to give notice of the commencement of a lawsuit by informal means. If attempts at service of process are optional for giving such notice, then no plaintiff would be required to rely on the service of process Rules to impart notice. Such a result removes the predictability of the Rules which require docketing of service and service attempts. Removing these formalities does not promote the just, speedy, or inexpensive determination of actions since notice to a defendant by methods at plaintiff’s option would foment additional litigation.

Applying Gussom, the decision of the Superior Court is reversed. Ferraro failed to meet her burden of demonstrating that she made a good faith effort in diligently and timely serving process on Burger King and thus, Burger King’s informal receipt of actual notice is irrelevant.

Chief Justice Todd and Justices Dougherty and Brobson join the opinion.

Justice Wecht files a dissenting opinion in which Justice Mundy joins.