London-Walker v. Walgreens Family of Companies, 2023 WL 6465387 (E.D. Pa. 2023)

The plaintiff, a customer of the defendant’s store, tripped and fell on a mat located in the store. The plaintiff commenced the case in state court pursuant to a writ of summons. However, the writ was never served on the defendant. Instead, a copy of the writ was emailed to the claims administrator for the defendant.

After five years of no activity, the state court entered a Notice of Proposed Termination. In response, the plaintiff filed a praecipe to re-issue the writ and then finally had the writ served on the defendant. After the complaint was filed, the defendant removed the matter to federal court. The defendant filed a motion to dismiss, arguing that the applicable statute of limitations period had expired prior to proper service of the writ. In ruling on the motion to dismiss, the court relied upon Pennsylvania law set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) and McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005).

The court held the plaintiff did not demonstrate that she acted in good faith or that she engaged in a good faith effort to diligently and timely serve the defendant. The court ruled that an email copy of the writ to the claims administrator for the defendant was not proper service under Pennsylvania law, nor did this qualify as a good faith attempt at service.

The court further held that there was no evidence that the defendant had actual notice of this action before the statutory period expired. The court found that, as the plaintiff failed to take any action until a Notice of Proposed Termination was issued, the plaintiff demonstrated a pattern of delay and inaction. As such, the court granted the defendant’s motion to dismiss.