I’ve Been Served With a Writ of Summons. Now What?

Pennsylvania’s Rule 1007(1) permits a plaintiff to commence a lawsuit by filing with the prothonotary a praecipe for writ of summons (writ). Many insurers and insureds are unfamiliar with this unique Pennsylvania process. A writ is a one-page piece of paper with the caption of the suit, the identity of the jurisdiction and the docket number. A plaintiff must serve a writ in accordance with the Pennsylvania Rules of Civil Procedure, which require service by the sheriff (with limited exception). See, Pa.R.C.P. No. 400. Once proper service is effectuated in a timely manner, the plaintiff has protected the statute of limitations. The plaintiff does not have to move forward with a lawsuit within any given period of time. If the defendant desires to move forward with the lawsuit, it must request the prothonotary to issue a rule to file a complaint and then serve the rule on the plaintiff or his or her attorney, if the plaintiff is represented by counsel.

Common questions posed when service of a writ is made are: What do I need to do and when? What does the plaintiff have to do and when? The answers are “nothing” and “never.” The plaintiff has protected the statute of limitations forever and does not have to do anything at all after serving the writ. The writ will not be dismissed for lack of activity any easier than a lawsuit initiated with a detailed complaint. A defendant is not prejudiced solely by a plaintiff’s failure to proceed with the writ. Pennsylvania precedent for dismissal of a lawsuit for lack of activity is prejudice. A defendant must show that it has been prejudiced by the plaintiff’s failure to move forward. Pennsylvania law defines prejudice as “any substantial diminution of a party’s ability to properly present its case at trial.” Metz Contracting, Inc. v. Riverwood Builders, Inc., 520 A.2d 891, 894 (Pa.Super. 1987); American Bank & Trust Co. v. Ritter, Todd & Haayen, 418 A.2d 408 (Pa.Super. 1980). Memory loss and the disappearance of witnesses and documents that prevent the reconstruction of a defense are prejudicial to defendants. Jacobs v. Halloran, 1710 A.2d 1098, 1102 (Pa. 1998). Substantial diminution of a defendant’s ability to present factual information in the event of a trial that has been brought about by plaintiff’s delay is, likewise, prejudicial. American Bank & Trust Co., 418 A.2d 4 at 410.

A defendant served with a writ must decide whether to serve a rule upon the plaintiff to file a complaint. The decision whether to move forward must take into account the risk that the plaintiff has fully investigated his or her claims and that, unless the plaintiff voluntarily provides information and documentation to the defense, the defendant will not be able to obtain it without serving discovery. The defendant who is unaware of a plaintiff’s claims and the evidence that the plaintiff may have in support could become significantly disadvantaged if it does not preserve evidence supporting the defense and/or if it does not contemporaneously investigate a claim. Witnesses’ memories may become stale, documents may not be preserved, and the plaintiff may have preserved information that the defense did not contemporaneously investigate. Litigation hold notices may not be issued and electronically stored information could be lost. A court might not sympathize with a defendant’s prejudice because the defendant always has the right to move forward with a lawsuit by serving the plaintiff with a rule to file complaint.

An insurer may investigate a claim by taking statements, but a statement will not be as thorough as testimony taken under oath. A statement will also lack the legal significance of testimony under oath taken in a deposition proceeding. For example, if a witness subsequently dies, cannot be subpoenaed or has moved more than 100 miles away from the jurisdiction, a deposition transcript may be used at trial as an admission. See, Pa.R.C.P. No. 4020. Statements not taken under oath cannot be used if the witness is unavailable for trial.

Another consideration in deciding whether to rule the plaintiff to file a complaint is that a plaintiff can choose to include in the complaint events that occurred subsequent to the filing of the writ. The defense may wish to limit a plaintiff’s ability to pile on claims that accrued prior to the filing of the writ.

Insurers are often served with a writ of summons that may protect a suit limitation clause at a time when the investigation of a claim may be incomplete and/or the insurer may still be negotiating the claim. It may be prudent to refrain from serving the insured a rule to file a complaint because filing a complaint is almost certain to bring a cause of action for bad faith in addition to a breach of contract claim. The insurer may wish to avoid the disadvantage of having to produce its work product before a final decision concerning the claim has been made, or the insurer may simply need additional time to negotiate the claim without having to turn over its work product.

An advantage of refraining from serving a rule to file a complaint is that the defendant or insurer will not have to bear the burden of defense costs. On the other hand, counsel can be engaged to move to serve subpoenas on third parties using the docket number on the writ.

A plaintiff who has served a writ may have every intention of proceeding with litigation and may soon serve pre-complaint discovery. Pre-complaint discovery is permissible under Rule 4003.8 of the Pennsylvania Rules of Civil Procedure. The discovery sought must be “material and necessary to the filing of the complaint,” and it must not “cause unreasonable annoyance, embarrassment, oppression, burden or expense to any person or party.” Under Rule 4003.8, “the court shall weigh the importance of the discovery request against the burdens imposed on any person or party from whom the discovery is sought.”

A defendant should almost always object to pre-complaint discovery because it must have notice of the detailed claims against it in order to appropriately narrow the scope of discovery and avoid a fishing expedition. A defendant may move for a protective order or assert other objections to pre-complaint discovery, whereupon the court will apply the standards set forth in Rule 4003.8 to determine what information the plaintiff actually needs to file a complaint that can be produced without significant burden to the defense.

The decision concerning whether to serve a plaintiff with a rule to file complaint must be made on a case-by-case basis. In the insurance context, the insurer may have good reason to refrain from moving forward with the litigation process as more time may be needed to complete its claim investigation and adjustment. Insureds may often agree with the need for more time and may have served the writ solely to protect the suit limitation clause. In the third party context, it may be prudent to continue to negotiate a claim without having to litigate. If a decision is made to refrain from serving a rule to file complaint, said decision should be reviewed on a periodic basis in order to avoid self-inflicted prejudice caused by the passage of time that could have been cured by serving the plaintiff with a rule to file complaint. A court will not likely fault a plaintiff for failing to move forward within any given period of time because a defendant served with a writ has the burden to move forward with the suit.

*Trish is a shareholder in our Pittsburgh, Pennsylvania office. She can be reached at 412.803.1151 or pamonahan@mdwcg.com@mdwcg.com.

_{Defense Digest, Vol. 24, No. 4, December 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}