facts prior to Hanna and the more searching analysis of Walker).
By contrast, in Hanna, where the Supreme Court was confronted for the first time with a case where the applicable Federal Rule was in direct collision with a state law, the Court sanctioned service of process upon the defendant's wife at his home, as permitted under Fed. R. Civ. P. 4(b), and did not require personal service upon the defendant as called for by a Massachusetts statute. Hanna exemplifies that scenario, therefore, where the Federal Rule: (1) was sufficiently broad to cover the issue, and (2) did not affront either the Enabling Act or the Constitution since it resulted "only in altering the way in which process was served" and did not alter "the mode of enforcement of state-created rights in a fashion sufficiently 'substantial' to raise the sort of equal protection problems to which the Erie opinion alluded." Hanna, 380 U.S. at 469.
Since Walker, which "laid to rest the notion that Rule 3 can ever be used to toll a state statute of limitations in a diversity case arising under state law," Converse v. General Motors Corp., 893 F.2d 513, 516 (2d Cir. 1990) (quoting Fischer v. Iowa Mold Tooling Co., 690 F.2d 155, 157 (8th Cir. 1982)), the Second Circuit has had just a few occasions to grapple with the Walker-Hanna dichotomy. Where service of process was considered by the state to be an integral part of its statute of limitations, the state rule was applied. See Diffley v. Allied-Signal, Inc., 921 F.2d 421 (2d Cir. 1990) (applying New York State statute to extend the one-year "window" for revived claims); Converse, 893 F.2d 513 (applying Connecticut law requiring actual service to commence an action); Personis v. Oiler, 889 F.2d 424 (2d Cir. 1989) (applying New York State statute authorizing delivery of process to the sheriff to obtain a 60-day extension of the statute of limitations).
Where the issue, however, did not center on the integrality of the state's service-of-process rule and its statute of limitations, but on the method of making service or whether service had been made, the federal rules were held to govern over competing state rules. See Datskow v. Teledyne Continental Motors Aircraft Prods., 899 F.2d 1298 (2d Cir.) (holding delivery of process to federal district court clerk the effective equivalent of delivery to state counterpart under New York State statute), cert. denied, 498 U.S. 854, 112 L. Ed. 2d 116, 111 S. Ct. 149 (1990); Morse v. Elmira Country Club, 752 F.2d 35 (2d Cir. 1984) (holding that a party may effectuate service by using the federal rule sanctioning service by mail).
In the present case, in order to determine the appropriate reach of New York's borrowing statute and the interplay of the Federal Rules' 120-day service provision, the Court must, accordingly, determine "what events serve to commence an action and to toll the statute of limitations" under Pennsylvania law. Personis, 889 F.2d at 426; see also Diffley, 921 F.2d at 423.
Unlike states such as Oklahoma (Walker), Kansas (Ragan) and Connecticut (Converse), requiring service of process to toll the statute of limitations, in Pennsylvania it is the commencement of the litigation by filing with the prothonotary either a complaint or a praecipe for a writ of summons, pursuant to Pa. R. Civ. P. 1007,
which is "sufficient to toll the running of the statute of limitations." See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882, 885 (Pa. 1976). Indeed, as noted by Pennsylvania's high court in Lamp, "the underlying purpose [of Rule 1007] has been to provide certainty as to the commencement of an action and to remove a subsequent failure to effect service from consideration in determining whether the statute of limitations has been tolled." Id. at 886.
Prior to Lamp, service of process could be delayed for an indeterminate period of time by the simple ministerial expedient of the reinstatement of the complaint or reissuance of the writ of summons "at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of the action." Id. at 885.
Moreover, "each valid reissuance gave rise to a new equivalent period during which the writ may again be reissued." Id. Thus, it was common practice in Pennsylvania "for attorneys to file a praecipe with the prothonotary to toll the statute of limitations but then, whether because settlement negotiations [were] in progress or because more time [was] needed to prepare the case, to delay or prevent service upon the defendant." Id. at 886. Significantly, "the remedy for a defendant prejudiced by the plaintiff's abuse of the rule was not in the statute of limitations, but in the non-pros doctrine" for unreasonably delaying the prosecution. Id. at 887.
In Lamp, the court decided to place limitations on this practice because it believed 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." Id. at 888. Accordingly, it held that henceforth "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 889.
In Patterson v. American Bosch Corp., 914 F.2d 384 (3d Cir. 1990), the Third Circuit collated all of the reported cases in which Lamp was applied to "nullify the tolling effect of the filing of a praecipe or a complaint" and found that nullification almost always occurred only because of the "plaintiffs' failure to comply with the procedure or local practice for service of process." Id. at 391. As referenced therein, these failures included such matters as the failure to provide service instructions or pay service fees. Therefore, the court reasoned that Lamp did not impose a broad service of process obligation:
In our view, the Lamp rule is satisfied once the plaintiff has complied in good faith with the procedural requirements and local practice for the issuance and service of a writ of summons. As long as the plaintiff files a praecipe for reissuance of the writ within the 'equivalent period,' we do not believe that Lamp dictates an additional affirmative duty to pursue service of process if the initial good-faith service attempt is unsuccessful.