Margaret Crow v. County of Washington

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-5364
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MARGARET CROW,
Appellant
v.
COUNTY OF WASHINGTON; WASHINGTON COUNTY CORRECTIONAL
FACILITY; WARDEN JOSEPH PELZER; C.O. (F.N.U.) HAMPTON;
C.O. (F.N.U.) PLUCKETT
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 04-cv-01855)
District Judge: The Honorable Terrence F. McVerry
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Submitted Under Third Circuit LAR 34.1(a)
May 16, 2007
Before: FISHER, NYGAARD, and ROTH, Circuit Judges.
(Filed June 21, 2007 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
The District Court dismissed Margaret Crow’s action against the Washington
County Corrections Facility and its staff because she failed to serve notice of the
commencement of her suit before the applicable statute of limitations expired. We will
affirm.
I.
Crow, while incarcerated at the Washington County Correctional Facility, fell and
injured her finger, because, she claims, the facility’s staff made her wear flip-flops that
were two sizes too large. She maintains she suffered a permanent injury to her finger
which limits her ability to engage in common household activities such as writing or
peeling potatoes.
On May 5, 2003, exactly two years after her fall, Crow’s counsel filed a praecipe
for a writ of summons in the Washington County Court of Common Pleas. Her counsel
made no effort to serve notice upon the appellees until July 2, 2004, when he filed a
praecipe to reissue the writ of summons. The appellees filed a rule to file complaint on
August 19, 2004. Crow then filed a complaint and demand for jury trial, claiming
violations of her constitutional rights pursuant to 42 U.S.C. §1983, and negligence under
Pennsylvania law. The defendants removed the case to the District Court, and eventually

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moved to dismiss the action because of Crow’s failure to serve the first writ of summons.
Magistrate Judge Lisa Pupo Lenihan issued a report and recommendation that the District
Court grant the appellees’ motion. The District Court adopted her recommendation and
dismissed the action. Crow filed a timely appeal.
II.
Pennsylvania law requires that a plaintiff commence a tort action and serve the
defendant with notice within two years of the underlying event. The appellees never
received notice of the commencement of the litigation until July, 2004, over three years
after Crow sustained her injury. Crow’s counsel maintains that he initially chose not to
serve them with the first writ of summons because he was unable to locate Crow, and his
professional responsibilities required him to confer with her before pursuing the matter
further. His duty when he filed the first praecipe was to comply with the law and serve
notice to the appellees. Instead, he made no attempt at all to serve the original writ.
Crow also contends that the District Court should have permitted her to perfect
service of process pursuant to 28 U.S.C. §1448. We disagree. Crow’s suit was time-
barred by Pennsylvania’s statute of limitations prior to removal. She cannot use §1448 to
resurrect it.
III.

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We conclude that Crow failed to make a good faith effort to serve notice in
compliance with the applicable statute of limitations. We will affirm the District Court’s
order.

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