Thursday, July 12, 2012

Proof of service - mailbox rule

Szymanski v. Dotey and Jenkins - Superior Court - July 11, 2012

The mailbox rule provides that “depositing in the post office a properly addressed, prepaid letter raises a natural presumption, founded in common experience, that it reached its destination by due course of mail.” Jenson v. McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893). As the Pennsylvania Supreme Court noted: “The overwhelming weight of statistics clearly indicates that letters properly mailed and deposited in the post office are received by the addressees.” Meierdierck v. Miller, 394 Pa. 484, 487, 147 A.2d 406, 408 (Pa. 1959). Thus, “[e]vidence that a letter has been mailed will ordinarily be sufficient to permit a jury to find that the letter was in fact received by the party to whom it was addressed.” Shafer v. A.I.T.S., Inc., 428 A.2d 152, 156 (Pa. Super. 1981).

However, “evidence of actual mailing is not required.” Commonwealth Dep’t of Transp. v. Brayman Constr. Corp., 513 A.2d 562, 566 (Pa. Commw. 1986). The Superior Court has held that “when a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Christie v. Open Pantry Food Marts Inc. of Delaware Valley, 352 A.2d 165, 166-67 (Pa. Super. 1975).

To trigger the presumption of receipt, “the party who is seeking the benefit of the presumption must adduce evidentiary proof that the letter was signed in the usual course of business and placed in the regular place of mailing.” Geise v. Nationwide Life & Annuity Co. of America, 939 A.2d 409, 423 (Pa. Super. 2007); Shafer, 428 A.2d at 156. “A presumption that a letter was received cannot be based on a presumption that the letter was mailed. A presumption cannot be based on a presumption.” Geise, 939 A.2d at 423. Documentary evidence of mailing or testimony from the author that a document was mailed may establish the presumption of receipt. See Grasse, 606 A.2d at 546 (holding appellees met burden of proof of mailing by producing certified driving record which included document showing notice was mailed); cf. Meierdierck, 394 Pa. at 487, 147 A.2d at 408 (holding that “[w]here the use of the mails as a means of acceptance is authorized or implied from the surrounding circumstances, the acceptance is complete by posting the letter in normal mail channels, without more.”).

In this case, the evidence did not establish that the relevant notice (setting a trial date) was mailed, or that it was prepared in the ordinary course of business and placed in the regular place of mailing. See Christie, 352 A.2d at 166- 67. The evidence was only that the court administrator was the author of the notice. But she did not testify that she placed the notice in her office’s usual place for outgoing mail, nor did she testify that she or any other employee mailed it via any method of mailing. Pursuant to Brayman and Christie, the testimony did not constitute competent evidence of mailing because she offered no testimony or evidence that she had placed the notice in the office’s regular place of mailing or on the custom as to the mailing of such notices. See Brayman, 513 A.2d at 566; Christie, 352 A.2d at 166-67.

The testimony also failed to conform to the rule set forth in Meierdierck, that introducing testimony that the notice was mailed suffices to establish the mailbox rule’s presumption of receipt. See Meierdierck, 394 Pa. at 487, 147 A.2d at 408. Although the witness testified that she was the author of the notice, she did not testify that the notice was mailed. Commonwealth v. Thomas, 814 A.2d 754 (Pa. Super. 2002).