Harrigan, K. v. Forsythe, K.

J-A23039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KATHERINE HARRIGAN, : IN THE SUPERIOR COURT OF

ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA

JOSHUA C. BULLOCK :

:

Appellant :

:

v. :

:

KIRSTEN FORSYTHE, SCOTT MASSEY : No. 1421 MDA 2021

AND OM MEDICAL GROUP, P.C. T/A :

RED LION PAIN & PRIMARY CARE

Appeal from the Order Entered October 22, 2021

In the Court of Common Pleas of York County Civil Division at No(s):

2021-SU-000053

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY McCAFFERY, J.: FILED JUNE 30, 2023

Katherine Harrigan (Appellant), administratrix of the Estate of Joshua

C. Bullock (Decedent), appeals from the order entered in the Court of Common

Pleas of York County sustaining the preliminary objections filed by Kirsten

Forsythe, Scott Massey, and OM Medical Group, P.C. t/a Red Lion Pain &

Primary (collectively, Appellees), and dismissing Appellant’s claims against

them in their entirety. Appellant contends the trial court erred in finding that

she failed to properly serve Appellees in a timely manner, and therefore, it

lacked personal jurisdiction pursuant to Pennsylvania Rule of Civil Procedure

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* Former Justice specially assigned to the Superior Court.

J-A23039-22

1028(a)(1)1 to review the matter. Based on the following, we reverse the

court’s October 22, 2021, order and remand for further proceedings.

The relevant facts and procedural history are as follows:

[Appellant] was . . . appointed Administratix of the Estate

of Joshua C. Bullock [(Decedent)], pursuant to Letters of

Administration issued on May 15, 2020. [Appellant] is the Mother

of [D]ecedent.

[Appellee] Kristen Forsythe is an adult individual and

Certified Registered Nurse Practitioner (CRNP) who, at the time of

the events was an employee, agent, servant, partner, or

shareholder, actual or ostensible/apparent with one or more of the

other defendants (herein “[Appellee] Forsythe”). [Appellee] Scott

Massey, MD, is an adult individual and medical doctor who is an

employee, agent, servant, partner, or shareholder, actual or

ostensible/apparent with Defendant OM (herein “[Appellee]

Massey”). [Appellee] OM Medical Group, P.C. t/a Red Lion Pain &

Primary Care, is a Professional Corporation formed and organized

under the laws of the Commonwealth of Pennsylvania. The

corporation is engaged in the business of providing health care

services to the general public, and, at all times relevant to the

events of this case, maintained a principal place of business at

Red Lion Pain & Primary Care, 718 S. Main Street, Red Lion,

Pennsylvania 17356 (herein “[Appellee] OM”). [Appellant] is

asserting a professional liability claim and wrongful death cause

of action against [Appellees].

____________________________________________

1 Rule 1028 provides, in relevant part:

(a) Preliminary objections may be filed by any party to any

pleading and are limited to the following grounds:

(1) lack of jurisdiction over the subject matter of the action

or the person of the defendant, improper venue or improper

form or service of a writ of summons or a complaint[.]

Pa.R.C.P. 1028(a)(1) (emphasis added).

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[D]ecedent was born July 22, 1991 and was [27] years old

at the time of his death on January 16, 2019. Decedent was never

married and had no children.

Decedent first visited Red Lion Pain & Primary Care on

August 27, 2018, complaining of right knee pain. He was seen by

[Appellee] Forsythe who determined he had “right progressive

Osgood Schlatter’s disease with tibial bone/ligament separation”

and “left medical tibial plateau fracture.” [Appellee] Forsythe

prescribed [five milligrams two times per] day of Oxycodone to be

taken orally and [ten milligrams two times per] day of Oxycontin

also to be taken orally. Decedent’s total medication was equal to

45 MME/day.[2] It is alleged that [a] dosage above 90 MME/day

is associated with an increased risk of harm, including death.

[Appellee] Massey reviewed [D]ecedent’s case on September 1,

2018, and agreed with [Appellee] Forsythe’s assessment,

findings, and plan.

Over the course of the next few months, . . . Decedent’s

medication was adjusted multiple times, and at each stage of the

change in medication [Appellee] Forsythe submitted the

medication change and [Appellee] Massey reviewed and agreed

with the assessment. One of the changes involved replacing

Oxycontin with Fentanyl transdermal patches.

On January 8, 2019, [D]ecedent’s medication was changed

to substitute Dilaudid for Oxymorphone [five milligrams two times

per] day and the Fentanyl prescription remained the same. This

changed prescription kept [D]ecedent’s opioid levels above 120

MME/day. The decedent died on January 16, 2019, eight days

after his last visit to Red Lion Pain & Primary Care. The cause of

death was determined to be “acute fentanyl toxicity.” . . .

Trial Ct. Op., 8/3/21, at 1-4 (some paragraph breaks added).

On January 12, 2021, Appellant filed a complaint against Appellees,

asserting negligence and professional liability claims, as well as a wrongful

____________________________________________

2“MME” stands for “morphine milligram equivalents[.]” Complaint, 1/12/21,

at 3.

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death cause of action. On February 2, 2021, Appellant filed a motion for the

admission of Ray M. Shepard, Esquire as additional counsel pro hac vice.3

Three days later, the court granted Appellant’s motion concerning Attorney

Shepard. See Order, 2/5/21. The certified docket entries include a notation

that the York County Prothonotary’s Office provided notice of the trial court’s

order pursuant to Pennsylvania Rule of Civil Procedure 236 that same day.

During this time, counsel for Appellee Massey entered his appearance in

the matter. See Praecipe to Enter Appearance, 4/12/21.

On April 15, 2021, Appellant filed three notarized affidavits of service.

With respect to Appellee Massey, Appellant filed a notarized affidavit of service

wherein Richard William DeLauder, a process server, indicated that “on April

5, 2021, at 1:03 p.m.,” he served, inter alia, Appellant’s complaint “to hand.”

DeLauder Affidavit of Service, 4/15/21, at 1 (unpaginated; emphasis omitted).

The affidavit of service further indicated that the documents were delivered to

Appellee Massey in the following manner: “Sub-Served, Victoria Wynegar,

Office Assistant.” Id. As for Appellee Forysthe, Appellant filed a notarized

affidavit of service wherein Steven M. Silver, who is a process server, indicated

he “served upon Kristen Forsythe P/K/A Kirsten Forsythe . . . on the 11th day

____________________________________________

3 Attorney Shepard is a licensed attorney in Maryland. See Appellant’s Motion

for Admission Pro Hac Vice of Ray M. Shepard, 2/2/21, at 2. He, along with

Elizabeth Reeves, Esquire, who has a law office in York, Pennsylvania, have

represented Appellant throughout this matter.

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of April, 2021, at [ ] Plank Road, Stewartstown, Pennsylvania 17363 at 11:45

a.m. [by] delivering and leaving with the person served [inter alia, the

complaint].” Silver Affidavit of Service, 4/15/21, at 1 (unpaginated). Lastly,

with regard to Appellee OM, Appellant filed a notarized affidavit of service

wherein Roger Metzgar, a process server, indicated he received the complaint

to be served on “OM Medical Group, P.C., United States Corporation Agents,

Inc., [ ] Tilghman Street, Rear, Allentown, PA 18109.” Metzgar Affidavit of

Service, 4/15/21, at 1 (unpaginated). He indicated that, on April 2, 2021, at

1:17 p.m., he “substitute served by delivery a true copy [of the documents]

to Cory Douglas as Operations Manager, a person employed therein and

authorized to accept service for OM Medical Group, P.C. at . . . the within

person’s usual place of Work[.]” Id. (some emphasis omitted).

On April 20, 2021, Appellee Massey filed preliminary objections to

Appellant’s complaint for improper service and lack of personal jurisdiction

pursuant to Rule 1028(a)(1). See Preliminary Objections of Appellee, Scott

Massey, M.D., to Appellant’s Complaint, 4/20/21, at 5. Appellee Massey

pointed out that Appellant filed her complaint on January 12, 2021, in relation

to the purported negligence that resulted in the death of Decedent on January

16, 2019. Id. He noted that the applicable statute of limitations is two years,4

____________________________________________

4See 42 Pa.C.S. § 5524(2) (“The following action[ ] and proceeding must be

commenced within two years . . . (2) [a]n action to recover damages for

(Footnote Continued Next Page)

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and Appellant “ha[d] neither effectuated proper service upon [Appellee]

Massey, nor ha[d] she exhibited the good-faith requirement to effectuate

service necessary to toll the applicable statute of limitations.” Id. at 4.

Appellee Massey alleged:

8. In this regard, the docket reflects that no actions were

taken on behalf of [Appellant] between the filing of the Complaint,

January 12, 2021, and April 15, 2021, to effectuate service in

accordance with the precise requirements of the Rules of Civil

Procedure, including, a request to the York County Sheriff for

Service, reinstatement of the Complaint and/or an affidavit of

non-service.

9. Instead, on April 15, 2021, [Appellant] filed an Affidavit

of Service indicating that [Appellee] Massey was served by a

private process server at [ ] Main Street, Red Lion, PA. . . .

10. In Pennsylvania, “original process shall be served within

the Commonwealth only by the sheriff.” Pa.R.C.P. 400(a). There

is absolutely no exception to this long standing procedural

mandate for service within the Commonwealth absent prior Court

Order.

11. Consequently, as [Appellee] Massey is a private citizen

residing in this Commonwealth, service by a private process

server is legally improper and ineffective.

Id. at 5-6 (record citation & emphases omitted). Appellee also complained

that Appellant “failed to take necessary actions to toll the statute of limitations

in order to effectuate proper service as [Appellant] has continually failed to

reinstate the [c]omplaint.” Id. at 7. He further stated that “actual notice

____________________________________________

injuries to the person or for the death of an individual caused by the wrongful

act or neglect or unlawful violence or negligence of another.”).

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cannot be established as the improper [a]ffidavit of [s]ervice confirms that

actual notice was not provided until, at the earliest, April 2, 2021,

approximately [three] months after the expiration of the applicable statute of

limitations.” Id.

On May 10, 2021, Appellant filed a motion in opposition to Appellee

Massey’s preliminary objections. She alleged that Appellee Massey “received

actual notice of commencement of the action against him in February 2021,

and within [30] days of the [c]omplaint being filed, when the Prothonotary

mailed a copy of the [o]rder admitting [Attorney] Shepard into the case pro

hac vice to him on February 5, 2021.” Appellant’s Opposition to Appellee

Massey’s Preliminary Objections to Appellant’s Complaint, 5/10/21, at 5.

One day later, Appellee Forsythe filed preliminary objections to

Appellant’s complaint, alleging similar arguments to those presented by

Appellee Massey. Appellant filed an opposition to Forsythe’s preliminary

objections.

During this time, on April 28, 2021, Appellant filed a praecipe to

reinstate the original complaint. Less than three weeks later, Appellant filed

returns of service from the sheriff, indicating the following: (1) on May 4,

2021, a sheriff handed a copy of the complaint to Jessica Blackwell, a medical

assistant, who accepted as “adult person in charge” for Appellee Massey at

Red Lion Pain & Primary Care; (2) also, on May 4, 2021, a sheriff personally

handed a copy of the complaint to a person representing themselves to be

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Appellee Forsythe at the Plank Road address; and (c) two days later, a sheriff

served Cory Douglas, who accepted for Appellee OM at Red Lion Pain &

Primary Care. See Sheriff’s Return of Service, 5/17/21, at 1 (unpaginated).

On August 3, 2021, the trial court sustained Appellee Massey’s

preliminary objections and dismissed Appellant’s claims against him.5 Ten

days later, the court also sustained Appellee Forsythe’s preliminary objections

and dismissed Appellant’s claims against her.6

Subsequently, on September 2, 2021, Appellant filed a praecipe for the

entry of a default judgment against Appellee OM on the basis of its failure to

enter an appearance or respond to the complaint. Eight days later, Appellee

OM filed a petition to open the default judgment, and on September 15th, the

trial court granted the petition to open and vacated the default judgment

entered against Appellee OM.

Like Appellees Massey and Forsythe, Appellee OM then filed preliminary

objections on October 1, 2021, asserting improper service and lack of personal

____________________________________________

5 That same day, the trial court filed a memorandum opinion, explaining its

rationale for sustaining preliminary objections.

6 On August 17, 2021, Appellant filed a petition seeking to have the August 3,

2021, order deemed final and appealable pursuant to Pa.R.A.P. 341(c). The

trial court granted the petition seven days later. On September 1, 2021,

Appellant filed a notice of appeal to this Court, which was docketed at Docket

No. 1168 MDA 2021. However, Appellant subsequently filed a praecipe to

voluntarily discontinue the appeal, and on that same date, we marked the

appeal as discontinued.

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jurisdiction. Appellant filed a response thereafter. On October 22, 2021, the

trial court sustained Appellee OM’s preliminary objections and dismissed

Appellant’s claims against Appellee OM.7

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7 We note that “[w]hether an order is appealable is a jurisdictional question.

An appeal lies only from a final order, unless permitted by rule or statute.”

Stewart v. Foxworth, 65 A.3d 468, 470-71 (Pa. Super. 2013) (citations

omitted). See also Pa.R.A.P. 341(b)(1) (providing that a final order is any

order that disposes of all claims and of all parties). However, an order

dismissing a complaint without prejudice is generally considered interlocutory.

See Mier v. Stewart, 683 A.2d 930, 930 (Pa. Super. 1996) (“For finality to

occur, the trial court must dismiss with prejudice the complaint in full.”).

In the case sub judice, the trial court sustained the three Appellees’

preliminary objections and dismissed all of Appellant’s claims against them for

lack of service and personal jurisdiction. While the trial court’s orders omitted

the phrase “with prejudice,” the trial court did not grant Appellant leave to

amend her complaint or indicate the order was “without prejudice.”

“[T]o determine whether finality is achieved, we must consider whether

the practical ramification of the order will be to dispose of the case, making

review appropriate.” Fastuca v. L.W. Molnar & Associates, 950 A.2d 980,

986 (Pa. Super. 2008) (citations & internal quotation marks omitted). See

also Liberty Bank v. Ruder, 587 A.2d 761, 763 (Pa. Super. 1991) (“Rather

than be bound by a hard and fast rule, we have repeatedly found that certain

orders which have not put a litigant ‘out of court’ or completely terminated

the litigation have nevertheless been held to possess sufficient aspects of

finality to be appealable because the effect of the order has been to preclude

the litigant from presenting her claim.”) (citation & some quotation marks

omitted); West v. West, 446 A.2d 1342, 1342 (Pa. Super. 1982) (“The

finality of an order is a judicial conclusion which can be reached only after an

examination of its ramifications. If the practical effect of an order is to put an

appellant out of court by precluding him from presenting the merits of his

claim, the order is appealable.”) (citations & internal quotation marks

omitted).

Because the practical ramification of the trial court’s October 22nd order

was to place Appellant out of court and preclude her from presenting the

merits of her claims as to all three Appellees, we conclude the order is final

(Footnote Continued Next Page)

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Appellant filed this timely appeal.8 The trial court ordered Appellant to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

to which she timely complied. The trial court issued its Pa.R.A.P. 1925(a)

opinion, explaining that it would be incorporating its August 3, 2021, opinion.

Appellant raises the following issues for our review:

(1) May a timely-filed complaint be dismissed for lack of personal

jurisdiction over the defendant when there is unrebutted evidence

the defendant received actual notice of commencement of the

lawsuit against him or her within [30] days of the filing of the

complaint, but which notice is not the result of service of process

strictly in compliance with the rules of civil procedure?

(2) Did the evidence before the Court of Common Pleas raise a

factual dispute regarding [Appellees’] actual notice of the

commencement of the lawsuit against them such that the case

was not “free and clear of doubt” where the evidence before the

court showed: (a) the Office of the Prothonotary mailed copies of

the Order admitting [Appellant’s] counsel pro hac vice in three

separate envelopes to each [Appellee] at “718 S. Main Street, Red

Lion, PA 17356;” (b) [Appellees] admit “718 S. Main Street, Red

Lion, PA 17356” is a correct address; (c) each envelope was date-

stamped by the Prothonotary showing the date mailed; (d) none

of the envelopes addressed to [Appellees] were returned to the

Prothonotary as undeliverable; and (e) a copy of the same Order

mailed to [Appellant’s] Pennsylvania counsel in York, Pennsylvania

____________________________________________

and appealable. See Jones v. McGreevy, 270 A.3d 1, 9 n.12 (Pa. Super.

2022), appeal denied, 48 WAL 2022 (Pa. Jun. 22, 2022)

8 The trial court entered three separate orders sustaining the preliminary

objections of each Appellee individually. Appellant filed a single notice of

appeal. We discern no error in this regard. See Fulano v. Fanjul Corp., 236

A.3d 1, 8 (Pa. Super. 2020) (concluding plaintiff properly filed a single notice

of appeal from separate orders sustaining the defendants’ preliminary

objections after the plaintiff corrected waited until all defendants had been

dismissed in case).

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was returned to the Prothonotary as undeliverable?

(3) Was the Court of Common Pleas required to take evidence or

hold a hearing on the issue of [Appellees’] actual notice of the

commencement of the lawsuit against them where the evidence

before the court showed: (a) the Office of the Prothonotary mailed

copies of the Order admitting [Appellant]’s counsel pro hac vice in

three separate envelopes to each [Appellee] at “718 S. Main

Street, Red Lion, PA 17356;” (b) [Appellees] admit “718 S. Main

Street, Red Lion, PA 17356” is a correct address; (c) each

envelope was date-stamped by the Prothonotary showing the date

mailed; (d) none of the envelopes addressed to [Appellees] were

returned to the Prothonotary as undeliverable; and (e) a copy of

the same Order mailed to [Appellant]’s Pennsylvania counsel in

York, Pennsylvania was returned to the Prothonotary as

undeliverable?

(4) Did the Common Pleas Court commit an error of law or an

abuse of discretion when it failed to apply well-settled

Pennsylvania law known as the “mailbox rule,” under which proof

of mailing creates a rebuttable presumption of receipt of the

mailed item?

Appellant’s Brief at 5-7.

It merits mention that while Appellant identifies four different issues in

her statement of questions presented, she addresses them together in the

argument section of her brief. The crux of Appellant’s claims is that the trial

court erred in sustaining Appellees’ preliminary objections because it found

that although her complaint was timely filed ─ and there is evidence that

notice of the suit was mailed to each Appellee ─ the complaint was not properly

served upon Appellees in compliance with the Pennsylvania Rules of Civil

Procedure concerning service of process. See Appellant’s Brief at 18.

Moreover, she disagrees with the court’s determination that the proper legal

test, as forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), is limited to

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what action is taken by a plaintiff attempting service. See Appellant’s Brief

at 19. Appellant then points to McCreesh v. City of Philadelphia, 888 A.2d

664 (Pa. 2005), stating in that case:

[T]he [Pennsylvania Supreme] Court embraced “the logic of the

Leidich [v. Franklin, 575 A.2d 914 (Pa. Super. 1990),] line of

cases, which applying Lamp, would dismiss only those claims

where plaintiffs have demonstrated an intent to stall the judicial

machinery or where plaintiffs’ failure to comply with the Rules of

Civil Procedure has prejudiced defendant.”

Appellant’s Brief at 21, quoting McCreesh, 888 A.2d at 674. Appellant states

that under more recent case law, Gussom v. Teagle, 247 A.3d 1046 (Pa.

2021), the proper test is not limited to that single inquiry regarding a plaintiff’s

actions or failure to act, but “there must also be an absence of ‘evidence to

indicate that the defendant had actual notice of the commencement of the

action within the relevant time frame,’ regardless of the [p]laintiff’s

intentions.” Appellant’s Brief at 20. Furthermore, she suggests:

The holdings in Lamp, McCreesh, and Gussom demonstrate that

the critical inquiry when applying the Lamp Rule is whether the

defendants have received actual notice of commencement of the

action timely such that the policies underlying the statute of

limitations are not undermined, regardless of whether such notice

of commencement of the action arises from the [p]laintiff’s actions

or inaction.

Id. at 35 (citation & quotation marks omitted).

Applying these cases to the facts at issue, Appellant alleges that

pursuant to the mailbox rule, proof of mailing creates a rebuttable

presumption of receipt of a mailed item and here, it was “undisputed” that the

Prothonotary’s Office mailed the court’s February 5, 2021, order “in three

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separate envelopes to each [Appellee].” Appellant’s Brief at 37. She points

out that the order clearly put Appellees on “actual notice” of the

commencement of litigation with the case caption identifying the parties, a

case number, and an “indication of a requested ‘JURY TRIAL.” Id. at 37-38.

She also maintains that the Prothonotary’s Office “mailed copies” of the order

“to each [Appellee] pursuant to Pa.R.C.P. 236” and “[t]here is no evidence

that any of three letters addressed to the [Appellees] were ever returned as

undeliverable to” the Prothonotary. Id. at 38-39 (reproduced record citation

omitted). Appellant asserts Appellees never rebutted that presumption

concerning actual notice. Id. at 39-40. She concludes that the trial court

erred in its “singular focus on [her] actions to serve the complaint, rather than

on determining whether the policies underlying the statute of limitations were

undermined by a lack of actual notice of the lawsuit’s existence to” Appellees.

Id. at 41-42.

Our standard of review of an order sustaining preliminary objections is

well settled.

We are reviewing an order that sustained preliminary

objections to service of process and dismissed the action. In

conducting such review, our standard of review is de novo and our

scope of review is plenary. We must determine whether the trial

court committed an error of law.

When we review the trial court’s ruling on preliminary

objections, we apply the same standard as the trial court. In

deciding a preliminary objection for lack of personal jurisdiction

that, if sustained, would result in dismissal, the court must

consider the evidence in the light most favorable to the nonmoving

party. Where upholding the sustaining of preliminary objections

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results in dismissal of the action, we may do so only in cases that

are clear and free from doubt.

Sawyers v. Davis, 222 A.3d 1, 5 (Pa. Super. 2019) (citations & quotation

marks omitted).

Pennsylvania Rule of Civil Procedure 1007 provides that “[a]n action

may be commenced by filing with the prothonotary (1) a praecipe for a writ

of summons, or (2) a complaint.” Pa.R.C.P. 1007(1)-(2). “Thus, it has been

repeatedly held that, pursuant to this rule, the mere filing of a praecipe to

commence an action is sufficient to toll the running of the statute of

limitations.” Johnson v. Allgeier, 852 A.2d 1235, 1236-37 (Pa. Super.

2004) (citation & quotation marks omitted).

The Rules require a plaintiff to serve the defendant with original

process within 30 days after the issuance of a writ or the filing of

a complaint. Pa.R.C.P. 401(a). If the plaintiff does not effectuate

service within that time period, she can praecipe for reissuance of

the writ or reinstatement of the complaint. Pa.R.C.P. 401(b)(1).

So long as the plaintiff files her writ or complaint before the

expiration of the statute of limitations applicable to her cause of

action, the original filing, as well as any subsequent reissuances

or reinstatements, tolls the statute of limitations.

Gussom, 247 A.3d at 1047-48. Moreover, Pa.R.C.P. 400 designates who may

make service, while Pa.R.C.P. 402 provides for the manner of service.

In the seminal case of Lamp, supra, the Pennsylvania Supreme Court

determined:

[T]here 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. In addition, we find that such a

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rule is inconsistent with the policy underlying statutes of limitation

of avoiding stale claims, and with that underlying our court rules

of making the processes of justice as speedy and efficient as

possible. Accordingly, we believe that the rule must now be

qualified, but prospectively in fairness to plaintiffs who have relied

on the language of Rule 1007 and our previous interpretations of

it. Our purpose is to avoid the situation in which a plaintiff can

bring an action, but, by not making a good-faith effort to notify a

defendant, retain exclusive control over it for a period in excess

of that permitted by the statute of limitations.

Lamp, 366 A.2d at 888-89 (footnotes & citation omitted). The Court then

ruled that “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

(footnote omitted). “This ‘Lamp rule’ applies equally to actions commenced

by way of the filing of a complaint.” Gussom, 247 A.3d at 1048.

The Lamp rule was later refined by the Supreme Court in Farinacci v.

Beaver Cty. Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986), which stated:

“Lamp requires of plaintiffs a good-faith effort to effectuate notice of

commencement of the action.” Id. at 759.

In addition, Farinacci clarified that: (1) the plaintiff carries an

evidentiary burden of proving that she made a good-faith effort to

ensure that notice of the commencement of an action was served

on the defendant, and (2) [i]n each case, where noncompliance

with Lamp is alleged, the [trial] court must determine in its sound

discretion whether a good-faith effort to effectuate notice was

made[.]

Gussom, 247 A.3d at 1048 (citations & quotation marks omitted).

Subsequently, in Leidich, this Court espoused a more relaxed

interpretation of the rule:

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What is to be gleaned from Lamp and its progeny is that:

(1) one’s “good faith” effort to notify a defendant of the institution

of a lawsuit is to be assessed on a case-by-case basis; and (2) the

thrust of all inquiry is one of whether a plaintiff engaged in a

“course of conduct” forestalling the legal machinery put in motion

by his/her filings.

Leidich, 575 A.2d at 918 (citations omitted). The Leidich Court also stated:

“[W]e do not read Lamp, and the cases interpreting and applying it, to

espouse a mechanical approach to the ‘good faith’ effort rule such that it

allows for no exceptions in the face of an explanation and/or conduct which

evidences an unintended deviation from the ‘notice’ requirement.” Id.

(citations omitted).

In McCreesh, the Pennsylvania Supreme Court noted:

The Superior and Commonwealth Courts have struggled to

apply the Lamp-Farinacci rule, with some panels requiring

plaintiffs to comply strictly with the Rules of Civil Procedure related

to service of process and local practice in order to satisfy the good

faith requirement, see, e.g., Teamann v. Zafris, 811 A.2d 52,

63 (Pa. Cmwlth. 2002),[9] and other panels providing a more

flexible approach, excusing plaintiffs’ initial procedurally defective

service where the defendant has actual notice of the

commencement of litigation and is not otherwise prejudiced, see,

e.g., Leidich. . . .

McCreesh, 888 A.2d at 666 (footnote omitted). The McCreesh Court then

held it would “adopt the more flexible approach, concluding that it

____________________________________________

9 In Teamann, the Commonwealth Court required strict compliance with the

Pennsylvania Rules of Civil Procedure related to service of process and local

practice in order to satisfy good faith requirement. See Teamann, 811 A.2d

at 62-63.

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sufficiently protects defendants from defending against stale claims without

the draconian action of dismissing claims based on technical failings that do

not prejudice the defendant.” Id. (emphasis added).

In that case, the plaintiff filed a praecipe for a writ of summons “within

the applicable two-year statute of limitations.” McCreesh, 888 A.2d at 666

(footnote omitted). He then attempted to serve the lawsuit by delivering the

writ to the City of Philadelphia’s Law Department via certified mail. See id.

The parties agreed that the Law Department received notice when a

receptionist at the office signed for the package one day before the statute of

limitations ran. See id. The plaintiff then filed his negligence complaint

several months later. See id. Thereafter, the City filed preliminary

objections, complaining that delivery of the writ by certified mailed did not

comply with Rule 400.1,10 which required that original process be served by

either a sheriff or a competent adult, and that the complaint was not filed

within the two-year statute of limitations period. McCreesh, 888 A.2d at 667.

The trial court overruled the City’s preliminary objections. Id. The

Commonwealth Court rejected the plaintiff’s reliance on Leidich by stating

that compared to that case, the plaintiff “had not done anything to keep the

legal machinery in play between” the time he served the writ and when he

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10 Rule 400.1 sets forth the service of process requirements for the First

Judicial District, which is comprised of Philadelphia County.

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filed the complaint. Id. at 669 (citation & quotation marks omitted).

Moreover, the Commonwealth Court determined that the plaintiff’s attempt at

service “did not constitute a good faith effort to serve the defendant with

process under the Lamp rule because [the plaintiff]’s attempt at service did

not comply with relevant rules relating to service of process in Philadelphia

County.” Id. (citation omitted).

In reviewing the matter, the Supreme Court opined:

[W]e conclude that the rigid compliance requirement of the

Teamann line of cases is incompatible with the plain language of

Rule 401, the spirit of Lamp, and the admonition of Rule 126 to

construe liberally the rules of procedure so long as the deviation

does not affect the substantial rights of the parties. In Lamp, we

sought to alleviate the hardships caused by plaintiffs who

exploited the rules of civil procedure to make an end run around

the statutes of limitations.

Neither our cases nor our rules contemplate punishing a

plaintiff for technical missteps where he has satisfied the purpose

of the statute of limitations by supplying a defendant with actual

notice. Therefore, we embrace the logic of the Leidich line of

cases, which, applying Lamp, would dismiss only those claims

where plaintiffs have demonstrated an intent to stall the judicial

machinery or where plaintiffs’ failure to comply with the Rules of

Civil Procedure has prejudiced defendant.

McCreesh, 888 A.2d at 674 (footnote omitted). The Supreme Court then

reversed the Commonwealth Court’s decision, concluding that the plaintiff had

supplied the City with actual notice. Id. The Court remanded the matter for

the trial court to make a determination as to whether “the City suffered

prejudice as a result of the delay of proper service between” the date when

the plaintiff served the writ and when he filed the complaint. Id.

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Most recently, in Gussom, the Supreme Court again revisited Lamp,

McCreesh, and relevant precedent. In that case, the plaintiff attempted to

serve the defendant with her timely complaint but discovered the defendant

had moved to another state a year-and-a-half earlier. Gussom, 247 A.3d at

1049. After filing an affidavit of non-service, the plaintiff did not take any

further action until she filed a praecipe to reinstate the complaint one month

after the statute of limitations had expired. Id. A panel of this Court had

“affirmed [the] trial court order that dismissed [the] plaintiff’s complaint based

upon the plaintiff’s failure to serve timely her complaint upon the defendant

despite the fact that the plaintiff's actions did not amount to intentional

conduct.” Id. at 1048. The Supreme Court “granted allowance of appeal to

address whether the Superior Court’s decision conflicts with Lamp and its

progeny.” Id.

In affirming this Court’s decision, the Supreme Court held:

[A] trial court has the discretion to dismiss a complaint when a

plaintiff fails to offer proof that she diligently attempted to serve

process on a defendant in a timely manner and there is no

evidence to indicate that the defendant had actual notice of the

commencement of the action in the relevant time frame,

regardless of whether the plaintiff acted or failed to act

intentionally.

Id. The Court explained:

Although McCreesh made clear that a plaintiff could fulfill

her good-faith service mandate without strictly complying with the

service rules as long as her efforts resulted in actual notice of the

lawsuit to the defendant, like Farinacci, McCreesh did nothing

to modify a plaintiff’s duty to act diligently to serve notice of the

commencement of an action so as not to undermine the policies

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that drive the statute of limitations. Nor, for that matter, did

McCreesh change the rule clarified in Farinacci that the plaintiff

carries an evidentiary burden to prove that she made a good-faith

effort to effectuate service of process in a timely manner. To the

contrary, as observed throughout this opinion, the McCreesh

Court alluded to this evidentiary requirement. [McCreesh, 888

A.2d] at 672 (‘We subtly altered our holding in Lamp in

Farinacci, requiring plaintiffs to demonstrate ‘a good-faith effort

to effectuate notice of commencement of the action.’”).

In sum, Lamp and its progeny require a plaintiff to make a

good-faith effort in diligently and timely serving process on a

defendant. When a defendant presents a factual dispute as to

whether a plaintiff fulfilled this duty, the plaintiff carries an

evidentiary burden to demonstrate that she met her good-faith

mandate. If a plaintiff presents credible evidence that she made

this attempt at service, then she fulfills her requirement to prove

good faith. If a plaintiff does not present such evidence, then she

has failed to satisfy her evidentiary burden, regardless of whether

her actions (or inaction) were intentional, unintentional, or

otherwise. However, pursuant to McCreesh, a trial court should

not punish a plaintiff by dismissing her complaint where she is

able to establish that her improper but diligent attempts at service

resulted in the defendant receiving actual notice of the

commencement of the action, unless the plaintiff’s failure to serve

process properly evinced an intent to stall the judicial machinery

or otherwise prejudiced the defendant.

Id. at 1056-57.

In the case sub judice, the trial court examined the actions taken by

Appellant and made the following determination:

The [trial c]ourt finds that [Appellant] has failed to meet

[her] burden. First, [Appellant], inexplicitly, made absolutely no

effort to serve [Appellees] within the time constraints of the rules.

No reason was given as to why [she] did not make any attempt

to serve [Appellees] for several months thereafter. [Appellant]

was able to timely file the complaint despite a significant number

of issues that made it difficult to do so. To be clear, the preparing

and filing of the complaint was the difficult part. Once filed, all

[Appellant] needed to do was file a Request for Service and pay

the applicable fee to the Sheriff’s Department for service to occur.

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The failure to properly serve [Appellee] Massey could be

overlooked if, pursuant to Gussom, [Appellant]’s actions in

attempting to serve [Appellee Massey] resulted in actual notice to

[him]. [Appellant] points to the Prothonotary’s sending of [the

trial court]’s [o]rder admitting [Appellant]’s counsel pro hac vice

as evidence that [Appellee Massey] had actual notice of the

commencement of the action. The relevant inquiry is what action

was taken by [Appellant] to attempt service. In other words, it is

[Appellant’s] actions that are relevant, not the Prothonotary’s. . . .

Here, [Appellant] did absolutely nothing to serve [Appellees as to

the initial complaint until nearly three months later]. Therefore,

it is impossible for [Appellant] to argue that [her] attempts at

service [fulfilled the good-faith mandate] to [Appellees] when it is

undisputed that [she] made no attempt at all to serve [Appellees]

with a copy of the [c]omplaint within the applicable time period.

Moreover, [Appellant] has the burden to show that

[Appellee] Massey had “actual” knowledge of the commencement

of the action. The only evidence [Appellant] can point to is an

[o]rder by the [trial c]ourt appointing [Appellant]’s counsel pro

hac vice. The envelope containing the [o]rder lists all [Appellees’]

names and there is no proof that [Appellee] Massey ever

personally received it. It is [Appellant]’s burden to show

otherwise, and [she has] failed to do so.

Trial Ct. Op. at 8-9.

We disagree with the trial court’s conclusion. First, we reiterate that

pursuant to Pennsylvania Rule of Civil Procedure 126, we construe the rules

of court liberally.11 Second, we point out the courts of this Commonwealth

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11 Pennsylvania Rule of Civil Procedure 126 provides: “The rules shall be

liberally construed to secure the just, speedy and inexpensive determination

of every action or proceeding to which they are applicable. The court at every

stage of any such action or proceeding may disregard any error or defect of

procedure which does not affect the substantial rights of the parties.”

Pa.R.C.P. 126.

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have moved away from a “rigid compliance requirement” or a “mechanical

approach” to the “good faith” effort rule regarding a plaintiff’s duty to secure

service of notice. See McCreesh, 888 A.2d at 674; Leidich, 575 A.2d at

918. The Pennsylvania Supreme Court’s decision in Gussom reaffirmed that

notion, stating “[s]o long as the plaintiff files her writ or complaint before the

expiration of the statute of limitations applicable to her cause of action, the

original filing, as well as any subsequent reissuances or reinstatements, tolls

the statute of limitations.” Gussom, 247 A.3d at 1048. The Gussom Court

reinforced the principle that it is the plaintiff’s burden to demonstrate that she

made a good-faith effort to effectuate service. Id. Accordingly, this legal

authority is the lens through which we should review the present matter.

Furthermore, it should be emphasized that the purpose of the Rules of

Civil Procedure concerning service of process12 is simple — service puts a

defendant (or defendants) on notice of the imminent complaint and ensuing

litigation. See Pa.R.C.P. 400-405 (setting forth rules governing service).

Additionally, we note this is not a case where a plaintiff failed to take

action after receiving an affidavit of non-service like in Gussom. Rather, this

case is similar to the facts in McCreesh. Here, Appellant attempted to

comport with the notice of service requirement via multiple endeavors.

Appellant filed the complaint within the applicable two-year statute of

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12 See Pa.R.C.P. 400-430.

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limitations. She then provided operative notice when she filed the motion for

admission of Attorney Shepard as additional counsel pro hac vice, and the trial

court entered an order granting that motion on February 5, 2021. Indeed,

the February 5th order included a case caption identifying the parties as either

plaintiff or defendants, a civil docket number, and that the matter pertained

to a “JURY TRIAL.” Order, 2/5/21. Moreover, the certified docket entries

contain a notation indicating the Prothonotary provided notice of the trial

court’s February 5th order in accordance with Pa.R.C.P. 236 (rule governing

notice by prothonotary of entry of order or judgment).13

Appellant also provided actual, albeit defective, notice when she

employed private process servers, as opposed to a sheriff, to serve the

complaints on the three Appellees. Notably, Appellees do not allege that they

never received the complaints from the private process servers.14 As such, it

is undeniable that Appellees were put on notice of the impending lawsuit, and

therefore, they endured no unfair surprise or prejudice.

Accordingly, Appellant’s actions clearly conveyed her diligence and effort

to comply with the service requirement. See McCreesh, supra; Leidich,

supra. Likewise, there is no evidence that Appellant engaged in a course of

____________________________________________

13As Appellant points out, “[t]here is no evidence that any of three letters

addressed to the [Appellees] were ever returned as undeliverable to” the

Prothonotary. Appellant’s Brief at 38-39 (reproduced record citation omitted).

14 See Appellee Forsythe’s Brief at 5; Appellee Massey’s and OM’s Brief at 5.

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conduct to forestall the “legal machinery” that she set in motion after filing

her complaint. See Lamp, 366 A.2d at 889. We recognize that while there

was a three-month hiatus between her defective service and proper service,

it is evident Appellant was under the assumption the case was moving forward

based on the court’s February 5th order.

Turning now to the burden requirement as clarified in Gussom, the trial

court found that Appellant did not produce any evidence demonstrating that

she fulfilled her legal duty to make a good-faith effort to serve her complaint.

We disagree. We discern that it is obvious from the record that Appellant met

this burden as evinced by the actual and operative notices, and that no further

evidentiary support was needed to satisfy this burden.

Accordingly, we reverse the trial court’s decision to sustain Appellees’

preliminary objections with respect to Appellant’s improper service of the

complaint pursuant to Rule 1028(a)(1) and dismissing Appellant’s complaint.

We remand for further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judge Bowes joins the memorandum.

President Judge Emeritus Stevens files a dissenting memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/30/2023

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