J-S03014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RAYMOND RONK AND MELISSA                   :   IN THE SUPERIOR COURT OF
    BENSON                                     :        PENNSYLVANIA
                                               :
                     Appellants                :
                                               :
                v.                             :
                                               :
    JUDITH ISRAEL                              :
                                               :
                     Appellee                  :   No. 1099 WDA 2016

                       Appeal from the Order June 27, 2016
                  in the Court of Common Pleas of Blair County
                      Civil Division at No(s): 2013 GN 2650

BEFORE:      OLSON, SOLANO, and STRASSBURGER*, JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:
                                       FILED MARCH 17, 2017

        Although counsel for Appellants certainly did not do everything

possible to ensure service of process, the trial court erred in granting

summary judgment in this case. Thus, I respectfully dissent and offer the

following analysis.

        In McCreesh v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005),

our Supreme Court clarified the Lamp v. Heyman, 366 A.2d 382 (Pa. 1976)

line of cases and held that it is proper “to dismiss only those claims where

plaintiffs have demonstrated an intent to stall the judicial machinery or




____________________________________________




*
    Retired Senior Judge assigned to the Superior Court.
J-S03014-17


where plaintiffs’ failure to comply with the Rules of Civil Procedure has

prejudiced defendant.” (emphasis added).

        Instantly, the facts of this case do not support either conclusion.

While Appellants waited almost a full year before delivering the writ to the

sheriff for service, there is no evidence that this was done with “an intent to

stall   the   judicial   machinery.”   Id.   Additionally,   Appellee   has   not

demonstrated prejudice in this case, and she received actual notice of the

lawsuit on November 24, 2014 when she picked up the writ from the

sheriff’s office.

        Moreover, this case is distinguishable from the case relied upon by the

trial court and Majority, Englert v. Fazio Mechanical Services, Inc., 932

A.2d 122 (Pa. Super. 2007). In that case, the sheriff attempted, but did not

complete service in October 2003.        Counsel for Englert did not make any

effort to find out about this failed attempt until six months later, in March

2004. In the case at bar, counsel for Appellants did not demonstrate such

dilatory conduct.

        Based on the foregoing, the trial court erred in granting summary

judgment.




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