J.   A18017/16

NON-PRECEDENTIAL DECISION              - SEE SUPERIOR COURT I.O.P.        65.37
FERNANDO MELENDEZ,                               IN THE SUPERIOR COURT OF
AS ADMINISTRATOR OF THE ESTATE             :           PENNSYLVANIA
OF DAMARIS REYES, DECEASED,

                          Appellant

                     v.

THE GOOD SAMARITAN HOSPITAL OF             :


LEBANON, PENNSYLVANIA;                                No. 1496 MDA 2015
LEBANON EMERGENCY PHYSICIANS;
THE GOOD SAMARITAN HOSPITAL


                  Appeal from the Order Entered August 3, 2015,
                 in the Court of Common Pleas of Lebanon County
                          Civil Division at No. 2014-01221


BEFORE:     FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 08, 2017

        Fernando Melendez, as Administrator of the Estate of Damaris Reyes,

Deceased, appeals the order of the Court of Common Pleas of Lebanon

County that granted the motion for judgment on the pleadings of The Good

Samaritan Hospital of Lebanon, Pennsylvania, and Lebanon Emergency

Physicians, and The Good Samaritan Hospital. We reverse.

        The facts as recounted by the trial court are as follows:

                    Damaris Reyes visited the emergency room at
              Good Samaritan Hospital on July 25, 2012 because
              she was experiencing vomiting, diarrhea, shortness
              of breath, headaches and back pain. About four

* Former Justice specially assigned to the Superior Court.
J.   A18017/16

             hours after arriving at the hospital, Ms. Reyes was
             pronounced dead.      According to [appellant], her
             death was a direct result of doctors' failure to timely
             recognize and treat septic shock, among other
             things.

                    On July 3, 2014, [appellant] filed a Complaint,
             accompanied by the required certificates of merit,
             alleging corporate negligence and vicarious liability
             seeking both wrongful death and survival damages
             against Good Samaritan Hospital and Lebanon
             Emergency Physicians (collectively [appellees]). The
             Complaint was returned to [appellant] on the same
             day for reasons unknown, and the following notation
             was entered on the docket: "ATTORNEY SERVICE,
             NOTATION FOR THE RECORD."

                    [Appellant] believes that one of its staff
             members mistakenly attempted service via a private
             process server.    During the period of time that
             [appellant] believed service was being attempted,
             the staff member left the employ of [appellant].
             When [appellant] became aware of [the] error, he
             reinstated the Complaint on August 6th; the Lebanon
             County Sheriff properly effectuated service on the
             11th.

                   [Appellees] seek judgment on the pleadings,
             arguing that [appellant's] claim is barred by the
             statute of limitations. [Appellant] acknowledges that
             service of the Complaint occurred beyond the
             deadline date. However, [appellant] believes that
             extenuating circumstances should be considered by
             this Court.

Trial court opinion, 8/4/15 at 2-3.

        By order dated August 3, 2015, the trial court granted the motion for

judgment on the pleadings.

        Appellant appealed to this court and raises the following issue for

review:


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            Whether the Trial Court erred in granting the
            [appellees'] Motion for Judgment on the Pleading
            [sic] on the basis of defective service where the
            [appellant] successfully effectuated service on
            [appellees] in accordance with the Rules of Civil
            Procedure and Lebanon County local practice
            thirty-nine (39) days after the original filing of the
            Complaint and within thirty (30) days of the
            expiration of the Statute of Limitations, and where
            [appellees] suffered no prejudice as a result of the
            nine (9) day delay in service?

Appellant's brief at 5.

                   [Appellate review of an order granting a
                   motion for judgment on the pleadings] is
                   plenary. The appellate court will apply
                   the same standard employed by the trial
                   court.    A trial court must confine its
                   consideration to the pleadings and
                   relevant documents.       The court must
                   accept as true        all   well  pleaded
                   statements of fact, admissions, and any
                   documents properly attached to the
                   pleadings presented by the party against
                   whom the motion is filed, considering
                   only those facts which were specifically
                   admitted. Further, the court may grant
                   judgment on the pleadings only where
                   the moving party's right to succeed is
                   certain and the case is so free from
                   doubt that trial would clearly be a
                   fruitless exercise.

            Steiner   v.   Bell of Pennsylvania, 426 Pa.Super. 84,
            87-88, 626 A.2d 584, 586 (1993). (Citations and
            footnote omitted). We must determine if the trial
            court's action was based on a clear error of law or
            whether there were facts disclosed by the pleadings
            which should properly go to the jury.     Kelly v.
            Nationwide Insurance Company, 414 Pa.Super.
            6, 10, 606 A.2d 470, 471 (1992).
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Kafando v. State Farm Mut. Auto. Ins. Co., 704 A.2d 675, 676
(Pa.Super. 1998).

        A     motion       for     judgment   on   the   pleadings   is   governed   by

Pa.R.C.P. 1034, which provides:

                (a)      After the pleadings are closed, but within such
                         time as not to delay the trial, any party may
                         move for judgment on the pleadings.

                (b)      The court shall enter such judgment or order
                         as shall be proper on the pleadings.

Pa.R.Civ.P. 1034(a -b).

        Initially, appellant contends that the trial court erred when it dismissed

the present action on the basis of defective service and the running of the

statute of limitations when appellant timely filed, reinstated, and served the

complaint in compliance with the statute of limitations and the Pennsylvania

Rules of Civil Procedure.

        As the parties agree, the statute of limitations for medical malpractice

and wrongful death actions in Pennsylvania is two years. See 42 Pa.C.S.A.

§    5524.     Damaris Reyes died on July 25, 2012.           According to appellant,

Reyes's death was caused by the negligent actions of appellees.               Appellant

filed   a   complaint on July 3, 2014, prior to the expiration of the statute of

limitations but did not serve appellees at that time.

                It    is well    settled in this Commonwealth pursuant to
                Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882
                (1976), and Farinacci v. Beaver County
                Industrial Development Authority,            510 Pa. 589,


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             511 A.2d 757 (1986), that service of original process
             completes the progression of events by which an
             action is commenced. Once an action is commenced
             by writ of summons or complaint the statute of
            limitations is tolled only if the plaintiff then makes a
            good faith effort to effectuate service. Moses v.
            T.N.T. Red Star Express, 725 A.2d 792
            (Pa.Super.1999), appeal denied, 559 Pa. 692, 739
            A.2d 1058 (1999). "What constitutes a 'good faith'
            effort to serve legal process is a matter to be
            assessed on a case by case basis." Id. at 796;
            Devine     v.   Hutt, 863 A.2d 1160, 1168
            (Pa.Super.2004) (citations omitted).       "[W]here
            noncompliance with Lamp is alleged, the court must
            determine in its sound discretion whether a
            good -faith effort to effectuate notice was made."
            Farinacci at 594, 511 A.2d at 759.
             In making such   a   determination, we have explained:

                  It   isnot necessary [that] the plaintiff's
                  conduct be such that it constitutes some
                  bad faith act or overt attempt to delay
                  before the rule of Lamp will apply.
                  Simple neglect and mistake to fulfill the
                  responsibility to see that requirements
                  for service are carried out may be
                  sufficient to bring the rule in Lamp to
                  bear. Thus, conduct that is unintentional
                  that works to delay the defendant's
                  notice of the action may constitute a lack
                  of good faith on the part of the plaintiff.

            Devine, supra at 1168 (quoting Rosenberg v.
            Nicholson, 408 Pa.Super. 502, 597 A.2d 145, 148
            (1991), appeal denied, 530 Pa. 633, 606 A.2d 903
            (1992)).   "[A]lthough there is no mechanical
            approach to be applied in determining what
            constitutes a good faith effort, it is the plaintiff's
            burden to demonstrate that his efforts were
            reasonable."   Bigansky v. Thomas Jefferson
            University Hospital, 442 Pa.Super. 69, 658 A.2d
            423, 433 (1995), appeal denied, 542 Pa. 655, 668
            A.2d 1119 (1995).


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Englert   v. Fazio Mech.        Services, Inc., 932 A.2d 122, 124-125 (Pa.Super.

2007), appeal denied, 938 A.2d 1053 (Pa. 2007).

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


plaintiff filed   a   writ of summons but served it by certified mail   in   violation of

the Pennsylvania Rules of Civil Procedure.              The plaintiff subsequently

reinstated the writ after the expiration of the statute of limitations and then

made proper service. The City of Philadelphia filed preliminary objections on

the basis that service of the original writ did not comply with the rules. The

Court of Common Pleas of Philadelphia County overruled the preliminary

objections. The Commonwealth Court reversed and remanded for dismissal

of the case.      Id.,   888 A.2d at 666-669.

        On appeal, the Supreme Court of Pennsylvania          formally adopted the

more flexible approach outlined by this court in Leidich v. Franklin, 575

A.2d 914 (Pa.Super. 1990), appeal denied, 584 A.2d 319 (Pa. 1990),[1]


1
  In Leidich, Virginia Leidich ("Leidich") suffered personal injuries on April 4,
1986, when her vehicle collided with another automobile owned by David
and Irene Franklin ("the Franklins"). On January 4, 1988, Leidich filed a
praecipe for the issuance of a writ of summons with the Dauphin County
prothonotary. Written on the back of the writ was "writ to atty. 1/4/87 RB."
The notation mistakenly identified the year as 1987 instead of 1988. The
writ was served upon the Franklins by first class mail dated January 5, 1988,
and was not served by the sheriff. Also, on January 5, 1988, the Franklins
were served with a notice to appear for a deposition on February 2, 1988.
The Franklins' attorney objected to the deposition, and the parties agreed to
postpone the deposition indefinitely. From March 15, 1988 through April 4,
1988, Leidich submitted medical bills to the Franklins' insurer with respect to
the possible settlement of the claim for the policy limits. Leidich, 575 A.2d
at 915.

                                           -6
J.   A18017/16

which allowed for the continued validity of the writ despite technical

non-compliance with the Rules so long as the defendant received actual

notice and was not prejudiced.        The McCreesh court rejected the strict

approach of cases such as Teamann v. Zafris, 811 A.2d 52 (Pa.Cmwlth.

2002), appeal denied, 830 A.2d 976 (Pa. 2003), which required rigid

compliance with the Rules in order to satisfy the Lamp test.      In so doing,

the court in McCreesh emphasized the purpose of Lamp, which was to

prevent plaintiffs from abusing      a    loophole in the Rules by repeatedly

reissuing the writ and stalling the litigation:




       When it became clear that the Franklins were contesting the case on
technical grounds of improper service, Leidich filed a praecipe to reissue the
writ on May 17, 1988. The writ was reissued, and the sheriff served the writ
on May 17, 1988. Leidich filed a complaint. The Franklins answered and in
new matter alleged that Leidich's claim was barred by the statute of
limitations and by Lamp. Id.

      The Court of Common Pleas of Dauphin County granted the Franklins'
motion for judgment on the pleadings on the basis that service by mail of
the initial writ was contrary to the Pennsylvania Rules of Civil Procedure,
local practice, and established case law. Id., 575 A.2d at 915-916.

       Leidich appealed to this court and argued that she complied with the
"good faith" requirement of Lamp in effectuating service of the writ of
summons by mail so as to toll the statute of limitations and render the suit
viable. Id., 575 A.2d at 916.

      This court reversed. This court reasoned that the defect in service did
not affect any substantial rights of the Franklins, the Franklins were not
prejudiced by the manner in which they received notice of the suit, and
there was no evidence that Leidich's attorney had acted to stall the
machinery of justice. Id., 575 A.2d at 919.

                                         -7
J.   A18017/16

               Upon review of these cases, we conclude that the
               rigid compliance requirement of the Teamann [v.
               Zafris, 811 A.2d 52 (Pa.Cmwlth. 2002), appeal
               denied, 830 A.2d 976 (Pa. 2003)] line of cases is
               incompatible with the plain language of Rule 401,[2]


2
     Rule 401 of the Pennsylvania Rules of Civil Procedure provides in pertinent
part:

Rule 401.       Time for Service. Reissuance, Reinstatement
               and Substitution of Original Process. Copies for
               Service

               (a)   Original process shall be served within
                     the Commonwealth within thirty days
                     after the issuance of the writ or the filing
                     of the complaint.

               (b)   (1)   If     service     within    the
                           Commonwealth is not made
                           within the time prescribed by
                           subdivision (a) of this rule or
                           outside the Commonwealth
                           within the time prescribed by
                           Rule 404, the prothonotary
                           upon     praecipe    and   upon
                           presentation of the original
                           process, shall continue its
                           validity by reissuing the writ or
                           reinstating the complaint, by
                           writing thereon "reissued" in
                           the    case    of a writ or
                           "reinstated" in the case of a
                           complaint.

                     (2)   A  writ may be reissued or a
                           complaint reinstated at any
                           time and any number of times.
                           A new party defendant may be
                           named in a reissued writ or a
                           reinstated complaint.



                                        _8
J.   A18017/16

            the   spirit of Lamp, and the admonition of
             Rule 126[3]  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 (emphasis added).


                  (4)      A    reissued,  reinstated    or
                           substituted writ or complaint
                           shall be served within the
                           applicable time prescribed by
                           subdivision (a) of this rule or
                           by Rule 404 after reissuance,
                           reinstatement or substitution.

Pa.R.C.P. 401.
3
             Rule 126.     Liberal Construction and Application
            of Rules
            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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J.   A18017/16

                As stated earlier, this Court in Lamp attempted to
                prevent plaintiffs from abusing the liberal rules of
                civil procedure which had been enacted originally to
                protect plaintiffs from being thrown out of court
                despite commencing an action within the applicable
                limitations period.     The cases requiring strict
                compliance hearken back to these draconian
                procedures and replace a factual good faith inquiry
                with an objective bright line standard of compliance
                that is wholly inconsistent with the concept of good
                faith.

Id.
        In Englert, this court decided that            a    good faith effort to effectuate

service was not made, pursuant to Lamp and McCreesh. John and Renee

Englert ("the Englerts") allegedly suffered injuries in an automobile accident

which occurred on March 25, 2002.           On September 19, 2003, the Englerts

filed   a   praecipe for   a   writ of summons against          C.J. Timko    ("Timko"), the

driver of the vehicle that hit them, and Fazio Mechanical Services, Inc.

("Fazio"), Timko's employer. The Englerts provided the sheriff's office with

an address for Fazio taken from the Greater Pittsburgh Telephone Directory.

Fazio had moved from this address on March 21, 2003.                         On October 23,

2003, the Allegheny County Sheriff's Department filed                  a   return of service,

which indicated that Fazio had moved to            a       different address and listed the

new address. The Englerts' counsel did not check the docket or contact the

sheriff's department to find out if the service of the writ of summons had

occurred. The Englerts' counsel waited for the sheriff's department to mail

the return of service. Englert, 932 A.2d at 123.



                                          - 10 -
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        The Englerts' counsel had moved his office on October 27, 2003, and

had problems receiving his mail.       By letter dated March 11, 2004, Timko and

Fazio's insurer asked whether John C. Englert was making               a   claim for his

injury and advised him that the statute of limitations ended on March 25,

2004, and that if he failed to make         a   claim by that date, he would be barred

from doing so. In March 2004, the Englerts' counsel received               a   copy of the

sheriff's return in the mail. On March 31, 2004, the Englerts' counsel filed            a


praecipe to reissue the writ of summons two years and six days after the

accident.   Id.,   932 A.2d at 124.

        Timko and Fazio moved for summary judgment and asserted that the

Englerts' claims were barred by the statute of limitations.                The Court of

Common Pleas of Allegheny County granted summary judgment.                            The

Englerts appealed to this court.      Id.
        This court affirmed:

              We    discern no abuse of discretion under the
              circumstances presented here, where [the Englerts]
              took no action whatsoever once the writ was issued
              to ascertain whether service was properly made and
              relied instead on counsel's customary practice of
              waiting for word from the Sheriff's office, no matter
              how long that might take and in spite of the
              difficulties he had experienced receiving his mail in a
              timely manner.        [The Englerts'] conduct clearly
              amounted to "neglect      .  to fulfill the responsibility
                                            .   .


              to see that requirements for service [were] carried
              out."      In other words, [the Englerts'] inaction
              demonstrated an intent to stall the judicial
              machinery which was put into motion by the filing of
              the initial writ and simply cannot be excused.
J.   A18017/16

Id.,    932 A.2d at 126-127 (citation and footnote omitted).

         Here, the trial court reasoned:

                     In this case, [appellant] failed to properly
               reinstate and serve a Civil Complaint within the time
               deadline established by a statute of limitations.
               [Appellant's] counsel candidly acknowledges that his
               office erred by failing to comply with the rules
               governing service of original process. Unfortunately
               for [appellant], his counsel's mistake is fatal to his
               claim; Rule 126 simply does not allow us to extend
               the statute of limitations and ignore the defects of
               service.



                      Though [appellant] commenced the action
               within the statute of limitations, service was not
               effected on [appellees] until August 11th, beyond the
               running of the statute. In the interim, the Complaint
               was not reinstated.[4] [Appellant] explained in his
               Brief that this failure was the result of a "clerical
               error"; he also confirmed this at the hearing. Under
               the rule of Lamp    .   . a clerical error would excuse
                                           .


               [appellant's] tardiness if it was due to the
               interference of a third party.             However, as
               [appellant's counsel] himself has admitted, the error
               was made by his own staff, whom he believes
               attempted to effectuate service through a private
               process server. While [appellant] has not shown an
               intent to stall the judicial machinery, neither has he
               shown any good faith efforts to timely effectuate
               service. The fact that the failure to do so was the
               result of [an] innocent mistake on [appellant's] part
               makes no difference.        We simply cannot excuse
               [appellant's] untimeliness because his failure to even
               attempt to comply cannot comprise a good faith
               attempt. Therefore, [appellant] cannot sustain his
               burden.



4    The complaint was, in fact, reinstated.

                                               - 12 -
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Trial court opinion, 8/4/15 at 1-2, 6.         This court cannot reconcile the trial

court's   determination    with     our    supreme     court's    pronouncement     in

McCreesh.

        Here, the statute of limitations expired on July 25, 2014.          Appellant

filed the complaint on July 3, 2014, well within the statute of limitations.

Appellant's counsel failed to direct the sheriff to serve appellees with the

complaint in accordance with the Pennsylvania Rules of Civil Procedure. As           a


result, service was not made within 30 days of the filing of the complaint.

However, when appellant or, in reality, appellant's counsel realized that

appellees had not been served with the complaint, appellant's counsel

quickly moved to reinstate the complaint on August 6, 2014, 12 days after

the expiration of the statute of limitations and only 4 days after the 30 -day

deadline for service of the original complaint.           August 6, 2014, was        a


Wednesday.        The sheriff served appellees by the following Monday on

August 11, 2014, only 39 days after the filing of the original complaint and

only 17 days after the passing of the statute of limitations.

        First, the filing of the complaint combined with the service of process

tolls the statute of limitations which in this case        is 2   years.   While it is

undisputed that service of the reinstated complaint was not made until after

the expiration of the statute of limitations, it was only made 17 days after

the expiration.    If appellant   had waited until the last day of the statute of

limitations period, July 25, 2014, to file the complaint, appellant would have



                                          - 13 -
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had 30 days from         that date, or until August 24, 2014, to make good service.

        Second, in McCreesh, the Pennsylvania Supreme Court rejected an

overly technical approach which required strict compliance with the rules in

order to satisfy the Lamp test.            In McCreesh, the Pennsylvania Supreme

Court followed the analysis espoused in Leidich and determined that the

court should dismiss complaints in cases where                 a   plaintiff has attempted to

stall the judicial machinery or where           a   plaintiff's failure to comply with the

Pennsylvania Rules of Civil Procedure has prejudiced the defendant.                     Here,

there clearly    is no   attempt to stall the judicial machinery. Further, given the

example outlined above concerning filing               a   complaint on the last day of the

statute of limitations period, it       is hard to see how          appellees are prejudiced

here. This court realizes that McCreesh refers to cases where actual notice

was given to the defendant that           a   complaint or action was forthcoming or

had been filed.          Here, nothing in the record indicates that appellees had

actual notice of the filing of the complaint though they did have notice of

potential    litigation    when     appellant requested            the   medical   records   of

Damaris Reyes.

        Third, this case is distinguishable from Englert in that, in Englert, the

Englerts provided the sheriff with the wrong address of Timko and Fazio.

Although the sheriff filed      a   return of service which indicated the new address

in   October 2003, the Englerts or their counsel failed to contact the sheriff's

office or check the docket to see if service had been made. Even though the



                                              - 14 -
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Englerts' counsel had moved his office and had difficulty receiving mail, the

Englerts' counsel did nothing with respect to service until March 2004 when

the insurer notified Englert of the impending end of the statute of limitations

period, and the counsel received the return of service in the mail.                   In

contrast, here, appellant's counsel promptly checked to see if service had

been made.        When he realized that it had not, he quickly reinstated the

complaint and effectuated service within five days. Unlike in Englert, there

was no intent to stall the judicial machinery.

         Fourth, the trial court mentions in its opinion that appellant failed to

reinstate the complaint, which would indicate             a   further lack of compliance

with the procedural rules. However, it        is    clear from the record that appellant

did do so.

         For the foregoing reasons, the order is reversed.

         Bender, P.J.E. joins this Memorandum.

         Stevens, P.J.E. files   a   Dissenting Memorandum.

Judgment Entered.



     /
Joseph D. Seletyn,
Prothonotary

Date: 5/8/2017




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