J-S76026-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MEGAN PEARCE AND DAVID PEARCE                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellants

                    v.

DENETTE JONES

                         Appellee                    No. 986 WDA 2014


                 Appeal from the Order Entered May 23, 2014
              In the Court of Common Pleas of Jefferson County
                     Civil Division at No(s): 427-2013-CD


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 30, 2015

      Appellants David and Megan Pearce, husband and wife, appeal from

the order granting summary judgment to Appellee Denette Jones, entered

by the Honorable John H. Foradora, Court of Common Pleas of Jefferson

County. After careful review, we affirm.

      This case arises from a motor-vehicle accident that occurred on May

30, 2011.   The Pearces allege that Jones ran through a stop sign before

striking the vehicle they were in, causing them both injuries.

      On May 28, 2013, the Pearces filed a complaint asserting that Jones’s

negligence had caused their injuries.      However, no attempt was made to

procure service of the complaint on Jones.      The Pearces’ counsel notified

Jones’s insurer of the fact that he had been retained.           After receiving

acknowledgment of receipt of the notice from Jones’s insurer, Pearces’
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counsel e-mailed a copy of the filed complaint to the insurer on August 22,

2013.

        On September 25, 2013, the Pearces attempted to file a praecipe to

have the complaint reinstated, but failed to include the required fee to the

Prothonotary.      Thereafter, on November 8, 2013, the Pearces filed a

praecipe to reinstate the complaint.             The reinstated complaint was not

served upon Jones, as the sheriff’s return indicated that the address was

incorrect.

        The Pearces obtained new counsel, and on January 24, 2014, they

again praeciped to have the complaint reinstated.            This time, the sheriff

successfully served the reinstated complaint upon Jones as indicated by the

sheriff’s return of service filed January 28, 2014.         After filing an answer,

Jones filed a motion for summary judgment, asserting that the Pearces had

failed to satisfy the good-faith effort at procuring service under the Lamp1

rule. The trial court granted Jones’s motion for summary judgment, and this

timely appeal followed.

        On appeal, the Pearces first argue that the trial court erred in finding

that they had not satisfied the Lamp rule.              This Court has previously

described the rule in the following terms:

        It is well settled in this Commonwealth pursuant to [Lamp] and
        Faranacci v. Beaver County Industrial Development
____________________________________________


1
    Lamp v. Heyman, 366 A.2d 882 (Pa. 1976).



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      Authority, … 511 A.2d 757 ([Pa.] 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.
      What constitutes a ‘good faith’ effort to serve legal process is a
      matter to be assessed on a case by case basis.              Where
      noncompliance with Lamp is alleged, the court must determine
      in its sound discretion whether a good-faith effort to effectuate
      notice was made.

Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 124 (Pa.

Super. 2007) (internal citations and some quotation marks omitted).         A

determination that a plaintiff has not acted in good faith is committed to

the discretion of the trial court, and will not be disturbed on appeal absent

an abuse of that discretion. See McCreesh v. City of Philadelphia, 888

A.2d 664, 672 (Pa. 2005).

      In the instant case, the trial court found that there was no evidence

of any effort by the Pearces to provide timely service of the complaint upon

Jones. A review of the certified record on appeal reveals ample support for

the trial court’s finding. There is no indication that the Pearces requested

service of the complaint by the sheriff when it was initially filed.   Nor is

there any evidence that the Pearces provided a copy of the complaint to

Jones by any other manner until August 22, 2013, when a copy of the

complaint was e-mailed to a claims adjuster at Jones’s insurer.

      Additionally, there is no evidence that Jones had actual notice of the

complaint prior to August 22, 2013. The Pearces argue that an e-mail from

the adjuster establishes that Jones had actual notice of the litigation. Even

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assuming that the adjuster qualifies as Jones’s agent for actual notice

purposes, we note that the copy of the e-mail included in the certified

record does not support the Pearce’s argument.

      Actual notice of the potential for litigation is not sufficient; a

defendant must have actual notice of the commencement of litigation to

satisfy the Lamp rule. See McCreesh, 888 A.2d at 672, n. 17. The e-

mail from the adjuster acknowledged nothing more than “receipt of your

letter of representation.” This was not an acknowledgment that the insurer

was aware of the commencement of litigation, merely that counsel had

been retained. Therefore, we conclude that the trial court did not abuse its

discretion in finding that the Pearces had not satisfied the good-faith effort

requirement of Lamp.

      In the alternative, the Pearces contend that the trial court erred in

failing to consider whether Jones suffered any prejudice. Initially, we note

that the Pearces do not cite to any authority in support of this argument.

See Appellants’ Brief, at 14. In any event, we agree with the trial court

that an inquiry into prejudice was unnecessary under the circumstances.

Since the Pearces did not establish that they had engaged in a good-faith

effort to secure service upon Jones in a timely manner, that service was not

procured within the statute of limitations, and that there was no actual

notice of the commencement of litigation in this matter, there was no need

to consider whether Jones suffered any prejudice.


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     Order affirmed. Jurisdiction relinquished.

     President Judge Emeritus Ford Elliott joins in the memorandum.

     Judge Olson files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2015




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