J-A12013-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICKY A. TRIVITT AND APRIL TRIVITT, IN THE SUPERIOR COURT OF
                                          PENNSYLVANIA
                     Appellants

                     v.

LAURA SERFASS, WILLIAM P. SERFASS,
JR. AND KATHY J. SERFASS,

                          Appellees                  No. 1596 MDA 2014


                 Appeal from the Order September 3, 2014
              In the Court of Common Pleas of Adams County
                    Civil Division at No(s): 2013-S-873

BEFORE: BOWES, DONOHUE AND ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 21, 2015

      Ricky A. and April Trivitt appeal from the September 3, 2014 order

dismissing this negligence action filed against Appellees, Laura, Kathy J. and

William P., Jr., Serfass (sometimes referred to as the Serfass family). We

affirm.

      On July 15, 2013, Appellants instituted this action by filing a

complaint.    Service was not effectuated within the time constraints of

Pa.R.C.P. 401, which states, “Original process shall be served within the

Commonwealth within thirty days after the issuance of the writ or the filing

of the complaint.”    Nor was a return of no service filed, as provided by

Pa.R.C.P. 405(a) (“If service has not been made and the writ has not been

reissued or the complaint reinstated, a return of no service shall be made

upon the expiration of the period allowed for service.”).
J-A12013-15



         On September 30, 2013, ten weeks after the complaint was filed,

Appellants praeciped to reinstate it, as permitted by Pa.R.C.P. 401, which

allows reissuance of original process at any time. Pa.R.C.P. 401 (b)(1) (if

service is not made within thirty days, the “prothonotary upon praecipe and

upon presentation of the original process, shall continue its validity by

reissuing the writ or reinstating the complaint[.]”).

         Service was thereafter effectuated and a return of service then was

filed.    See Pa.R.C.P. 405(a) (when service of “original process has been

made, the sheriff or other person making service shall make a return of

service forthwith.”).   The sheriff’s return of service indicates that at 2:00

p.m. on October 24, 2013, Deputy John Smith served the complaint upon

Laura Serfass, William P. Serfass, Jr. and Kathy J. Serfass by personally

handing a copy of the complaint to Kathy Serfass at 271 Table Rock Road,

Gettysburg.      The return also reported that Kathy is William’s wife and

Laura’s mother and was the adult in charge of the residence when service

was achieved.

         The complaint indicated the following. The lawsuit arose from a July

15, 2011 motor vehicle accident.     On the day in question, Mr. Trivitt was

driving his motorcycle westbound on York Road in Straban Township near

the intersection of Hunterstown Road, when Laura Serfass, who was

traveling eastbound on York Road in her parents’ motor vehicle, made a left




                                      -2-
J-A12013-15



hand turn into Mr. Trivitt’s right of way and struck his motorcycle.         As a

result of the collision, Mr. Trivitt suffered debilitating and permanent injuries.

      Appellants averred that Laura negligently operated her vehicle

resulting in the accident and that her parents negligently entrusted their

vehicle to her and supervised her use of it. It was further averred that Mr.

and Mrs. Serfass either knew or should have known that Laura’s driving

presented a risk of danger to the public.

      On November 1, 2013, Scott D. McCarroll, Esquire, entered his

appearance in this action on behalf of Appellees.          Appellees then filed

preliminary objections asserting, inter alia, that the statute of limitations had

expired since Appellants failed to make a timely good faith attempt to

effectuate service after filing the complaint.       Appellees noted that the

complaint was filed on the last day of the applicable statute of limitations, it

was reinstated on September 30, 2013, well after the thirty days required

for service, and no effort was made to effectuate service until October 18,

2013, when the complaint was mailed to the sheriff’s office.

      Appellants filed an amended complaint and an answer to the

preliminary objections. The amended complaint did not materially alter the

allegations of negligence against Appellees.      On November 27, 2013, the

court dismissed the first set of preliminary objections based upon the filing

of the amended complaint, and Appellees filed preliminary objections again

contending that the statute of limitations had expired due to Appellants’

                                      -3-
J-A12013-15



failure to make any effort to serve the complaint from July 15, 2013, to

October 18, 2013.

     The following is uncontested. Appellees were insured by Penn National

Mutual Casualty Insurance Company (“Penn National”). After the accident,

Penn National retained Mr. McCarroll to represent it while Appellants

retained Ramsay Whitworth, Esquire. From November 22, 2011, until July

15, 2013, Mr. Whitworth and Mr. McCarroll engaged in communications

regarding damages, the collision, and the settlement of the potential lawsuit

that Appellants intended to file against Appellees. Mr. Whitworth was aware

that Penn National retained Mr. McCarroll.

     On July 15, 2013, the day the complaint was filed and the penultimate

date for purposes of the statute of limitations, Mr. Whitworth sent an email

to Mr. McCarroll telling him that the complaint against Appellees had been

filed and asking him to confirm that he was authorized to accept service.

Mr. McCarroll immediately responded by email that he would talk to his

client. The next day, Mr. McCarroll informed Mr. Whitworth that he would

not accept service on behalf of Appellees. Thereafter, on July 23, 2013, Mr.

Whitworth asked Mr. McCarroll whether Appellees would meet with him for

purposes of service.   Mr. McCarroll did not respond to the July 23, 2013

email.

     On July 30, 2013, Mr. Whitworth prepared a cover letter to send a

copy of the complaint to the Serfass family.   This mailing would not have

                                    -4-
J-A12013-15



satisfied the service requirements outlined in the rules of civil procedure.

Pa.R.C.P. 400(a) (with exceptions inapplicable herein, “original process shall

be served within the Commonwealth only by the sheriff”); Pa.R.C.P. 4024.

(governing manner of service and requiring personal service on an individual

by handing original process to that defendant or to an adult member of the

family with whom the defendant resides at the defendant’s residence).

      In affidavits, Appellees denied receiving the July 30, 2013 letter. Mr.

Whitworth later admitted that he did not believe that the July 30, 2013 letter

was mailed since, on August 1, 2013, Mr. McCarroll asked for a copy of the

complaint.   Mr. McCarroll received a faxed copy on August 8, 2013.        The

same day that Mr. McCarroll asked for a copy of the complaint from Mr.

Whitworth, August 1, 2013, Mr. McCarroll also sent a letter to the Adams

County Prothonotary requesting a copy of the complaint and indicating that

his clients were the members of the Serfass family.

      After a hearing, the trial court sustained the preliminary objections and

dismissed this case based upon the principles enunciated by our Supreme

Court in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), and its progeny. The

trial court determined that Appellants failed to make a good faith effort to

properly serve the complaint after it was filed.

      This appeal followed.    Appellants raise the following issues in this

appeal:




                                     -5-
J-A12013-15



      A. Does actual notice of the filing of a suit given to the insurance
      company or to the defense lawyer appointed by the insurance
      company before the expiration of the summons under
      Pa.R.Civ.P. No. 401 toll the statute of limitations until service of
      the summons and complaint upon the defendant-insured has
      occurred where the defendant has not been prejudiced by any
      delay?

      B. Should the August 1, 2013 letter sent to the Prothonotary by
      Scott McCarroll, counsel for the Defendants, on behalf of "our
      clients, the Serfass family" be treated as an entry of appearance
      under Pa.R.Civ.P. No. 1012(a) that eliminated the need for
      service of the summons and complaint under Pa.R.Civ.P. No.
      401?

      C. Was Defendants' assertion of attorney-client privilege as to
      communications with Scott McCarroll and Thomas, Thomas &
      Hafer, LLP between July 15, 2011 and October 24, 2013 a
      judicial admission that Scott McCarroll and Thomas, Thomas &
      Hafer, LLP were their attorneys between July 15, 2013 and
      August 15, 2013?

Appellants’ brief at 3-4.

      Initially, we observe that our “standard of review of an order of the

trial court overruling or granting preliminary objections is to determine

whether the trial court committed an error of law.      When considering the

appropriateness of a ruling on preliminary objections, the appellate court

must apply the same standard as the trial court.” Richmond v. McHale, 35

A.3d 779, 783 (Pa.Super. 2012).

      In their first issue on appeal, Appellants suggest that the trial court

“mistakenly conflated the purposes and requirements of the statute of

limitations and of service of process and incorrectly ruled that the statute of

limitations is tolled only by a good faith attempt to serve process.”

                                     -6-
J-A12013-15



Appellant’s brief at 26. They assert that the statute of limitations is tolled by

a good-faith attempt to give notice of a timely-filed lawsuit rather than a

good-faith attempt to serve process. Additionally, Appellants claim that the

trial court erred in determining that notice of an action given to counsel for

the defendant’s insurance company was not notice to the actual party to the

lawsuit.

      The law is to the contrary.       Standard Pennsylvania Practice aptly

summarizes the applicable principles involved in this appeal:

             A writ of summons or complaint remains effective to
      commence an action and toll the statute of limitations only if the
      plaintiff refrains from a course of conduct that serves to stall in
      its tracks the legal machinery the plaintiff has just set in motion.
      In order to toll the statute of limitations, the plaintiff must make
      a good-faith effort to serve the complaint in a timely manner.
      The tolling for the statute of limitations occurs when there is
      proper, prompt service of a timely filed writ of summons. 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 of process
      on the opposing party. When a plaintiff successfully tolls the
      applicable statute of limitations on an action by timely issuance
      and delivery of a complaint for service, the action is kept alive
      for a period equal to the original statute of limitations.

Standard Pennsylvania Practice § 8:15 (footnotes omitted; emphasis added).

      The key facts are as follows. Appellants filed their lawsuit on July 15,

2013, the last day of the applicable statute of limitations. They did nothing

to effectuate service until October 18, 2013, when they mailed the complaint

to the sheriff for service. On July 16, 2013, Mr. Whitworth was expressly

                                      -7-
J-A12013-15



informed that Mr. McCarroll would not accept service of process on behalf of

the Serfass family. Mr. McCarroll, the insurer’s lawyer, was the only person

whom Appellants actually notified about the filing of the complaint.

        We begin with a discussion of the seminal case in this area of the law,

Lamp, supra. Therein, the action was timely instituted by writ of summons

on the last day of the applicable statute of limitations.           The plaintiff’s

attorney did not forward the writ of summons to the sheriff’s office for filing.

Instead, the lawyer issued instructions to the prothonotary to issue the writ

but then to hold it.       The defendants were not served with original process

until well after the statute of limitations had expired.     Our Supreme Court

noted    that   it   was    a   “relatively   common   practice   throughout   the

Commonwealth for attorneys to file a praecipe with the prothonotary to toll

the statute of limitations but then, whether because settlement negotiations

are in progress or because more time is needed to prepare the case, to

delay or prevent service upon the defendant.” Lamp, supra at 886.

        The Lamp Court recognized that the mechanism for service of original

process varied from county to county. Sometimes the prothonotary would

forward the writ or complaint to the sheriff for service and the plaintiff need

not take further action. Other times, the plaintiff was responsible for taking

the writ or complaint to the sheriff’s office and completing the instructions

and paying the fees for service. At the time of the Lamp decision, plaintiffs

could delay service of process by issuing a hold with the prothonotary so

                                         -8-
J-A12013-15



that the prothonotary would not forward the process to the sheriff, issuing a

hold with the sheriff asking that process not be served, failing to forward the

original process to the sheriff for service, or neglecting to pay the sheriff’s

fees for service. Id.

      Our Supreme Court in Lamp was tasked with deciding whether the

statute of limitations was tolled when, although a lawsuit was timely filed,

the plaintiff failed to make any effort to serve the defendant. It interpreted

the language of the precursor to Pa.R.C.P. 401, which was identical to the

current rule, and concluded that neither that language nor the court’s prior

decisions permitted it to rule that the plaintiff’s “‘issue and hold’ instructions

to the prothonotary upon filing her praecipe nullified the commencement of

her action and caused it to be barred by the statute of limitations.” Id. The

court noted that the rule in question plainly provided that an action was

commenced upon the filing of a writ or complaint regardless of when orginal

process is served.

      Nevertheless, our High Court determined that there was “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.”    Id. at 888.    It also found “that such a

rule is inconsistent with the policy underlying statutes of limitation of

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

                                      -9-
J-A12013-15



processes of justice as speedy and efficient as possible.”           Id. at 888-89

(footnotes omitted).

      The Lamp Court announced a new, prospective rule of law, and held

that, in any action instituted after its decision was filed, “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. (footnote omitted).   Our High

Court continued that the statute of limitations will not be tolled unless a

plaintiff complies “with local practice as to the delivery of the writ to the

sheriff for service.”     Id.     It ruled that if, under local practice, the

prothonotary prepares the writ and delivers it to the sheriff, “the plaintiff

shall have done all that is required of him when he files the praecipe for the

writ; the commencement of the action shall not be affected by the failure of

the writ to reach the sheriff's office where the plaintiff is not responsible for

that failure.”   Id.   The Court continued, “Otherwise, the plaintiff shall be

responsible for prompt delivery of the writ to the sheriff for service.” Id.

      In   Farinacci     v.     Beaver     County       Industrial   Development

Authority, 511 A.2d 757 (Pa. 1986), the Court applied Lamp to a situation

where an action was filed on the last day of the applicable statute of

limitations “but, through plaintiff's counsel's inadvertence, service of the writ

could not be effected within 30 days of its issuance.” Id. at 758. Therein,

the lawyer filed a lawsuit and paid for the writ, but lost the file. After the file

                                         - 10 -
J-A12013-15



was found and returned to him eight or nine days later, counsel forgot to

pay the service fees and give instructions on service to the sheriff.      One

month later, the attorney forwarded the fee and instructions to the sheriff.

Service was made two weeks thereafter. The trial court dismissed the case

due to the lawyer’s failure to pay the sheriff’s fee and give that office

instructions within thirty days of the filing of the action.

      The Farinacci Court affirmed, ruling first that the trial court

determines, in its discretion, whether a good-faith effort was made to serve

the defendant.    Our Supreme Court noted that the the thirty-day delay in

requesting service after the file was returned to the lawyer was “attributable

only to counsel's faulty memory.”      Id. at 760. It continued, “As plaintiffs

have failed to provide an explanation for counsel's inadvertence which could

substantiate a finding that plaintiffs made a good-faith effort to effectuate

service of the writ, we are constrained to hold” that the trial court’s order

granting the preliminary objections and dismissing the case “was not an

abuse of discretion, and was therefore proper.” Id.

      Our Supreme Court more recently examined the Lamp decision in

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

therein that there were two lines of cases interpreting Lamp.              One

demanded strict compliance with the rules of civil procedure, continual

efforts at service, and consistent reissuance of process in a timely manner.

The other line of case authority allowed for a more flexible approach,

                                      - 11 -
J-A12013-15



permitting an action to continue where there was actual notice to the

defendant of the pending action and an attempt at proper service.         The

McCreesh Court announced it would adopt the latter line of cases and that

it would excuse “procedurally defective service where the defendant

has actual notice of the commencement of litigation and is not otherwise

prejudiced[.]” Id. at 666 (emphases added).

      Therein, the plaintiff was allegedly injured by a falling tree owned by

the City of Philadelphia, where service of process can be effectuated by any

competent adult. Two days before the statute of limitations ran, the action

was commenced by writ, which was immediately sent by certified mail to the

City’s law department. The receptionist for the law department signed the

certified mail receipt.   Thus, the City had actual notice of the suit and

plaintiff had made an effort to serve process.

      Nearly three months later, the plaintiff filed a complaint and obtained

another writ; both documents were then hand delivered to the City law

department. Philadelphia filed preliminary objections arguing that it was not

properly served with process before the statute of limitations expired. Our

Supreme Court held that the defective service by certified mail was a good

faith effort to serve the process. It also noted that the defendant had actual

notice of the lawsuit.     It ruled that dismissal under Lamp was not

warranted.    Our High Court continued that dismissal under Lamp is

warranted only when there was an intent to stall the judicial machinery or

                                    - 12 -
J-A12013-15



the failure to comply with the rules of civil procedure prejudiced the

defendant. Id. at 674.

      In Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122

(Pa.Super. 2007), the case was dismissed under Lamp, we affirmed, and

our Supreme Court remanded for reconsideration under McCreesh.          Upon

remand, we again upheld the trial court’s dismissal. Therein, the plaintiffs

brought their action against the defendant corporation within the statute of

limitations. The sheriff attempted service, but the defendant had moved six

months before the writ issued. The sheriff sent plaintiffs’ counsel a return

indicating no service was made and providing plaintiffs with the defendant’s

new address. In the meantime, plaintiffs’ counsel moved his law office and

experienced failed mail deliveries.    The lawyer never checked to ascertain

that service was made and instead waited for the sheriff’s return. Counsel

then reissued the writ six days after the statute of limitations expired and

obtained service.

      Therein, we observed, “It is not 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.”       Id. at 124.   Rather, “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.”         Id.

Therefore, unintentional conduct can constitute a lack of good faith. Id. at

124-25.

                                      - 13 -
J-A12013-15



      We concluded in Englert that the trial court did not abuse its

discretion in finding a lack of good faith efforts to serve process therein. Our

affirmance rested on the lawyer’s failure to determine if service was made

when there were problems with mail delivery to the law office. The Englert

panel stated that the lawyer’s “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.” Id. at 127 (emphasis added).

      As to the present case, the Farinacci decision is directly on point.

There simply was no effort to obtain service over the Appellees herein for

three months. It was Mr. Whitworth’s responsibility to forward the complaint

to the sheriff’s office for service. He admittedly did not perform that action

until October 18, 2013, over three months after the statute of limitations

expired on July 15, 2013. There was no excuse for this neglect since Mr.

McCarroll clearly informed Mr. Whitworth that Mr. McCarroll would not accept

service of process on behalf of the Serfass family.       McCreesh indicates

dismissal is warranted when there is either an intent to stall the judicial

machinery or prejudice.    Lamp and Farinacci hold that intent to stall the

judicial machinery is present when the plaintiff does not forward process to

the sheriff in order to effectuate service.     Englert reaffirms that, after

McCreesh, inaction constitutes stalling the judicial machinery.         Herein,

there was inaction for over three months. There was never a good faith but

procedurally defective attempt at service, as there was in McCreesh.

                                     - 14 -
J-A12013-15



Hence, we must conclude that the trial court did not abuse its discretion in

concluding that Appellants did not make a good faith effort to serve process

and that dismissal under Lamp and its progeny was appropriate.

      Appellants contend that defense counsel appointed by the insurance

company represents the insured in the lawsuit, and assert, that “Actual

notice of the suit to the insurance company or to the defense counsel

appointed by the insurance company is actual notice to the insured.”

Appellants’ brief at 32. Appellants note that an insurer becomes the agent

for its insured in connection with the handling of litigation covered by the

policy. They then rely upon the general principle that notice to an agent is

sufficient to provide notice to the principal. Appellant’s brief at 35.

      However, notice to an insurance company’s lawyer of the filing of

original process is insufficient to toll the statute of limitations when there has

been no good faith effort to serve process on the actual defendants. Cahill

v. Schults, 643 A.2d 121 (Pa.Super. 1994) (affirming dismissal under Lamp

and holding that sending, by certified mail, a copy of complaint to insurer’s

lawyer did not constitute service on insured); Schriver v. Mazziotti, 638

A.2d 224 (Pa.Super. 1994), abrogated on other grounds by McCreesh,

supra (sending insurance company’s attorney a copy of a complaint is not a

good faith effort to serve process on the insured); Ferrara v. Hoover, 636

A.2d 1151, 1153 (Pa.Super. 1994) (“We find no merit in the contention




                                      - 15 -
J-A12013-15



communication between [plaintiff] and [defendants’] insurance adjuster

serves as a substitute for actual service of process.”).

        Sending original process to an insurer’s lawyer by fax does not

constitute a good faith effort to effectuate service on the insured under the

case law interpreting Lamp. The fact that Mr. McCarroll and Penn National

had actual notice of the lawsuit does not warrant reversal herein because

Appellants made no effort to serve the complaint on the Serfass family for a

period of over three months.                   We therefore reject Appellants’ assertions,

peppered throughout their brief, that reversal in this case is warranted

based upon the fact that Penn National and its counsel had actual notice of

the suit.

        Appellants’ second contention is as follows. The August 1, 2013 letter

from Mr. McCarroll to the prothonotary constituted an entry of appearance

under Pa.R.C.P. 1012(a) and eliminated the need for service on the Serfass

family under Pa.R.C.P. 401. Appellants note that, in the letter, Mr. McCarroll

stated that he represented the Serfass family.

        The first flaw with this argument is that a letter to a prothonotary

bears no resemblance to the form outlined for entry of appearance.1

____________________________________________
1
    Pa.R.C.P. 1012(f)(1) states:

         The entry of appearance under subdivision (a) shall be
        substantially in the following form:

(Footnote Continued Next Page)

                                                 - 16 -
J-A12013-15



Additionally, the letter was not docketed and filed of record by the

                       _______________________
(Footnote Continued)
                                                 Caption

                               Praecipe for Entry of Appearance

To the Prothonotary:

Enter my                     ______________________________________________
appearance on
behalf of
                                                 (Plaintiff/Defendant/Additional Defendant)

                                                 Papers may be served at the address set
                                                 forth below.

                                       _________________________________________
                                      Attorney for Party Named Above and
                                      Identification Number

                                       _________________________________________
                                      Firm

                                       _________________________________________
                                      Address

                                       _________________________________________
                                      City, State, Zip Code

                                       _________________________________________
                                      Telephone Number

                                       _________________________________________
                                      Fax Number for Service of Papers
                                      (Optional)

Date: __________                      _________________________________________
                                      Signature




                                                   - 17 -
J-A12013-15



prothonotary. A copy of the letter was not sent to Appellants, even though

notice of entry of appearance must be given to all parties.       Finally, Mr.

McCarroll, after the complaint was served on Appellees, actually filed an

entry of appearance. Simply put, an informal letter to a prothonotary does

not constitute an entry of appearance.

      Thus, Appellant’s second argument’s factual premise, that a letter

constitutes an entry of appearance, is faulty.         Moreover, Appellants

incorrectly maintain that the law provides that an entry of appearance

obviates the need for actual service of process.     Appellants’ brief at 42.

Pa.R.C.P. 1012(a) states (emphasis added):

           A party may enter a written appearance which shall state an
      address at which pleadings and other legal papers may be
      served in the manner provided by Rule 440(a)(1) and a
      telephone number. The appearance may also include a telephone
      facsimile number as provided in Rule 440(d). Such appearance
      shall not constitute a waiver of the right to raise any
      defense including questions of jurisdiction or venue.
      Written notice of entry of an appearance shall be given forthwith
      to all parties.

      Thus, Appellants’ legal position is contrary to the express language of

Rule 1012(a) that entry of an appearance does not result in a waiver of any

objections to jurisdiction. Appellants also rely upon non-contextual quotes in

inapposite cases.   For example, Appellants cite to Cinque v. Asare, 585

A.2d 490 (Pa.Super. 1990), where we concluded that a trial court erred in

granting summary judgment based upon defects in the service of process

since those defects were waived.    However, therein, waiver was premised

                                    - 18 -
J-A12013-15



upon the fact that the defendant filed an answer to the complaint and other

documents without filing preliminary objections to the manner of service. It

is true that “one can waive service of process by various means, and become

a party to a suit by voluntary appearance,” Peterson v. Philadelphia

Suburban Transp. Co., 255 A.2d 577, 583 (Pa. 1969); however, the filing

of an entry of appearance form under Pa.R.C.P. 1012 has never been

construed as waiving defects in service. Indeed, we have expressly stated,

“A defendant manifests an intent to submit to the court's jurisdiction when

the defendant takes some action (beyond merely entering a written

appearance) going to the merits of the case, which evidences an intent to

forego objection to the defective service.” Fleehr v. Mummert, 857 A.2d

683, 685 (Pa.Super. 2004) (citation and quotation marks omitted; emphasis

added). Thus, even if the August 1, 2013 letter was an entry of appearance,

which it was not, it did not absolve Appellants of the responsibility to obtain

jurisdiction over the Serfass family by serving them with process.

      Appellants’ final position is that Mr. McCarroll made judicial admissions

that he represented the Serfass family as of July 15, 2013. They suggest

that sending the complaint to Mr. McCarroll, as the Serflass family’s personal

lawyer, was sufficient to satisfy their obligations under Lamp. We disagree.

Assuming Mr. McCarroll was the personal attorney for the Serfass family, we

disagree with the proposition that mailing a copy of a complaint to a party’s

lawyer after that lawyer has said he would not accept service is sufficient to

                                    - 19 -
J-A12013-15



invoke McCreesh. Notice of the filing of a lawsuit, standing alone and with

no concomitant attempt at proper service of the original process under the

rules of civil procedure, does not fall within the parameters of that decision.2

        Order affirmed.

        Judge Allen joins this memorandum.

        Judge Donohue files a dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




____________________________________________
2
  Hence, we reject a new position raised in Appellants’ reply brief.       That
claim is that the Serfass family had “inquiry notice” of this lawsuit.


                                               - 20 -
