J-S84017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL ROYTMAN                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

KAREN CESARONE

                            Appellee                  No. 3345 EDA 2015


                  Appeal from the Order Dated October 6, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2013-32160


BEFORE: OLSON, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                         FILED FEBRUARY 14, 2017

        Appellant Michael Roytman appeals from the order sustaining the

preliminary objection of Appellee Karen Cesarone and dismissing Roytman’s

complaint with prejudice for failure to make timely service. We affirm.

        Roytman’s complaint avers one count of negligence stemming from an

alleged traffic collision between Roytman and Cesarone on November 1,

2011.      Roytman filed his complaint in the Court of Common Pleas of

Montgomery County on October 28, 2013, just two days before the two-year

statute of limitations would have run. See 42 Pa.C.S. § 5524(2). He claims

that he waited so long to file suit because he was trying to settle the case

with Cesarone’s insurance company, but he does not claim that he ever

____________________________________________

*
    Former Justice specially assigned to the Superior Court.
J-S84017-16


provided Cesarone with actual notice of the suit in connection with those

efforts. See Plaintiff’s Response to Defendant’s Prelim. Obj. ¶¶ 4-7.

       Rule 401(a) of the Rules of Civil Procedure provides, “Original process

shall be served within the Commonwealth within thirty days after . . . the

filing of the complaint.”       Roytman claims that he asked the Montgomery

County Sheriff to have the complaint served on Cesarone at her address in

Doylestown, Bucks County, within that 30 days, but that “[t]he Montgomery

County Sheriff’s Office was ineffective in effectuating service.” Id. ¶¶ 9-10.

There is no indication on the docket that service was ever requested or

attempted at that time, however.               See Tr. Ct. Op., 3/14/16, at 4 (“The

docket reflects no attempt to serve [Cesarone] with the Complaint within the

required thirty (30) days”).1

       Rule 401(b) of the Rules of Civil Procedure provides:

____________________________________________

1
  Roytman included in the record a copy of a November 7, 2013 letter from
his counsel to the Office of Montgomery County Sheriff that requested
service and said it was enclosing two checks numbered 1058 (for $28.00,
made payable to the Montgomery County Sheriff) and 1060 (for $58.00,
made payable to the Bucks County Sheriff) for the payment of fees. He also
included copies of the front sides of both checks, each of which was dated
November 7, 2013; but he did not include the backs of the checks or any
information showing their endorsement. As noted in the text, Roytman had
the complaint reissued on December 20, 2013, and, on December 26, 2013,
he sent a letter to the Montgomery County Sheriff’s Office requesting service
of the reissued complaint. The December 26, 2013 letter said it was
enclosing checks numbered 1058 (for $28.00, made payable to the
Montgomery County Sheriff) and 1060 (for $58.00, made payable to the
Bucks County Sheriff). The correspondence thus suggests that the checks
for the sheriffs’ fees were not submitted until the time Roytman asked for
service of the reissued complaint on December 26, 2013.


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       (1) If service within the Commonwealth is not made within the
       time prescribed by subdivision (a) of this rule . . ., 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 . . . “reinstated”
       in the case of a complaint.

       (2) . . . [A] complaint [may be] reinstated at any time and any
       number of times. . . .

       (4) A reissued, reinstated or substituted . . . complaint shall be
       served within the applicable time prescribed by subdivision (a) of
       this rule . . . .

On December 20, 2013, Roytman praeciped to reinstate the complaint.

However, the praecipe did not include presentation of original process, as

required by Rule 401(b)(1).          On December 26, 2013, Roytman’s counsel

wrote to the Montgomery County Sheriff requesting service of the reinstated

complaint. The process was returned unserved.2

       Nearly one year later, on January 7, 2015, Roytman again had the

complaint reinstated. This time, Roytman was successful in having Cesarone

served by the sheriff on January 28, 2015. She was served by hand-delivery

at the same home address in Doylestown that had been listed on the

complaint in October 2013.



____________________________________________

2
  The record shows that on December 27, 2013, the Montgomery County
Sheriff deputized the Bucks County Sheriff to serve the reinstated complaint
in Bucks County. The Bucks County Sheriff made several attempts to serve
the complaint in January 2014, but was unsuccessful and returned the
reinstated complaint unserved on January 13, 2014. A January 28, 2014
docket entry notes the unsuccessful attempt.


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     On February 18, 2015, Cesarone filed a preliminary objection under

Rule 1028(a) of the Rules of Civil Procedure that sought dismissal of the

complaint because of an improper delay in service of the complaint.          Rule

1026 of the Rules of Civil Procedure provides that a response to a pleading

(including a preliminary objection) must be filed within 20 days, but that no

response need be filed if the preceding pleading is not “endorsed with a

notice to plead.” Cesarone’s preliminary objection was not endorsed with a

notice to plead, but on March 10, 2015, Roytman filed a response anyway.

The response was titled, “Plaintiff’s Response to Defendant’s Preliminary

Objection to Plaintiff’s Complaint”; Roytman did not file a preliminary

objection to Cesarone’s preliminary objection.       Roytman’s response asked

that Cesarone’s preliminary objection be overruled.

     On October 6, 2015, the trial court sustained Cesarone’s preliminary

objection and dismissed Roytman’s complaint with prejudice “for improper

service   of   process   pursuant   to   Pa.R.C.P.    1028(a)   and    untimely

reinstatement.” Order, 10/6/15. The court explained:

     [O]nce an action is commenced via a writ of summons or a
     complaint, the statute of limitations is only tolled if the plaintiff
     makes a good faith effort to effectuate service. As the appellate
     court is aware, personal injury actions such as the one at bar
     have a two (2) year statute of limitations period. 42 P.C.S.A.
     Section 5524(2). Applying the above law to the case at bar,
     [Roytman] failed to properly serve the complaint on [Cesarone]
     in accordance with Rule 401, supra.

         First, [Roytman] filed his Complaint on October 28, 2013.
     However, [Roytman] did not serve [Cesarone] with the
     Complaint within the required thirty (30) days mandated by

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        Pa.R.C.P. 401(a). Consequently, reinstatement was necessary
        to properly serve [Cesarone]. However, on December 20, 2013,
        when [Roytman] filed his Praecipe to Reinstate the Complaint,
        [Roytman] presented no proof of original process with this
        Praecipe as required by Rule 401(b)(1). Consequently, the
        Reinstatement was void and any service thereafter was void. . . .

               Next, even assuming arguendo, that the first Reinstated
        Complaint was proper, [Roytman] failed to establish a good faith
        effort to serve the same in order to toll the statute of limitations.
        ....

        The accident at issue occurred on November 1, 2011 and
        [Roytman] filed suit a few days before the statute of limitations
        ran. The docket reflects no attempt to serve [Cesarone] with
        the Complaint within the required thirty (30) days. Nonetheless
        on December 20, 2013, [Roytman] filed a Praecipe to Reinstate
        the Complaint. At that point, [Roytman] was already two (2)
        years past the date of the accident, with no record evidence of a
        service attempt. [Roytman] then did not even attempt to serve
        the Reinstated Complaint until almost one (1) year post-
        reinstatement, clearly outside of the mandated thirty (30) days.
        Consequently, on January 7, 2015, [Roytman] filed a Second
        Praecipe to Reinstate the Complaint. This Second Reinstated
        Complaint was served on [Cesarone] on January 20, 2015[3], at
        her personal address [in Doylestown]. Significantly, this address
        is the exact same address cited in the initial Complaint filed
        fifteen (15) months earlier. Thus, from the inception of the
        action, [Roytman] had [Cesarone]'s correct address, and
        nonetheless, waited over one (1) year post-reinstatement, and
        over three (3) years post accident to serve [Cesarone], thereby
        stalling the legal process in its tracks . . . , and demonstrating a
        lack of good faith to serve the pleading.

Tr. Ct. Op., 3/14/16, at 2-5 (citations omitted).

        Roytman timely appealed, and, on November 23, 2015, Roytman filed

a three-page Concise Statement of Errors Complained of on Appeal. In his

Statement, Roytman claimed that the trial court erred and abused its
____________________________________________

3
    The record shows that the correct date is January 28, 2015.


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discretion   in   sustaining   the   preliminary   objection   because   Roytman

sufficiently attempted proper service and Cesarone “was not prejudiced by

having received service of the instant suit on January 20, 2015.” Pa.R.A.P.

1925(b) Statement, 11/23/15, at 2-3.           Second, Roytman claimed that

Cesarone improperly raised a statute-of-limitations defense by couching it as

an improper service argument. Id. at 3.

      In his appellate brief, Roytman raises the following issues in the

Statement of Questions Involved:

      I.    Did the trial court err in sustaining [Cesarone’s]
      preliminary objections on the grounds of improper service and
      by making such a judgment from the limited facts of record?

      II.   Did the trial court err in entertaining [Cesarone’s]
      preliminary objections despite the blatant disobedience of
      Pennsylvania’s Rules of Civil Procedure governing preliminary
      objections?

      III. Did the trial court abuse its discretion in sustaining
      [Cesarone’s] Preliminary objections and thereby dismissing
      [Roytman’s] Complaint?

      IV. Did the trial court err in ruling that [Roytman] failed to
      satisfy the requirements of what constitutes a “good faith effort”
      on the part of [Roytman], pursuant to the standards set forth in
      Lamp v. Heyman[, 366 A.2d 882 (Pa. 1976),] and Lei[d]ich v.
      Franklin[, 575 A.2d 914 (Pa. Super.), appeal denied, 584 A.2d
      319 (Pa. 1990)]?

Roytman’s Brief at 4.     For ease of discussion, we shall address Roytman’s

arguments in a different sequence from what he presents in his brief.

      On questions of law, our standard of review is de novo and our scope

of review is plenary.    Morrison Informatics, Inc. v. Members 1st Fed.



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Credit Union, 97 A.3d 1233, 1237 (Pa. Super. 2014), aff’d, 139 A.3d 1241

(Pa. 2016). With respect to timely service of process, “whether a plaintiff

acted in good faith lies within the sound discretion of the trial court.”

McCreesh v. City of Phila., 888 A.2d 664, 672 (Pa. 2005). We therefore

review the record to determine whether the court abused its discretion. See

Englert v. Fazio Mechanical Servs., Inc., 932 A.2d 122, 126 (Pa. Super.

2007.)

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      or the record, discretion is abused.

Id. (quoted citation omitted).

              Propriety of Cesarone’s Preliminary Objection

      As developed in his brief, two of Roytman’s arguments attack the

procedural propriety of Cesarone’s preliminary objection.       First, Roytman

contends that Cesarone erred in not endorsing her preliminary objection with

a notice to plead. Roytman’s contention is correct, but Cesarone’s error is

not material here. Rule 1026(a), which provides for the filing of a response

to a preliminary objection or other pleading, provides, “no [responsive]

pleading need be filed unless the preceding pleading . . . is endorsed with a

notice to plead.”    But despite the absence of a notice to plead from

Cesarone’s preliminary objection, Roytman filed a response in which he

denied the allegations made by Cesarone. Accordingly, Roytman waived his


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right to forego a response under Rule 1026(a).4              In addition, Roytman

waived this argument by failing to include it in his Rule 1925(b) statement.

See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues

not raised in a 1925(b) statement will be deemed waived”).                    Thus,

Cesarone’s failure to append a notice to plead to her preliminary objection

entitles Roytman to no relief.

       Roytman also claims that the preliminary objection was improperly

filed because Cesarone used it to argue “a statute of limitations defense

clandestinely couched as an improper service argument.” Roytman’s Brief at

15.   Roytman asserts that a statute-of-limitations defense may be raised

only in new matter under Pa.R.C.P. 1030(a), and that because Cesarone

failed to “properly format [her] response pursuant to Pa.R.C.P. 1030(a),” the

trial court erred in considering it. Once again, we conclude Roytman waived

this issue.

       We assume without deciding that Roytman is correct that Cesarone

should have filed an answer with new matter, rather than a preliminary

objection.     In that case, however, the “proper method for challenging the

propriety of defendants’ preliminary objections raising the statute of

limitations    is   by   preliminary     objections   to   defendants’   preliminary

objections.”    Farinacci v. Beaver County Indus. Dev. Auth., 511 A.2d

____________________________________________

4
  We note with disapproval that Roytman never mentions that he filed a
response in his argument of this issue.


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757, 759 (Pa. 1986); accord Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.

Super. 2004) (“When a defendant raises a waivable statute of limitations[ 5]

via preliminary objections, the proper challenge is to file preliminary

objections to strike the defendant’s preliminary objections for failure of a

pleading to conform to law or rule of court”).          A plaintiff who files an

“answer” or a “response” to a defendant’s preliminary objection, alleging

that the preliminary objection improperly raises a defense, waives the right

to object to the defendant’s form of pleading. See Button v. Button, 548

A.2d 316, 318 (Pa. Super. 1988) (where, rather than preliminarily objecting

to defendant’s preliminary objection, plaintiffs filed an “Answer,” plaintiffs

waived the right to object to defendant’s form of pleading). Here, Roytman

filed   a   “Response    to   Defendant’s Preliminary   Objection   to   Plaintiff’s

Complaint,” along with a memorandum of law.             By doing so, Roytman

waived any right to object to any procedural deficiency resulting from

Cesarone’s filing of a preliminary objection instead of new matter.

                    Roytman’s Delayed Service of Process

        Roytman’s remaining arguments challenge the trial court’s dismissal of

his case for delayed service of process. Roytman contends that the record


____________________________________________

5
   The two-year limitation period established through the general
Pennsylvania statute of limitations that is applicable to this action, 42
Pa.C.S. § 5524(2), is subject to waiver. Marucci v. Lippman, 177 A.2d
616, 617 (Pa. 1962); accord In re Gardner, 218 B.R. 338, 344 (Bankr.
E.D. Pa. 1998).


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was insufficient to permit the court to resolve this issue and that the court

erred in holding that he failed to make timely service.

      In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), the Supreme Court

sought to end abuses by plaintiffs who tolled the statute of limitations by

having original process repeatedly reissued without notifying the defendant

that a complaint had been filed. The Court explained:

      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. . . . [W]e rule that
      henceforth . . . [original process] 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.

366 A.2d at 889. In Leidich v. Franklin, 575 A.2d 914, 918 (Pa. Super.),

appeal denied, 584 A.2d 319 (Pa. 1990), this Court summarized:

      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.

In this connection, we have explained further that a “good-faith effort” may

be lacking where the delay in service is the result of the plaintiff’s neglect:

      Simple neglect or mistake in failing to fulfill the responsibility
      that the requirements for service are met may be sufficient to
      violate the good faith standard set forth in Lamp. Rosenberg
      [v. Nicholson], 408 Pa. Super. 502, 597 A.2d 145. “[I]t is not
      necessary the plaintiff’s conduct be such that it constitutes some
      bad faith or overt attempt to delay before the rule of Lamp will
      apply.” Ferrara [v. Hoover,] 636 A.2d[, 1151] 1152 [(Pa.
      Super. 1994)] (quoting Rosenberg, 408 Pa.Super. at 509-10,

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       597 A.2d at 148); see also Rosenberg, supra, 408 Pa.Super.
       502, 597 A.2d 145 (holding that plaintiff’s inadvertent service at
       the defendant’s incorrect address, after having received
       defendant’s correct address from the post office, lacked
       reasonableness and good faith); Wible v. Apanowicz, 306 Pa.
       Super. 262, 452 A.2d 545 (1982) (holding that it is reasonable
       to expect that a plaintiff, if he knows that process could not be
       served at a given address, will employ some alternative means
       to effectuate service).

Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423, 433-34 (Pa.

Super.), appeal denied, 668 A.2d 1119 (Pa. 1995).

       In McCreesh, 888 A.2d at 666, the Supreme Court reaffirmed its

holding in Lamp, but clarified that Lamp should be applied according to

what the Court called “the more flexible approach” exemplified by this

Court’s decision in Leidich, in which “procedurally defective service” would

be excused “where the defendant has actual notice of the commencement of

litigation and is not otherwise prejudiced.” See also id. at 674. The       Court

did not otherwise disturb its prior holdings that plaintiffs are required “to

demonstrate ‘a good-faith effort to effectuate notice of commencement of

the action.’” Id. at 672, quoting Farinacci, 511 A.2d at 759.

       Roytman does not contend that Cesarone had actual notice of the

commencement of the action before she was served in January 2015.6

____________________________________________

6
  Roytman’s early contacts with Cesarone’s insurance company did not
provide the requisite notice. See Englert, 932 A.2d at 127 (“notice that
there was a potential for litigation . . . is not the same and cannot suffice”);
Cahill v. Schults, 643 A.2d 121, 125 (Pa. Super. 1994) (affirming dismissal
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
(Footnote Continued Next Page)

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Rather, he maintains that Lamp is distinguishable, because, unlike the

plaintiff in that case, he did not engage in misconduct to delay the litigation.

Roytman contends that Lamp “requires voluntary misconduct and an active

desire to delay the legal process” and says that he engaged in no such

misconduct here. Roytman’s Brief at 13. Roytman also argues that the trial

court erred by not acknowledging Leidich’s alleged admonition to not apply

the “good faith” rule mechanically. Id. at 13-14. We disagree.

      Roytman did not file suit until just a few days before the statute of

limitations expired, and, according to the docket, made no attempt to serve

within the 30 days mandated by Rule 401(a).         He did have the complaint

reinstated and tried to have it served in December 20, 2013,7 but when that

service was unsuccessful, he waited a year until reinstating the complaint

again and having the complaint served successfully. The record contains no

evidence that Roytman did anything during that intervening year to try to
                       _______________________
(Footnote Continued)

A.2d 224, 227 (Pa. Super. 1994) (sending insurance company’s attorney a
copy of a complaint is not a good faith effort to serve process on the
insured), abrogated on other grounds, McCreesh, 888 A.2d 664;
Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa. Super. 1994) (“We find no
merit in the contention communication between appellant and appellees’
insurance adjuster serves as a substitute for actual service of process”).
Contacting Cesarone’s insurance company did not prevent Roytman from
serving Cesarone with the complaint.
7
  The trial court held that the 2013 attempt at service was ineffective
because the praecipe to reinstate the complaint that Roytman filed on
December 30, 2013 did not contain a “presentation of the original process,”
as required by Rule 401(b)(1), “and therefore was void.” Tr. Ct. Op.,
3/14/16, at 3. We need not reach this issue.


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complete service, and Roytman offers no explanation for the delay. Notably,

the delay in service was not due to an inability to find Cesarone, who

ultimately was served at the same address as the one Roytman listed when

he initially filed the complaint 15 months earlier. Even if the delay in service

was the result of neglect, rather than voluntary misconduct on the part of

Roytman, the record still reflects a failure by Roytman to make a “good-faith

effort” to serve the complaint in a timely way. Bigansky, 658 A.2d at 433-

34.

      Although Roytman complains that it was error for the trial court to

decide this issue on a preliminary objection, without a full factual record,

Roytman never identifies any material facts that would be established by

such a record that are not already apparent from the pleadings and that

could lead to a different result.   In this respect, we may assume that —

contrary to the docket and other evidence in the record — Roytman really

did try unsuccessfully to serve the original complaint within 30 days (the

only fact that appears to be disputed).         There remains absolutely no

explanation of why, after the complaint was reinstated and service was

unsuccessful in January 2014, Roytman waited a year before reinstating the

complaint and trying to serve it again.       In his response to Cesarone’s

preliminary objection, Roytman merely cited the fact that Rule 401(b)(2)

permits reissuance of a complaint “at any time and any number of times.”

Response ¶ 14.    Neither his Response nor his brief to this Court identifies


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any facts that he would prove to justify the one-year dormancy of his

efforts.

      Roytman did make a bare allegation that Cesarone was not prejudiced

by the delay. Response ¶ 17. But where, as here, the trial court finds that

the plaintiff failed to make a good-faith effort to make timely service, proof

of prejudice is unnecessary.    See Englert, 932 A.2d at 125-27 & n.5

(holding that proof of lack of good-faith effort to complete service is

sufficient for dismissal). In McCreesh, a case in which the defendant had

received actual notice of the litigation through service of the complaint, the

Supreme Court held that unless there was a showing of prejudice, late

service would be excused in such cases because the actual notice “satisfied

the purpose of the statute of limitations.” 888 A.2d at 674. As noted, there

was no actual notice here, and there was a delay of a year during which

there was no effort at service at all.   In this situation, no further proof is

required. See Englert, 932 A.2d at 127.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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