J-A28032-19

                                  2019 PA Super 367


    SHARON FRICK, INDIVIDUALLY AND  :                   IN THE SUPERIOR COURT OF
    AS ADMINISTRATRIX OF THE ESTATE :                        PENNSYLVANIA
    OF TODD FRICK, DECEASED         :
                                    :
                                    :
               v.                   :
                                    :
                                    :
    FUHAI LI, M.D., NEUROLOGY AND   :                   No. 927 EDA 2019
    PAIN MANAGEMENT CENTER, PC, Y.  :
    BARRY KURTZER, M.D., AND        :
    GREENTOWN MEDICAL               :
    ASSOCIATES, PC                  :
                                    :
                                    :
    APPEAL OF: FUHAI LI, M.D. AND   :
    NEURLOGY AND PAIN MANAGEMENT :
    CENTER, PC                      :

                 Appeal from the Order Entered March 8, 2019
      In the Court of Common Pleas of Pike County Civil Division at No(s):
                                  547-2017


BEFORE:      PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                              FILED DECEMBER 23, 2019

        Defendants Fuhai Li, M.D., and Neurology and Pain Management Center,

PC (hereinafter collectively “Appellants”) appeal from the Order entered in the

Court of Common Pleas of Pike County on March 8, 2019, overruling in their

entirety Appellants’ Preliminary Objections, and in particular their Motion to

Dismiss for Failure to Serve Complaint contained therein, to the Fourth

Amended       Complaint     of   Plaintiff     Sharon    Frick,   Individually   and   as

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-A28032-19



Administratrix of the estate of Todd Frick, deceased (hereinafter “Appellee”).

Following a careful review, we affirm.1

       The trial court set forth the relevant facts and brief procedural history

herein in its Opinion Submitted Pursuant to Pennsylvania Rule of Appellate

Procedure 1925 as follows:

              [Appellee] initiated this case by filing a Writ of Summons on
       April 27, 2017. [Appellee] is asserting a professional liability claim
       against Fuhai Li, M.D. ("Defendant Li"). [Appellee] avers that
       Defendant Li was in charge of or responsible for the decedent and
       [Appellee’s] husband, Todd Frick. [Appellee] avers that her
       husband was being treated at Defendant Li's facility for chronic
       pain treatment and/or neurological medical needs. [Appellee]
       avers that her husband had a history of back pain associated with
       bulging or herniated discs. [Appellee] avers that Defendant Li
       prescribed certain medications to her husband, including but not
       limited to: Vicodin, Morphine, Flexeril, Hydrocodone, Contin, and
       Oxycodone. [Appellee] avers that Defendant Li directly, through
       various acts and omissions, caused [Appellee’s] husband to
____________________________________________


1   Pa.R.A.P. 311(b) reads, in pertinent part, as follows:

       (a) General rule. – An appeal may be taken as of right and
       without reference to Pa.R.A.P. 341(c) from: . . .
       (b) Order sustaining venue or personal or in rem jurisdiction.-
       An appeal may be taken as of right from an order in a civil action
       or proceeding sustaining the venue of the matter or jurisdiction
       over the person or over real or personal property if: . . .
             (2) the court states in the order that a substantial issue of
       venue or jurisdiction is presented.

Pa.R.A.P. 311(b).

       In its March 8, 2019, Order, the trial court granted Appellants’ Motion
for Amendment of its June 6, 2018, Order and amended the same to include
the following language required by Pa.R.A.P. 311(b)(2) so as to permit an
interlocutory appeal as of right: “A substantial issue of venue or jurisdiction
is presented.”


                                           -2-
J-A28032-19


     become addicted to the prescribed controlled substances and
     breached the standards of care in his professional field.
     [Appellee’s] husband died on May 1, 2015.
           [Appellee] filed a Praecipe for Writ of Summons on April 27,
     2017. Attorney Kevin P. Milazzo, counsel for Defendant Li, filed
     both an entry of appearance and a Praecipe to Rule Plaintiff to File
     Complaint on May 23, 2017. The initial Complaint in this matter
     was filed on June 14, 2017, and the controlling Fourth Amended
     Complaint was filed on December 4, 2017. [Appellants] filed
     Preliminary Objections to [Appellee’s] Fourth Amended Complaint
     on December 21, 2017. This [c]ourt deferred a ruling on the
     Preliminary Objections until we issued a ruling on Defendant Li’s
     Motion to Dismiss, which was filed on December 7, 2017.
           We denied the Motion to Dismiss on June 6, 2018. We
     determined that [Appellee] had engaged in a good faith attempt
     to serve Defendant Li and to move this case forward and that
     [Appellee] had demonstrated that her efforts at service were
     reasonable. On December 13, 2018, [Appellants] filed a Motion
     for Amendment of the Order dated June 6, 2018.
           On March 8, 2019, we granted the Motion for Amendment.
     We noted in our Order:

         “While we stand by our Order denying [Appellants’]
         Motion to Dismiss, we nevertheless recognize that
         [Appellants] have presented a substantial issue of
         jurisdiction and are entitled to interlocutory appeal. As
         noted by our Supreme Court, “It is extremely unlikely
         that the loser court will find it likely that its Order will be
         reversed on the merits. On the other hand, there are
         ample instances when the loser tribunal could find that
         the appellant has presented a substantial case on the
         merits even though it disagrees.” Pennsylvania Public
         Util. Commission v. Process Gas Consumers Group, 467
         A.2d 805, 809 (Pa. 1983).                We recognize that
         [Appellants] have presented a substantial question of
         jurisdiction even though we may disagree with
         [Appellants’] ultimate conclusion.

           On March 20, 2019, [Appellants] filed a Notice of Appeal to
     the Superior Court as to this [c]ourt’s Order dated March 8, 2019
     amending the Order of June 6, 2018. On March 21, 2019, this
     [c]ourt ordered that [ ] Appellants file a Concise Statement of
     Matters Complained of on Appeal within twenty-one (21) days


                                     -3-
J-A28032-19


      from the date of the Order.      [ ] Appellants filed their Concise
      Statement on April 10, 2019.

Trial Court Opinion filed 5/16/19, at 1-3.

      In their concise statement of errors complained of on appeal, Appellants

raise seven (7) claims, each of which pertains to service. In their appellate

brief, Appellants present a single issue for this Court’s review:

            Whether the [t]rial [c]ourt erred/abused its discretion in
      denying [Appellants’] Motion to Dismiss the case against them for
      lack of service, where [Appellee] did not make “good faith efforts”
      to serve them for eight months after the statute of limitations had
      expired; where [Appellee] persistently attempted service at a
      wrong address during that time, and never tried to serve
      Appellants at an address that she herself recited in her five
      complaints, and that was conspicuously marked with [Appellants’]
      names; and where [Appellants] put [Appellee] on notice of lack of
      service in five sets of Preliminary Objections?

Brief of Appellant at 4.

      This Court’s standard of review of a trial court’s order denying

preliminary objections is well-settled: we will reverse the trial court's decision

regarding preliminary objections only where there has been an error of law or

abuse of discretion. When sustaining the trial court's ruling will result in the

denial of a claim or dismissal of a suit, preliminary objections will be sustained

only where the case is free and clear of doubt.       Brosovic v. Nationwide

Mutual Insurance, 841 A.2d 1071, 1073 (Pa.Super. 2004) (citation

omitted).   “An abuse of discretion may not be found merely because [this

Court] might have reached a different conclusion, but requires a showing of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such


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J-A28032-19


lack of support as to be clearly erroneous.” Hoy v. Angelone, 544 Pa. 134,

148, 720 A.2d 745, 752 (1998) (citation omitted). “It is not an abuse of the

trial court's discretion to enforce the rules of civil procedure, even when the

result has a serious adverse effect on the party violating the rules[.]” Paden

v. Baker Concrete Construction, 540 Pa. 409, 414, 658 A.2d 341, 344

(1995).

       A defendant may file a preliminary objection on the basis that the

plaintiff did not serve the complaint properly. Pa.R.C.P. 1028.

       When a defendant challenges the court's assertion of personal
       jurisdiction, that defendant bears the burden of supporting such
       objections to jurisdiction by presenting evidence. The burden of
       proof only shifts to the plaintiff after the defendant has presented
       affidavits or other evidence in support of its preliminary objections
       challenging jurisdiction.

Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa.Super. 2015).

(quotation marks and citations omitted). The defendant's burden may be met

by filing verified preliminary objections. Gall v. Hammer, 617 A.2d 23, 24

(Pa.Super. 1992).

       While the Pennsylvania Rules of Civil Procedure require that original

process be served within thirty days of the filing of a complaint, see Pa.R.C.P.

401(a), a complaint may be reinstated “at any time and any number of times.”

Pa.R.C.P. 401(b)(2).2 However, while the mere filing of a complaint is

____________________________________________


2In addition, Pennsylvania Rule of Civil Procedure 405 addresses non-service
of original process as follows:



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J-A28032-19


sufficient to toll an applicable statute of limitations, such an action does not

preserve claims in perpetuity. See Lamp v. Heyman, 469 Pa. 465, 471, 478,

366 A.2d 882, 885, 889 (1976). For a complaint to remain effective, a plaintiff

must “refrain [ ] from a course of conduct which serves to stall in its tracks

the legal machinery he has just set in motion.” Id., at 478, 366 A.2d at 889

(footnote omitted). Further, “a plaintiff should comply with local practice as

to the delivery of the [complaint] to the sheriff for service.” Id.

       “Lamp requires of plaintiffs a good-faith effort to effectuate notice of

commencement of the action.” Farinacci v. Beaver County Industrial

Development Authority, 510 Pa. 589, 593, 511 A.2d 757, 759 (1986).



____________________________________________




       (a)    When service of original process has been made the sheriff
              or other person making service shall make a return of
              service forthwith. 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.

                                    ***
       (e) The return of service or of no service shall be filed with the
       prothonotary.

                                       ***
       (g) The sheriff upon filing a return of service or of no service shall
       notify by ordinary mail the party requesting service to be made
       that service has or has not been made upon a named party.
       Pa.R.C.P. 405(a), (e), (g). In other words, notice of service or
       non-service must be promptly filed. Id.; see also Pa.R.C.P. 401
       (stating that original process must be served within thirty days
       after issuance of the writ).


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J-A28032-19


Significantly, simple neglect or a plaintiff’s 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; thus, it is not necessary for

a plaintiff's conduct to constitute bad faith or an overt attempt to delay before

the rule of Lamp will apply. Bigansky v. Thomas Jefferson University

Hosp., 658 A.2d 423, 434 (Pa.Super. 1995), appeal denied, 668 A.2d 1119

(Pa. 1995).

      What constitutes a “good faith” effort to serve legal process is a matter

to be assessed on a case-by-case basis. Moses v. T.N.T. Red Star Exp.,

725 A.2d 792, 796 (Pa.Super. 1999), appeal denied, 739 A.2d 1058 (1999);

see also Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122, 124-

25 (Pa.Super. 2007) (stating that “[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 [to effectuate service] were

reasonable.”); accord McCreesh v. City of Philadelphia, 585 Pa. 211, 224,

888 A.2d 664, 672 (2005). “In each case, where noncompliance with Lamp

is alleged, the court must determine in its sound discretion whether a good-

faith effort to effectuate notice was made.” Id.      To this end, “evidentiary

determinations are required.” Id.

      In McCreesh, our Supreme Court further clarified Lamp by specifying

that where a defendant has actual notice of an action, dismissal for lack of

service will be appropriate “where plaintiffs have demonstrated an intent to


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J-A28032-19


stall the judicial machinery or where plaintiffs’ failure to comply with the Rules

of Civil Procedure has prejudiced defendant.” McCreesh at 227, 888 A.2d at

674. Therefore, McCreesh couches its language under the presumption that

a plaintiff has supplied a defendant with actual notice. Id. “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.”     The determination as to whether a plaintiff

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

672.

       Later, in Englert, supra, this Court established that mere notice from

a plaintiff to a putative defendant that there was a potential for litigation was

insufficient under McCreesh. Englert, 932 A.2d at 127. In that case, the

plaintiffs filed a praecipe for writ of summons, and service was attempted but

never effectuated. Id. at 126. After five months of inactivity, the plaintiffs

were notified by defendants’ insurance company that the statute of limitations

would expire, and approximately two weeks after that notice, the statute of

limitations expired prior to service being effectuated. Id. Quoting McCreesh,

this Court found that the appellant’s inaction had “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, citing McCreesh at 227,

888 A.2d at 674.      We concluded that an inordinate amount of time had

elapsed without any effort to perfect service, actual notice of the


                                       -8-
J-A28032-19


commencement of litigation had not been provided within the applicable

statute of limitations, and the trial court did not abuse its discretion by

granting summary judgment in favor of the defendant. Id., at 127-28.

      In addition, in Ferrara v. Hoover, 636 A.2d 1151 (Pa.Super. 1994),

the plaintiff filed a writ of summons but did not serve it contemporaneously

on the defendants. The plaintiff ultimately reissued the writ and served the

same six months later, after the statute of limitations had expired. The

defendants succeeded in dismissing the lawsuit based on untimely service. Id.

at 1151-52. The plaintiff appealed, arguing that when he filed the writ initially,

he assumed the prothonotary would forward it to the sheriff for service.” Id

at 1152. Insisting he did not act in bad faith, plaintiff asserted that because

either the sheriff or the prothonotary had been at fault, the trial court erred

in dismissing the lawsuit. Id. The trial court disagreed and held that although

the plaintiff's “counsel did not actively attempt to thwart service of the writ,

he also did not take any affirmative action to see that the writ was served and

to put the defendant[s] on notice that an action had been filed against

[them.]” Id.

      Instantly, because Appellants filed verified preliminary objections, the

burden shifted to Appellee to establish that she made a good faith, reasonable

effort to effectuate service. See McCreesh, 888 A.2d at 672; Englert, 932




                                      -9-
J-A28032-19


A.2d at 124-25.3 Appellants assert that contrary to the trial court’s decision,

Appellee did not satisfy Lamp and its progeny to do so. Appellants maintain

that Appellee persistently and unsuccessfully attempted service for more than

eight months at an address and waited for over seven months to ask the trial

court to permit alternative service, although she was aware of an alternative

address where Appellants could be found and served. Brief of Appellant at 27.

As a result of the alleged intentional delay in perfecting service, Appellants

posit the trial court erred and/or abused its discretion in refusing to dismiss

the instant matter with prejudice for lack of service. Id. at 31.

       Following a hearing held on March 26, 2018, the trial court entered its

June 6, 2018, Order denying Appellant’s Motion to Dismiss. In doing so, the

court determined that Appellee had demonstrated good faith efforts to serve

Appellants with the Complaint.




____________________________________________


3 Counsel for Appellants filed a “Praecipe for Entry of Appearance and Jury
Trial Demand” which is dated May 23, 2017, and time-stamped June 7, 2017.
They served the same on counsel for Appellee and for co-Defendant on May
23, 2017; 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, this
Court expressly has stated that, “[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).



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J-A28032-19


     In its Rule 1925(a) Opinion, the trial court further clarified the reasoning

underlying its June 6, 2018, Order as follows:

            We extensively analyzed the body of case law that had been
     developed on this issue in our June 6, 2018, Order. See Lamp v.
     Heyman, 366 A.2d 882 (Pa. 1976; Farinacci v. Beaver County
     Industrial Development Authority, 511 A.2d 757 (Pa. 1986);
     Moses v. T.N.T. Red Star Exp., 725 A.2d 792 (Pa.Super. 1999)[;]
     Witherspoon v. City of Philadelphia, 564 Pa. 388 (Pa. 1999);
     McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), and;
     Johnson v. Austin, 2017 Pa.Super. Unpub. LEXIS 1501.
            The relevant facts in this case allowed us to determine that
     [Appellee] demonstrated good faith efforts to serve Defendant Li
     with the Complaint. The Writ of Summons was initially filed on
     April 27, 2017. [Appellee] provided documentation showing that
     the Monroe County Sheriff’s Office attempted to serve Defendant
     Li five (5) times between April 22, 2017 and May 22, 2017. See
     Exhibit B to Motion to Dismiss. [Appellee] provided proof that the
     Writ of Summons was reinstated several times over the course of
     this case, that she attempted to serve Defendant Li with the
     multiple Amended Complaints through the Pike County Sheriff’s
     Office, and that counsel attempted to confirm service with both
     the Pike County and Monroe County Sheriff’s Offices. See Exhibits
     D, E, and F to Motion to Dismiss. [Appellee] also received a
     completed change of address form from the postmaster for East
     Stroudsburg which indicated that [Appellee] was serving
     Defendant Li at the correct address. See Exhibit G to Motion to
     Dismiss. Finally, we engaged in an analysis of the relevant case
     law in comparison to the facts of this case at page 6 of our June
     6, 2018[,] Order:

          “Unlike in Lamp, [Appellee] did not instruct the Pike
          County Prothonotary to issue the writ but not to deliver
          it to the sheriff. It is not averred that [Appellee] was
          careless or simply forgot to take the necessary steps in
          order to effectuate service as in Farinacci. Unlike in
          Moses,      [Appellee]    has   demonstrated     through
          documentation that he has attempted to serve
          [Appellant]. [Appellee] was attempting to effectuate
          service upon Defendant Li through public officials rather
          than a private process server in Witherspoon. As in
          McCreesh, we do not find that Defendant Li has
          sufficiently demonstrated any prejudice to him, again

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J-A28032-19


            noting that [Appellee] has not attempted to stall the
            judicial machinery since commencing this action.
            Finally, the facts of this case are clearly not analogous
            to Johnson, in which counsel hired a private investigator
            but neglected to maintain contact with him.”

              We ultimately determined, pursuant to our discretion as the
       trial court, that [Appellee] did not attempt to stall this case from
       moving forward nor w[ere] [Appellants] prejudiced in this matter.
       Therefore, we respectfully request that the Superior Court find
       that this [c]ourt did not err or abuse its discretion in denying the
       Motion to Dismiss for Failure to Serve Complaint.

Trial Court Opinion, filed 5/16/19, at 4-5 (unnumbered).

       Following our review of the entire record, we agree that the facts of this

case do not support dismissal. Appellee initiated the instant lawsuit sounding

in medical negligence by filing a writ of summons against Appellants on April

27, 2017, which tolled the statute of limitations.4 On June 14, 2017, Appellee

filed the initial complaint, and filed her Fourth Amended Complaint on

December 4, 2017. A Sheriff Service Process Receipt form and an Affidavit of

Return filed on June 28, 2017, reflect that in the interim, Sheriff Service was

attempted upon Appellants five (5) times with no contact or response to

business cards left by the Sheriff.            In addition, Appellee filed numerous

praecipes to reissue the Writ of Summons and the Complaint between the first




____________________________________________


4 The statute of limitations for medical malpractice and wrongful death actions
in Pennsylvania is two years. 42 Pa.C.S.A. § 5524. Appellee’s decedent died
on May 1, 2015, and according to Appellee his death was caused by the
negligent actions of Dr. Li; therefore, the statute of limitations would have
expired on May 1, 2017.

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J-A28032-19


filing the complaint on April 27, 2017, and its fourth amended version on

December 4, 2017.

      Also on December 4, 2017, Appellee filed a Motion for a Special Order

for Alternative Service.   Therein, she explained that although the Monroe

County Sheriff’s Office Affidavit of Return was affirmed on May 26, 2017, it

was not mailed to counsel until June 28, 2017, and was received on July 3,

2017. See Motion at ¶ 5. Appellee then chronicled the dates upon which the

complaints and preliminary objections thereto were filed along with her

attempts to perfect service.    Id. at ¶¶ 8-20.     Appellee indicated that the

Monroe County Sheriff’s Service Affidavit of Return form dated September 20,

2017, was sent to counsel on October 3, 2017. Appellee explained that the

Postmaster for the East Stroudsburg post office thereafter returned a

completed Change of Address Request form that indicated no new address for

Defendant Li other than what Appellee believed to be Defendant Li’s current

and only known address. Id. at 20-22.

      At the argument held on March 26, 2018, counsel for Appellee explained

the reasoning behind the steps he took to effectuate service of the complaint

as follows:

             [Appellants’ counsel] asked me why service wasn’t
      attempted at apparently what is a business address of Dr. Li’s in
      Pike County. First of all, the Rules of Service don’t require multiple
      addresses to be attempted for service including a business
      address. I believe it is a permissive Rule that may be used. But
      my information, based on the due diligence that was engaged in
      was that Dr. Li was subject to a Federal Indictment regarding his
      ability to practice law- I’m sorry practice medicine; that his right

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J-A28032-19


     to issue prescriptions by the federal government had been
     revoked. It was my understanding that he was not engaged in
     the practice of medicine anymore. Similarly, there is also no
     guarantee that attempts of service at this address that is being
     referenced would have even been effective. For whatever reason,
     he may not have been practicing. He may not have been seeing
     patients there. Due diligence was performed. We had a good
     address for him. There is still no explanation as to why service
     could not have been effectuated or was not effectuated at the
     address that was being attempted. It is on the record. It is
     referenced by the Movant that Dr. Li was in receipts of the Sheriff’s
     card which was left for him presumably every time service was
     attempted and that he then had to call. He knew about the law
     suit. Attorneys entered their appearance shortly after the first
     attempts at service and as my opposition stated multiple filings
     were made. The entry of appearance, a Rule to Show Cause filed
     the Complaint, several rounds of Preliminary Objections. So to
     take the position that Dr. Li needed to know if he was in or if he
     was out; it is quite clear that he was in. There was never a
     conversation about dropping him from the caption as a named
     Defendant. They knew attempts were being made of service.
     Relative to the attempts at service there was never any delay or
     dragging of the feet or attempts to stall the judicial machinery as
     the majority opinion came down in the Lamp versus Heyman case.
     The very day that the Writ was filed timely I personally walked
     across the street to request that the Sheriff’s Office perform- serve
     the Writ on Dr. Li. In Lamp versus Heyman I think there was
     eighteen months that went by with the file on hold. And the other
     cases are distinguishable as well.
            In Ferinacci the Writ was not sent to the Sheriff for service
     until almost forty days later.
            In Moses more than five months elapsed before either a
     Praecipe was filed or service was attempted.
            In the instant case Your Honor like I just said I personally
     delivered the Writ for Service to the Sheriff’s Office. As soon as I
     found out- as soon as the Affidavit of Attempted Service was
     returned from Pike County we performed further due diligence and
     asked that they re-serve it. We reinstated the Writ and later on
     the Complaint after the Complaint was filed timely pursuant to
     Rule 401(b)(2) and 401(b)(5).
            If I had requested relief from Your Honor of Filing a Motion
     for Alternative Service after that first attempt, I feel like that
     would have been denied. I feel like it wasn’t ripe at that point in
     time. I feel like it wasn’t timely. Therefore, I made further

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J-A28032-19


      attempts at service including asking Pike County to again deputize
      Monroe County to serve Dr. Li at that address I had because
      nothing came back that that wasn’t a good address. It wasn’t that
      it was an abandoned house. It wasn’t that it was a commercial
      property where nobody would be at a regular basis. It came back
      that simply after several attempts they could not find him. They
      could not locate him, but that a card had been left. I never got a
      response back from opposing counsel saying that you know, Dr.
      Li did not have the card. The cases make clear that what it comes
      down to is not notice on the [p]laintiff’s part that their [sic]
      attempts of service have not been effective.         It’s, did the
      Defendant have notice of the Claim? That’s what ultimately the
      underlying basis for the Lamp and its progeny decisions are.

                                       ***

            Additionally, this would be a very penal and prejudicial
      result should the [c]ourt grant [Appellants’] Motion. And very
      prejudicial to [Appellee] while on the flip side there is not prejudice
      to [Appellants]. [Defendant Li] has been represented. He has
      known he has been involved in this law suit the entire time. They
      have vigorously defended him by filing multiple [m]otions;
      [m]otion after [m]otion, [p]reliminary [o]bjections.

Hearing, 3/26/18, at 14-19.

      As our Supreme Court held in McCreesh, supra, 888 A.2d at 674, 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” should be dismissed.           In light of the

foregoing, there is no evidence that Appellee’s delay in effecting service was

done with “an intent to stall the judicial machinery.” See also Lamp, supra.

      Additionally, Appellants have not demonstrated prejudice in this case,

for counsel admitted to the trial court that Defendant Li was aware of the

lawsuit and that counsel was actively filing preliminary objections and


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J-A28032-19


discussing the case with Defendant Li throughout the proceeding. Id. at 12.

Thus, we find that the trial court did not err or abuse its discretion in denying

Appellants’ Motion to Dismiss for Failure to Serve Complaint raised in their

Preliminary Objections to Appellee’s Fourth Amended Complaint.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/19




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