J-A18038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA WILKINSON N/K/A MILLER,                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

G. BASS COMPANY,

                        Appellee                   No. 1910 MDA 2015


              Appeal from the Order Entered October 5, 2015
              In the Court of Common Pleas of Berks County
                       Civil Division at No(s): 13-498

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

MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 07, 2016

      Lisa Wilkinson, n/k/a Miller, (“Appellant”), appeals from the order

entered in the Court of Common Pleas of Berks County granting G. Bass

Company’s (“Appellee”) motion for summary judgment and dismissing

Appellee’s complaint sounding in negligence. For the following reasons, we

affirm.

      The lower court provides an apt factual and procedural history as

follows:

      This case stems from a personal injury claim of an alleged trip
      and fall accident. On February 4, 2011, [Appellant] was walking
      to her residence while an oil delivery truck belonging to
      [Appellee] was operating in the area. Appellant alleges that in
      the course of walking to her residence, she had to step over the
      oil delivery hose belonging to Appellee. Appellant alleges that
      while stepping over the oil delivery hose Appellee’s agent caused
      the hose to be moved or pulled in such a manner that the hose
      made contact with Appellant’s feet and legs which resulted in



*Former Justice specially assigned to the Superior Court.
J-A18038-16


      Appellant’s fall and subsequent injuries which are the substance
      of the instant manner.

      Appellant was in communication with Appellee’s insurance
      company within approximately one month of the accident by way
      of telephone. A praecipe to issue a writ of summons was filed on
      January 14, 2013. Attempts at service were made by the
      Sheriff’s Department on January 16, twice, and on January 24,
      2013. A return of no service made was filed on January 28,
      2013.

      Over a year later on February 24, 2014, the writ was reissued
      and Appellee was successfully served on March 10, 2014.
      Appellant filed the Complaint on June 16, 2014. Appellee filed
      the Answer to the Complaint with New Matter on September 28,
      2014.    Appellee subsequently filed a motion for summary
      judgment on July 16, 2015.        [The lower court] held oral
      argument on Appellee’s Motion for Summary Judgment and on
      October 5, 2015, issued an order granting Appellee’s Motion and
      dismissing Appellant’s Complaint with prejudice, which order is
      now the subject of the instant appeal.

Lower Court Opinion, filed January 28, 2016, at 1-2.

      In this timely filed appeal, Appellant presents the following questions

for our consideration:

      1. Where a plaintiff has filed suit and delivered process for
         service and thereby tolled the statute of limitations; and
         where service has been attempted prior to the statute of
         limitations, where the defendant’s representatives had an
         opportunity to take plaintiff’s statements and were given
         medical records prior to commencement of the case, where
         no prejudice has been alleged, and where defendant was
         ultimately served at the address where service was attempted
         before, may a plaintiff be deprived of her right to trial due
         solely to a lapse of time between attempts at re-serving the
         writ?

      2. Where defendant claims that the mode of service or the writ
         was invalid, do the Rules state that it should be raised as a
         Preliminary Objection, and does failure to do so waive such
         objection?

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J-A18038-16



Appellant’s brief at 3.

      With regard to appellate review of a summary judgment, Pennsylvania

law makes clear:

      [W]e are not bound by the trial court's conclusions of law, but
      may reach our own conclusions.         In reviewing a grant of
      summary judgment, the appellate court may disturb the trial
      court's order only upon an error of law or an abuse of discretion.
      The scope of review is plenary and the appellate court applies
      the same standard for summary judgment as the trial court.

McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 941 (Pa.Super.

1998), appeal denied, 743 A.2d 921 (Pa. 1999).           See also Moses v.

T.N.T. Red Star Exp., 725 A.2d 792 (Pa.Super. 1999), appeal denied, 739

A.2d 1058 (Pa. 1999).

      “Judicial discretion requires action in conformity with law on facts and

circumstances before the trial court after hearing and consideration.

Consequently, the court abuses its discretion if, in resolving the issue for

decision, it misapplies the law or exercises its discretion in a manner lacking

reason.”    Devine v. Hutt, 863 A.2d 1160, 1166–67 (Pa.Super. 2004)

(quoting Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super.

2000) (internal citations omitted).    “Summary judgment is proper if an

action is barred by the applicable statute of limitations.” Id. (citing Tohan

v. Owens-Corning Fiberglas Corp., 696 A.2d 1195 (Pa.Super. 1997),

appeal denied, 718 A.2d 786 (Pa. 1998); Brooks v. Sagovia, 431

Pa.Super. 508, 636 A.2d 1201 (Pa.Super. 1994)).




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       Appellant first contends the court erred in ruling that she effectively

failed to toll the statute of limitations when she received a return of “no

service” from the sheriff and then allowed 13 months to pass after the

expiration of the limitations period before having the writ reissued and

serving Appellee.        Her initial attempts1 to serve Appellee within the

limitations period and at the business address where service was eventually

made     demonstrated       good-faith     attempts   to       notify    Appellee   of   the

commencement of litigation, Appellant maintains.                  Decisional law of this

Commonwealth does not support her position.

       The “purpose of any statute of limitations is to expedite litigation and

thus discourage delay and the presentation of stale claims which may greatly

prejudice the defense of such claims.” McCreesh v. City of Philadelphia,

888 A.2d 664, 671 (Pa. 2005) (citation omitted).                        The Rules of Civil

Procedure provide that “[a]n action may be commenced by filing with the

prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.” See
                                                           2
Pa.R.C.P. 1007. The language of Pa.R.C.P. 401,                 moreover, prescribes that


____________________________________________


1
  The record reflects that two attempts at service were made on January 16,
2013 (Sheriff indicating “no answer” at 2:25 p.m. and “Resident . . . said he
didn’t know the business), and one more attempt was made on January 24,
2013 (Sheriff indicating “no answer” at 6:24 p.m., left card). No Service
Return, filed 2/1/13; C.R. #3.
2
   Rule 401. Time for Service. Reissuance, Reinstatement and
Substitution of Original Process. Copies for Service, provides:

(Footnote Continued Next Page)


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J-A18038-16



                       _______________________
(Footnote Continued)

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

      ******

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

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

      (3) A substituted writ may be issued or a substituted complaint
      filed upon praecipe stating that the former writ or complaint has
      been lost or destroyed.

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

      (5) If an action is commenced by writ of summons and a
      complaint is thereafter filed, the plaintiff instead of reissuing the
      writ may treat the complaint as alternative original process and
      as the equivalent for all purposes of a reissued writ, reissued as
      of the date of the filing of the complaint. Thereafter the writ
      may be reissued, or the complaint may be reinstated as the
      equivalent of a reissuance of the writ, and the plaintiff may use
      either the reissued writ or the reinstated complaint as alternative
      original process.

      Note: If the applicable time has passed after the issuance of the
      writ or the filing of the complaint, the writ must be reissued or
      the complaint reinstated to be effective as process. Filing or
      reinstatement or substitution of a complaint which is used as
      alternative process under this subdivision, has been held
(Footnote Continued Next Page)


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J-A18038-16



service shall be made within 30 days after issuance of the writ or complaint,

but it also allows a prothonotary to preserve the validity of the original

process by reissuing the writ or reinstating the complaint at any time and

any number of times.

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

addressed what it perceived as endemic abuses of process by plaintiffs who

tolled the statute of limitations by filing a writ of summons, had the writ

repeatedly reissued, and consciously failed to notify defendants of the suit.

Though technically compliant with the Rules of Civil Procedure, this process

nonetheless undermined the purpose of the statute of limitations, which is to

protect defendants from stale claims. The Court, therefore, held that “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. at 889.   In Farinacci v.

Beaver County Industrial Development Authority, 511 A.2d 757 (Pa.

1986), the Supreme Court subtly modified the wording in Lamp wherein it

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


                       _______________________
(Footnote Continued)

      effective in tolling the statute of limitations as the reissuance or
      substitution of a writ.

Pa.R.C.P. 401.




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J-A18038-16



of commencement of the action.” Id. at 759. These two statements came

to be known as the Lamp–Farinacci rule.

      After   the   intermediate    appellate    courts   offered   discordant

interpretations of what constitutes a good-faith effort under the Lamp-

Farinacci rule—compare, e.g., Teamann v. Zafris, 811 A.2d 52, 63

(Pa.Cmwlth. 2002) (requiring strict compliance with the Rules of Civil

Procedure related to service of process and local practice in order to satisfy

good faith requirement) with Leidich v. Franklin, 575 A.2d 914 (Pa.Super.

1990) (adopting more flexible approach of excusing plaintiffs' initial

procedurally defective service where the defendant has actual notice of the

commencement of litigation and is not otherwise prejudiced)—our Supreme

Court clarified what constitutes a plaintiff’s good faith effort to notify a

defendant of the commencement of an action.        In McCreesh, the plaintiff

had filed a praecipe for a writ of summons within the applicable two-year

statute of limitations.   Id. at 665.   He delivered the writ to the City of

Philadelphia by certified mail. The City acknowledged that it received notice

when a receptionist at the City Law Department signed for the package one

day before the statute of limitations ran. Id.

      Service by certified mail was not technically proper, however, as the

rules required service upon a political subdivision by the sheriff or a

competent adult, and by handing a copy to an agent duly authorized by the

political subdivision to receive service of process.   Id. at 667 & nn. 5, 6

(quoting, inter alia, Pa.R.C.P. No. 400.1). Three months later, the plaintiff

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J-A18038-16



filed his complaint, requested reissuance of the writ of summons, and

properly served both on the City. Id. The City filed preliminary objections

contesting service of the original writ.   The plaintiff maintained that the

original writ was served in compliance with the rules, arguing that delivery of

the writ by a postal worker constituted service by a competent adult.

      The Court held that plaintiff satisfied his obligation to make good-faith

effort to give notice of commencement of action when defendants received

actual notice of the commencement of litigation and are not otherwise

prejudiced, abrogating that line of cases requiring strict compliance with the

rules of civil procedure:

      Upon review of these cases, we conclude that the rigid
      compliance requirement of the Teamann line of cases is
      incompatible with the plain language of Rule 401, the spirit of
      Lamp, and the admonition of Rule 126 to construe liberally the
      rules of procedure so long as the deviation does not affect the
      substantial rights of the parties.    In Lamp, we sought to
      alleviate the hardships caused by plaintiffs who exploited the
      rules of civil procedure to make an end run around the statutes
      of limitations.

      Neither our cases nor our rules contemplate punishing a plaintiff
      for technical missteps where he has satisfied the purpose of the
      statute of limitations by supplying a defendant with actual
      notice. Therefore, we embrace the logic of the Leidich line of
      cases, which, applying Lamp, would dismiss only those claims
      where plaintiffs have demonstrated an intent to stall the judicial
      machinery or where plaintiffs' failure to comply with the Rules of
      Civil Procedure has prejudiced defendant.

McCreesh, 888 A.2d at 674 (emphasis added).

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

(Pa.Super. 2007), a panel of this Court identified an absence of good faith

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J-A18038-16



effort where plaintiffs’ counsel allowed six months to pass—taking the case

beyond the statute of limitations period—before ascertaining that Sheriff’s

service had not been effected. The trial court had dismissed the case under

Lamp, we affirmed, and our Supreme Court remanded for reconsideration

under McCreesh.      On remand, we again affirmed the trial court's order

granting summary judgment in favor of defendant.        As in the case sub

judice, the plaintiffs brought their action against the defendant corporation

within the statute of limitations, but the Sheriff unsuccessfully attempted

service at the defendant’s purported business address and sent plaintiffs'

counsel a return indicating no service was made.          Plaintiffs' counsel,

however, had recently 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.

      Six months later, plaintiffs received an inquiry from the defendant’s

insurance carrier as to whether they intended to “make a claim” for their

injuries, as the statute of limitations would run in two weeks and preclude

them from making a claim.       Counsel, meanwhile, obtained a copy of the

Sheriff’s return that same month and filed a praecipe to reissue the writ six

days after the statute of limitations expired.   Service was effected soon

afterward.

      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

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J-A18038-16



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. We, therefore,

discerned in Englert a lack of good faith efforts to serve process therein.

Our decision rested on the lawyer's failure to determine if service was made

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

      Here, the case against a good faith effort is even stronger than in

Englert, for Appellant received the “no service” return from the Sherriff and

still allowed 13 months—all after the limitations period had run—to transpire

before she sought reissuance of the writ and successfully served it upon

Appellee. As in Englert, we find that such knowing inaction demonstrates

an inexcusable intent to stall the judicial machinery and, accordingly,

precludes finding Appellant made a good faith effort consistent with

Supreme Court precedent.

      We next address Appellant’s contention that Appellee waived its

statute of limitations-based challenge by raising it in a New Matter rather

than in Preliminary Objections.   Pennsylvania Rule of Civil Procedure 1030

provides, with exceptions inapplicable to this case, as follows:

      [A]ll affirmative defenses including but not limited to the
      defenses of accord and satisfaction, arbitration and award,
      consent, discharge in bankruptcy, duress, estoppel, failure of

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J-A18038-16


       consideration, fair comment, fraud, illegality, immunity from
       suit, impossibility of performance, justification, laches, license,
       payment, privilege, release, res judicata, statute of frauds,
       statute of limitations, truth and waiver shall be pleaded in a
       responsive pleading under the heading “New Matter[.”]

Pa.R.C.P. 1030 (emphasis added).               Under our rules, therefore, a plaintiff

raising the affirmative defense of statute of limitations must do so in an

Answer and New Matter.

       Notwithstanding this procedural mandate, Appellant cites succinctly to

decisional law as standing for the proposition that “where a defendant files

an answer to the complaint objections to validity of the service ultimately

effected are waived.”       Appellant’s brief at 8, citing Cinque v. Asare, 585

A.2d 490, 492 (Pa.Super. 1990). We disagree.3

       In qualifying the rules pertaining to the tolling of the statute of

limitations, Lamp held that failure to promptly notify defendants results in

nullification of the commencement of the action.               Id. at 889; see also

Moses, 725 A.2d at 797 (finding absence of a good-faith effort to serve

defendant nullifies both the commencement of the action and the tolling of

the statute of limitations).       Therefore, to toll the statute of limitations, a

plaintiff must ultimately make a good-faith effort to serve the complaint in a
____________________________________________


3
   We distinguish Cinque on its facts, where the plaintiff in that case filed a
timely complaint, the defendants—having received actual notice—filed an
answer, and the parties engaged in two years of discovery before defendants
alleged defective service. We rejected defendant’s arguments and held that
they had waived any “defective service” or statute of limitations arguments
by answering the complaint and subsequently engaging in two years of
litigation prior to the challenge. Id. at 491.



                                          - 11 -
J-A18038-16



timely manner.    Devine, 863 A.2d at 1167–68.          See also Ramsay v.

Pierre, 822 A.2d 85, 90 (Pa.Super. 2003) (recognizing filing complaint tolls

statute of limitations, provided that plaintiff attempts to effect [timely]

service).

      In Devine, we addressed the appropriate filing by which to challenge

the failure to toll the statute of limitations with a good-faith service of

process:

      The existence of a statute of limitation which cuts off a remedy
      does not constitute a defect in the “form of service.”
      Farinacci [ ] (emphasis added). Thus, an affirmative defense of
      a statute of limitations is not properly raised in preliminary
      objections; it is properly raised in new matter. Id.; Pa.R.C.P.
      1028; 1030. Additionally, a statute of limitations affirmative
      defense cannot be raised in preliminary objections in the nature
      of a demurrer, unless the particular statute of limitations is
      nonwaivable. Reuben v. O'Brien, 299 Pa.Super. 372, 445 A.2d
      801 (1982). When a defendant raises a waivable statute of
      limitations 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. Farinacci[ ]; Pa.R.C.P. 1028(a)(2).

      Whether the statute of limitations has run on a claim is generally
      a question of law for the trial judge. Id. The filing of a praecipe
      for a writ of summons [or a complaint] to commence an action is
      sufficient to toll the running of the statute of limitations, if the
      plaintiff makes a good faith effort to serve the writ or complaint
      in compliance with the other applicable rules of court. Lamp,
      supra. 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. Shackelford v.
      Chester County Hosp., 456 Pa.Super. 356, 690 A.2d 732
      (1997) (citing Beck v. Minestrella, 264 Pa.Super. 609, 401
      A.2d 762 (1979) (stating issuance and delivery of writ for



                                     - 12 -
J-A18038-16


       service keeps action alive for period equal to original period as
       measured from the filing date of writ)).

Devine at 1167–68 (emphasis in original).          See also Daniel v. City of

Philadelphia, 86 A.3d 955, 956-58 (Pa.Cmwlth 2014) (holding statute of

limitations defense properly raised in New Matter rather than preliminary

objections where lack of good faith effort to serve complaint after statute of

limitations had run).4

       Under this precedent, Appellant failed to toll the statute of limitations

with her timely commencement of litigation because she failed to make a

good faith effort to notify Appellee of the suit long after the limitations

period had expired.        We, therefore, find Appellee appropriately raised a

limitations-based affirmative defense in its New Matter, and we affirm the

order granting Appellee’s motion for summary judgment.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




____________________________________________


4
 Though not binding upon this Court, the decision of the Commonwealth
Court is instructive on the present issue.



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