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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARILYN RIGMAIDEN DELEON                 :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                   Appellant              :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ALYSSA DESTEFANO                         :   No. 2683 EDA 2017

                Appeal from the Order Entered July 13, 2017
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): February Term, 2016 No. 4057


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.:                            FILED APRIL 30, 2019

     Marilyn Rigmaiden Deleon challenges the order that granted Appellee,

Alyssa Destefano’s, motion for summary judgment in this motor vehicle

accident case. We affirm.

     As recounted by the trial court:

     On February 26, 2016, [Appellant] commenced a personal injury
     action arising from a car accident that occurred on February 28,
     2014. On April 14, 2016, [Appellant’s] process server made an
     unsuccessful attempt to serve the writ. Nothing in the record
     indicates that service was attempted before April 14, 2016.

     On October 17, 2016, [Appellant] filed a complaint. [Appellee],
     in her answer to the complaint, defended the action on the basis
     that the statute of limitations had expired before original service
     of process was made. On April 10, 2017, [Appellee] filed a motion
     for judgment on the pleadings. She argued that [Appellant] failed
     to toll the statute of limitations by not making a good faith effort
     to obtain original service of process within 30 days after the filing
     of the writ. The [c]ourt denied the motion and, on May 12, 2017,
     [Appellee] filed a motion for summary judgment making
     substantially the same argument.             The [c]ourt granted
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      [Appellee’s] motion for summary judgment and [Appellant] timely
      appealed the [c]ourt’s decision to the Superior Court.

Trial Court Opinion, filed 6/5/18, at 1-2 (citations omitted).

      Appellant filed a one-count complaint alleging negligence against

Appellee.   In granting Appellee’s motion for summary judgment, the court

“dismissed the action because no good faith effort was made to timely serve

[Appellee] before the applicable statute of limitations expired.”    Id., at 1.

While Appellant initiated her personal injury action by filing a praecipe for a

writ of summons on February 26, 2016, the court concluded, “[a]n attempt to

affect [sic] service was made on April 14, 2016 – nearly seven weeks after

[Appellant] filed her writ and the [two-year] statute of limitations had expired

[on February 28, 2016].” Id., at 3-4.

      Moreover, there was nothing in the record to demonstrate “any effort,

good faith or otherwise, to affect [sic] service before April 14, 2016,” nor was

there “any indication that [Appellee] had actual notice of the personal injury

action against her.”   Id., at 4.   Accordingly, Appellant “failed to meet her

burden to show service was attempted in good faith within 30 days of filing of

the writ of summons.” Id.; see also Witherspoon v. City of Phila., 768

A.2d 1079, 1083 (Pa. 2001)(establishing that, at a minimum, a party must

evince a good-faith attempt at service of a writ “as a kind of condition

subsequent that must be fulfilled to complete the commencement of the

action”); Pa.R.C.P. 401(a)(providing that “[o]riginal process shall be served …

within thirty days after the issuance of the writ”). Appellant timely appealed

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the court’s grant of summary judgment, and this matter is now properly before

us.

      Preliminarily, Appellant’s brief violates Pa.R.A.P. 2119(a), which

mandates that an “argument shall be divided into as many parts as there are

questions to be argued.” Although it contains more than one question to be

argued, Appellant’s brief features only one undivided argument section.

However, under these circumstances, this failure does not affect our ability to

address Appellant’s arguments.       We therefore decline to find the issues

waived.

      Appellant contends the trial court erred in granting summary judgment

for two reasons: 1) Appellant asserts she utilized good-faith efforts to serve

Appellee, but Appellee’s insurance company refused to provide Appellee’s

address; and 2) the court violated the coordinate jurisdiction rule.         See

Appellant’s Brief, at 6.   Specifically, as to the latter argument, Appellant

asserts that the coordinate jurisdiction rule prohibited the court from revisiting

the statute of limitations issue on summary judgment after addressing it in

the motion for judgment on the pleadings.

      We review challenges to the entry of summary judgment as follows:

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused its
      discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and

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      the moving party is entitled to relief as a matter of law, summary
      judgment may be entered. Where the nonmoving party bears the
      burden of proof on an issue, he may not merely rely on his
      pleadings or answers in order to survive summary judgment.
      Failure of a non-moving party to adduce sufficient evidence on an
      issue essential to his case and on which he bears the burden of
      proof establishes the entitlement of the moving party to judgment
      as a matter of law. Lastly, we will review the record in the light
      most favorable to the nonmoving party, and all doubts as to the
      existence of a genuine issue of material fact must be resolved
      against the moving party.

E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super.

2013) (citation omitted).

      Appellant first avers that the court abused its discretion by concluding

that Appellant had failed to adduce any evidence to support a finding that she

had made a good faith effort to effectuate service of the writ on Appellee

within thirty days after the writ’s issuance. It is unrefuted that: 1) February

28, 2014, is the date of the car accident alleged in Appellant’s complaint; 2)

the statute of limitations for Appellant’s cause of action, absent any kind of

tolling, ran on February 28, 2016, exactly two years after the car accident

occurred, see 42 Pa.C.S.A. § 5524(2); 3) Appellant filed her praecipe for a

writ of summons on February 26, 2016, two days prior to the expiration of the

statute of limitations; and 4) on April 14, 2016, without having reinstated the

writ, Appellant first attempted service on Appellee.

      “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.” Lamp v. Heyman,


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366 A.2d 882, 889 (Pa. 1976). “The mere filing of a writ … without additional

affirmative action to effectuate timely service of process in compliance with

the applicable rules of court and local practice does not constitute good faith

efforts … and is insufficient to preserve claims” that run afoul of the statute of

limitations.   Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004).

Furthermore, “it is the plaintiff’s burden to demonstrate that his efforts were

reasonable.” Id. “Determining whether a plaintiff acted in good faith is within

the sound discretion of the trial court.” McCreesh v. City of Phila., 888 A.2d

664, 672 (Pa. 2005).

      However, “[w]here the discretion exercised by the trial court is

challenged on appeal, the party bringing the challenge bears a heavy burden.”

Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa.

1995)(citation omitted).   “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 … discretion is abused.”

Id. (citation omitted).

      Good faith can be demonstrated even in light of technical missteps that

violate the Rules of Civil Procedure. See id., at 674. (finding original service

of a writ, erroneously attempted via certified mail, an action done in “good

faith” as it provided the other party with actual notice of the litigation).

Nevertheless, “it is not necessary [that] the plaintiff’s conduct be such that it

constitutes some bad faith act or overt attempt to delay . . . . Simple neglect


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and mistake to fulfill the responsibility to see that requirements for service are

carried out may be sufficient” for a finding of a lack of good faith. Devine,

863 A.2d at 1168 (alteration in original)(citation omitted).

      Other than Appellant’s conclusory statements indicating that a good-

faith effort was made to effectuate service of the writ, Appellant has pointed

to nothing in the record that could support her assertion. Stated differently,

there is a dearth of indicia of any action taken by Appellant between her filing

of a praecipe for a writ of summons on February 26, 2016, and her

unsuccessful attempt at service with an expired writ on April 14, 2016,

seventeen days after the expiration of the thirty-day period described in

Pa.R.C.P. 401(a).    Further, there is no indication that Appellee had actual

notice of Appellant’s filing. We therefore cannot conclude the court erred or

abused its discretion in determining that Appellant had not established a good-

faith effort to effectuate service.

      Appellant’s second argument suggests the grant of summary judgment

violates the coordinate jurisdiction rule.     The coordinate jurisdiction rule

stands for the proposition that “[o]rdinarily, a trial judge should not place

himself in the position to overrule a decision by another judge of the same

court in the same case.” Salerno v. Phila. Newspapers, Inc., 546 A.2d

1168, 1170 (Pa. Super. 1988). Appellant relies on Commonwealth v. Starr,

664 A.2d 1326, 1331 (Pa. 1995), and Baker v. Morjon, Inc., 574 A.2d 676,

677 (Pa. Super. 1990).


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      “Where the motions differ in kind, as preliminary objections differ from

motions for judgment on the pleadings, which differ from motions for

summary judgment, a judge ruling on a later motion is not precluded from

granting relief although another judge has denied an earlier motion.” Goldey

v. Trustees of the Univ. of Pa., 675 A.2d 264, 267 (Pa. 1996). Conversely,

the Goldey decision establishes that “a later motion should not be entertained

or granted when a motion of the same kind has previously been denied, unless

intervening changes in the facts or the law clearly warrant a new look at the

question.”    Id. (emphasis in original).      Here, common legal questions

permeated both Appellee’s motion for judgment on the pleadings and motion

for summary judgment. However, the court was presented with Appellant’s

failure to produce any evidence of record to establish good-faith efforts.

Conversely, when addressing the motion for judgment on the pleadings, the

court was only able to review the pleadings of the parties. This distinction is

sufficient to establish that the motions were of a different kind. The trial court

did not violate the coordinate jurisdiction rule.

      Accordingly, as we discern no error in the trial court’s conclusions and

find no fault with the trial court’s disparate treatment of Appellee’s motion for

judgment on the pleadings and motion for summary judgment, we affirm the

trial court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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