J-S95004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MUSTAFA ALI                                      IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

ANDREW AMOROSO AND PATRICK
MCGINTY

                          Appellees                  No. 1127 EDA 2016


               Appeal from the Order Entered March 21, 2016
               In the Court of Common Pleas of Bucks County
                      Civil Division at No: 2013-01865


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MARCH 23, 2017

      Appellant, Mustafa Ali, appeals pro se from the March 21, 2016 order

entered in the Court of Common Pleas of Bucks County, granting summary

judgment in favor of Appellees, Andrew Amoroso and Patrick McGinty.

Appellant argues the trial court erred in granting summary judgment

because the trial court concluded Appellant’s claims were time-barred;

because Appellees failed to complete discovery in violation of the trial court’s

order; because there were material issue of fact in dispute; and because

Appellees lacked probable cause to arrest Appellant.        We disagree and,

therefore, affirm.

      In its opinion accompanying the March 21, 2016 order, the trial court

explained:
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     This case involves a malicious prosecution claim for a bad checks
     charge initiated in 2007 against [Appellant] which was eventually
     nolle prossed by the Commonwealth in 2011. The stated reason
     for the nolle pros was judicial economy, as [Appellant] had been
     charged with and convicted of first-degree murder in
     Philadelphia and sentenced to life in prison in 2010, i.e.[,] before
     the bad checks charge could be resolved. [Appellees], two
     Middletown Township police officers who filed the underlying bad
     checks charges, now move for summary judgment on two
     grounds. First, they claim [Appellant’s] claim is barred by the
     statute of limitations; second they assert [Appellant] has failed
     to establish the requisite elements of a malicious prosecution
     claim.

Trial Court Opinion, 3/21/16, at 1-2 (unnumbered).

     The trial court granted summary judgment, finding that although

Appellant filed his complaint within two years of the time the bad checks

charge was nolle prossed, he failed to make any good faith effort to serve

the complaint until 19 months after it was filed. Therefore, Appellant failed

to toll the statute of limitations. The trial court also determined Appellant

failed to produce any evidence to support his claim that Appellees initiated

the proceedings without probable cause.

     Appellant timely appealed the March 21, 2016 summary judgment

order. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

     Appellant asks us to consider four issues, which we have reordered for

ease of discussion:

     1. Did not the judge err in ruling that [Appellant’s] claim was
        time barred by the statute of limitations?

     2. Did not the judge err in granting [Appellees’] summary
        judgment motion although [Appellees] failed to complete


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         discovery in compliance with the judge’s order compelling
         discovery?

      3. Did not the judge err in granting [Appellees’] summary
         judgment motion although there were material issues of fact
         in dispute?

      4. Did not the judge err in ruling that there was probable cause
         to arrest although [Appellee] Amoroso’s own testimony
         showed there was no probable cause, in addition to the
         numerous exhibits and pleading submitted by [Appellant]?

Appellant’s Brief at 3.

      We begin by setting forth our scope and standard of review. As this

Court has recognized:

      In reviewing an order granting summary judgment, our scope of
      review is plenary, and our standard of review is the same as that
      applied by the trial court. Our Supreme Court has stated the
      applicable standard of review as follows: [A]n appellate court
      may reverse the entry of a summary judgment only where it
      finds that the lower court erred in concluding that the matter
      presented no genuine issue as to any material fact and that it is
      clear that the moving party was entitled to a judgment as a
      matter of law. In making this assessment, we view 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. As our inquiry involves
      solely questions of law, our review is de novo.

      Thus, our responsibility as an appellate court is to determine
      whether the record either establishes that the material facts are
      undisputed or contains insufficient evidence of facts to make out
      a prima facie cause of action, such that there is no issue to be
      decided by the fact-finder. If there is evidence that would allow
      a fact-finder to render a verdict in favor of the non-moving
      party, then summary judgment should be denied.

Harris v. NGK North American, Inc., 19 A.3d 1053, 1063 (Pa. Super.

2011) (quoting Jones v. Levin, 940 A.2d 451, 453-54 (Pa. Super. 2007)).


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      In his first issue, Appellant contends the trial court erroneously

determined that Appellant’s malicious prosecution action was barred by the

statute of limitations.     As the trial court noted, the parties stipulated to

controlling dates during oral argument on Appellees’ motion.           Trial Court

Rule 1925(a) Opinion, 5/20/16, at 6. Specifically, Appellant acknowledged

that the underlying bad check charge was nolle prossed in May 2011 and

that he filed his complaint on March 14, 2013, within the applicable two-year

limitations period.   Id.     However, the “fil[ing of a] complaint within the

time permitted by the applicable statute of limitations . . . is not the only

requirement for correctly commencing a lawsuit.         Service of process must

also be properly effectuated.”     Cahill v. Schults, 643 A.2d 121, 123 (Pa.

Super. 1994).      The law in Pennsylvania, as established by Lamp v.

Heyman, 366 A.2d 882 (Pa. 1976), and its progeny, requires that a plaintiff

“refrain[] 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 Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122 (Pa.

Super. 2007), this Court stated:

      It is well settled in this Commonwealth pursuant to Lamp v.
      Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and Farinacci v.
      Beaver County Industrial Development Authority, 510 Pa.
      589, 511 A.2d 757 (1986), that service of original process
      completes the progression of events by which an action is
      commenced. Once an action is commenced by writ of summons
      or complaint the statute of limitations is tolled only if the plaintiff
      then makes a good faith effort to effectuate service. Moses v.
      T.N.T. Red Star Express, 725 A.2d 792 (Pa. Super. 1999),
      appeal denied, 559 Pa. 692, 739 A.2d 1058 (1999). “What

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     constitutes a ‘good faith’ effort to serve legal process is a matter
     to be assessed on a case by case basis.” Id. at 796; Devine v.
     Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004) (citations
     omitted). “[W]here noncompliance with Lamp is alleged, the
     court must determine in its sound discretion whether a good-
     faith effort to effectuate notice was made.” Farinacci at 594,
     511 A.2d at 759.

     In making such a determination, we have explained:

        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. Simple neglect
        and mistake to fulfill the responsibility to see that
        requirements for service are carried out may be sufficient
        to bring the rule in Lamp to bear. Thus, conduct that is
        unintentional that works to delay the defendant’s notice of
        the action may constitute a lack of good faith on the part
        of the plaintiff.

     Devine, supra at 1168 (quoting Rosenberg v. Nicholson, 408
     Pa. Super. 502, 597 A.2d 145, 148 (1991), appeal denied, 530
     Pa. 633, 606 A.2d 903 (1992)).         “[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 were reasonable.” Bigansky v.
     Thomas Jefferson University Hospital, 442 Pa. Super. 69,
     658 A.2d 423, 433 (1995), appeal denied, 542 Pa. 655, 668
     A.2d 1119 (1995).

Id. at 124-25.

     Here, the docket reflects that Appellant reinstated his complaint for

the first time on September 9, 2014, a year and a half after it was initially

filed, and that the complaint was first received in the sheriff’s office for

service on September 24, 2014. There is no suggestion that Appellant took

any steps to effect service of his complaint from the time it was filed in

March 2013 until he reinstated the complaint and instructed the sheriff to


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serve it in September 2014. Trial Court Rule 1925(a) Opinion, 5/20/16, at

6.1 As the trial court observed:

       There is nothing on the docket to suggest that the Sheriff had
       any difficulty serving the Complaint when requested to do so.
       Because of [Appellant’s] inaction (failure to request the Sheriff to
       serve the initial Complaint), and failure to make a good faith
       effort to promptly serve [Appellees] when the action was initially
       filed, the Statute of Limitations was not tolled until a new
       complaint was reinstated on September 9, 2014, after the
       Statute of Limitations had run.

Id. at 8.2

       We find no error in the trial court’s determination that Appellant’s

action was time-barred.          As such, we find no error in the trial court’s

conclusion that Appellees were entitled to summary judgment. Appellant’s

first issue fails for lack of merit.

       In his remaining three issues, Appellant contends the trial court erred

in granting summary judgment despite Appellees’ failure to complete

discovery in compliance with the trial court’s order, despite the existence of

material issues of fact, and despite the lack of probable cause to arrest

Appellant. In light of our disposition of Appellant’s first issue, the remaining



____________________________________________


1
 Appellant admitted that his complaint was not served on Appellees until
October 2, 2014. Trial Court Rule 1925(a) Opinion, 5/20/16, at 6.
2
 We note in passing that Appellees properly raised the statute of limitations
as an affirmative defense in the new matter filed to Appellant’s complaint.
Appellees’ Answer and New Matter, 10/21/14, at 5 (New Matter at ¶ 1).



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issues are rendered moot. Even if not moot, Appellant has failed to prove

that the trial court committed any error.

      With respect to Appellant’s contention that Appellees failed to

complete discovery, Appellant either failed to read or failed to understand

the trial court’s December 10, 2015 order issued in response to Appellant’s

Motion to Compel Discovery.       That order directed Appellees to complete

discovery within 30 days or request a hearing in objection to the order

within ten days. As the docket reflects, Appellees did file a timely request

for a hearing.   Ultimately, a hearing was held on March 10, 2016 during

which the trial court heard argument on, inter alia, Appellees’ motion for

summary judgment. Therefore, there is no merit to Appellant’s contention

that Appellees failed to comply with the trial court’s order regarding

discovery.

      Appellant also argues that the trial court erred in granting summary

judgment even though there were material issues of fact in dispute.

Specifically, Appellant contends that “the conflicting evidence and the

conflicting arguments based on that evidence clearly show that there are

material issues of fact in dispute, and examining the record in the light most

favorable to the Appellant, the nonmoving party, questions remain.”

Appellant’s Brief at 11 (emphasis in original).

      As the trial court explained, Appellant “has failed to adduce sufficient

evidence on an issue essential to his case and on which he bears the burden


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of proof.” Trial Court Rule 1925(a) Opinion, 5/20/16, at 10. More precisely,

Appellant “failed to produce and/or point to any evidence in the record to

support his claim that [Appellees] instituted the underlying proceedings

without probable cause.” Id. We agree. There is no merit to this claim.

      Finally, Appellant asserts that the trial court erred in concluding there

was probable cause to arrest in spite of Appellee Amoroso’s testimony. We

disagree. The trial court indicated that the following facts were undisputed:

      1. In May 2007, [Appellant] provided Davis Acura with a check
         which did not clear; (acknowledged by [Appellant] during oral
         argument)

      2. The check was returned for insufficient funds; (acknowledged
         by [Appellant] during oral argument)

      3. In 2007, [the dealership’s finance manager] contacted the
         Middletown Township Police Department and told [Appellees]
         that [Appellant] presented Davis Acura with a bad check and
         failed to cover it in a timely fashion;

      4. [Appellees] provided that information in an Affidavit of
         Probable Cause, which was approved by Magisterial District
         Judge John Kelly Jr.;

      5. [The dealership] filed suit against [Appellant] to pursue a
         claim for money due;

      6. [Appellant] failed to produce any evidence which suggests
         that [Appellees] did anything but act reasonably in response
         to allegations made to the police officers, by an employee of
         Davis Acura[.]

Id. at 10-11.   Further, “[d]uring oral argument, [Appellant] conceded that

he had obtained no verified statements from anyone to establish any fact

which would support and/or suggest that [Appellees] acted maliciously in


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this matter.”   Id. at 11 (citing Chizmar v. Borough of Trafford, 454

F.App’x. 100, 106 (3d Cir. 2011) (holding that a failure to show a lack of

probable cause “also precludes a finding of malice”)).

      Appellant has failed to demonstrate the trial court erred in granting

Appellees’ motion for summary judgment.       Therefore, we affirm the trial

court’s March 21, 2016 order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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