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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    FERNANDO MELENDEZ, AS                       :     IN THE SUPERIOR COURT OF
    ADMINISTRATOR OF THE ESTATE OF              :           PENNSYLVANIA
    DAMARIS REYES, DECEASED

                      Appellant


                 v.
                                                :     No. 1496 MDA 2015

    THE GOOD SAMARITAN HOSPITAL
    OF LEBANON, PENNSYLVANIA;
    LEBANON EMERGENCY PHYSICIANS;
    THE GOOD SAMARITAN HOSPITAL

                    Appeal from the Order Entered August 3, 2015
                  In the Court of Common Pleas of Lebanon County
                         Civil Division at No(s): 2014-01221


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

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:                      FILED MAY 08, 2017

        Appellant's   failure   to   properly       commence   the   instant    wrongful

death/survival action by effectuating service prior to the expiration of the

statute of limitations should not be excused or characterized as          a   "good faith

effort." Thus, although the esteemed Majority has offered                 a    thoughtful

analysis, I respectfully dissent.

        When considering    a   case where service is delayed beyond the statute

of limitations, our courts have read      a   "good faith" requirement in Pa.R.C.P.




*   Former Justice specially assigned to the Superior Court.
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401, which governs the service of original process. See Lamp v. Heyman,

469 Pa. 465, 366 A.2d 882, 889 (1976).                    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). The determination of           a   good faith effort lies within the discretion of

the trial court. See McCreesh v. City                of Philadelphia,     585 Pa. 211, 888

A.2d     664       (2005).   Simple   neglect       and   mistake,   or   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.        See Englert v.

Fazio Mechanical Services, 932 A.2d 122, 124-25 (Pa.Super. 2007). It                              is

unnecessary for the plaintiff's conduct to constitute bad faith or an overt

attempt to delay before Lamp will apply. Id. "Lack of knowledge, mistake

or misunderstanding does not toll the running of the statute of limitations."

Booher v. Olczak, 797 A.2d 342, 345 (Pa.Super. 2002). Further, it                           is   the

plaintiff's burden to demonstrate that his efforts at service were reasonable.

See Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423, 433

(Pa.Super. 1995).

         Appellant, who was the plaintiff below, failed to demonstrate that his

efforts at service were reasonable. As the trial court determined, on July 3,

2014, Appellant's counsel filed           a    complaint; however, the complaint was

returned to counsel's office on the same day for reasons unknown. Although

the trial court's docket entries contain            a   notation entered on July 3, 2014,


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indicating the complaint had been returned, Appellant's counsel proffers that

he "discovered" the error on August 6, 2014, at which time he reinstated the

complaint. The sheriff then effectuated service on August 11, 2014, which

was beyond the statute of limitations.

        In explaining why the complaint was initially returned to his office,

Appellant's      counsel avers that one of his             staff members may have

mistakenly attempted service via           a    private process service, and the staff

member then left his employment during the time period that counsel

believed service was being attempted.

        Contrary to the Majority's conclusion, I find that Appellant did not

meet his burden of demonstrating           a   good faith effort in effectuating service.

Counsel    is    ultimately responsible for deadlines and must adequately

supervise his staff. Moreover,       a   review of the trial court's docket entries at   a


reasonable time and in    a   reasonable manner would have revealed to counsel

that Appellant's complaint had been returned to his office on July 3, 2014.

        Consequently, the trial court did not abuse its discretion in finding            a


lack of good faith. As I would affirm the trial court's grant of the motion for

judgment of the pleadings      in   favor of Appellee, I respectfully dissent.




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