J-A17034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FEEHAN AND SUSAN ROSEMAN,                IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellants

                   v.

ALLSTATE INSURANCE COMPANY AND J.
ROBINSON & SONS, INC.,

                        Appellees                   No. 2563 EDA 2013


              Appeal from the Order entered August 14, 2013
              In the Court of Common Pleas of Bucks County
                     Civil Division at No: 05-8706-16-1


BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 29, 2015

      James Feehan and Susan Roseman (Appellants) commenced a lawsuit

against Allstate Insurance Co. (Allstate) and J. Robinson & Sons Inc.

(Robinson) in 2005, but failed to serve the complaint until 2012, well after

the applicable statutes of limitations ran.     Allstate and Robinson filed

preliminary objections arguing Appellants’ failure to do so required dismissal

of the suit under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), and its

progeny. The trial court sustained the preliminary objections and dismissed

the action with prejudice. We affirm.

      On December 12, 2004, fire destroyed Appellants’ property.         They

submitted a claim to Allstate (their insurer), which denied the claim the next
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day. Appellants then sued Allstate for breach of contract and bad faith, and

Robinson (their insurance broker) for malpractice.1 Appellants commenced

their action by complaint filed on December 7, 2005. Appellants, however,

did not properly serve the complaint on Allstate or Robinson. Nonetheless,

twenty days later, counsel for Allstate filed a written entry of appearance

with a demand for a trial by a jury of twelve.         No attorney entered an

appearance for Robinson.            For the next six years, no docket activity

occurred, except in 2008 and 2010, when the county prothonotary mailed

Appellants termination notices. To each notice, counsel filed certificates of

active status to prevent the trial court from sua sponte dismissing the case

for lack of activity.

       On January 27, 2012, Appellants’ counsel filed a praecipe to reinstate

the complaint, and a sheriff’s deputy served Allstate and Robinson on

January 31, 2012. Allstate and Robinson filed preliminary objections seeking

dismissal of Appellants’ complaint as barred by the statutes of limitations,

since Appellants did not serve the complaint until long after the statutes of

limitations had expired. The trial court sustained the preliminary objections

and dismissed Appellants’ complaint with prejudice. This appeal followed.

       Appellants raise two issues:

____________________________________________


1
  Count one of the complaint is for breach of contract against Allstate, count
two is for bad faith against Allstate, and count three is for malpractice
against Robinson.



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       1. Whether the trial court erred in granting [Allstate and
          Robinson’s] Preliminary Objections based on insufficient
          service where [Allstate and Robinson] had notice of
          [Appellants’] Complaint within twenty (20) days from the
          filing thereof?

       2. Whether the trial court erred in granting [Allstate and
          Robinson’s] Preliminary Objections based on insufficient
          service where [Allstate and Robinson] have failed to establish
          prejudice warranting dismissal of [Appellants’] Complaint?

Appellants’ Brief at 3.

       Whether a statute of limitations bars a cause of action is generally a

question of law. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004).

However, we review a trial court’s decision to dismiss a case for

noncompliance with Lamp for an abuse of discretion.        Englert v. Fazio

Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (quoting

Farinacci v. Beaver County Indus. Dev. Author., 511 A.2d 759 (Pa.

1986)).      Whether the plaintiff made good-faith efforts to serve the

defendants must be evaluated on a case-by-case basis. Id. Moreover, the

plaintiff has the burden of showing a good-faith attempt to serve.         See

Cahill v. Schults, 643 A.2d 121, 123 (Pa. Super. 1994).

       At the outset, Allstate and Robinson improperly raised statutes of

limitations2 defenses by way of preliminary objections.        See Pa.R.C.P.
____________________________________________


2
  The parties characterize Allstate and Robinson’s preliminary objections as
raising “improper service.” However, Allstate and Robinson were properly
served, albeit in 2012. Rather, the issue is whether Appellants’ failure to
serve the complaint timely and properly negates the tolling of the statute of
limitations under Lamp. “The existence of a statute of limitation which cuts
off a remedy does not constitute a defect in the ‘form of service.’”
(Footnote Continued Next Page)


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1030(a) (requiring that affirmative defenses such as the statute of

limitations be raised in new matter); Devine, 863 A.2d at 1167 (“[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.”). Appellants, however, failed to file preliminary objections to

the improper raising of the statutes of limitations in preliminary objections,

which waives this procedural error.              Richmond v. McHale, 35 A.3d 779,

782-83 (Pa. Super. 2012); DeMary Latrobe Printing & Pub’g Co., 762

A.2d 758, 762 (Pa. Super. 2000) (en banc); see also Lamp, 366 A.2d at

885 (noting plaintiff did not object to defendants’ raising of the statute of

limitations in preliminary objections). Accordingly, the trial court’s scope of

review extended to include a determination of whether the affirmative

defense of the statute of limitations barred the claims of Appellants’

complaint. DeMary, 762 A.2d at 762.

      The Lamp rule was intended to “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) (quoting Ins. Co. of N. Am. v. Carnahan,

284 A.2d 728, 729 (Pa. 1971)). It prevents a plaintiff from commencing an

action (which tolls the statute of limitations) and stalling the case by not
                       _______________________
(Footnote Continued)

Devine, 863 A.2d at 1167 (quoting Farinacci, 511 A.2d at 757) (emphasis
added in Devine).



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notifying the defendant through service of original process. See Lamp, 366

A.2d at 889.     Therefore, a writ of summons or complaint “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.

       Over the years, our Supreme Court has modified and refined the

Lamp rule several times.       In Farinacci, the Court clarified that plaintiffs

must     demonstrate     “a    good-faith     effort   to    effectuate   notice   of

commencement of the action.”          Farinacci, 511 A.2d at 759.         The Court

stated that “[t]he purpose for the [Lamp] rule . . . ‘is to avoid the situation

in which a plaintiff can bring an action, but by not making a good-faith effort

to notify a defendant, retain exclusive control over it for a period in excess

of that permitted by the statute of limitations.’”          Id. (quoting Lamp, 366

A.2d at 889) (emphasis added in Farinacci).

       Later, in Witherspoon v. City of Philadelphia, 768 A.2d 1079, 1084

(Pa. 2001) (Opinion Announcing the Judgment of the Court), a plurality of

the    Court   opined   that   a   strict   reading    of   Lamp   was    necessary.

Consequently, the plurality stated that a plaintiff must “immediately and

continually” reissue a writ or reinstate a complaint if it could not timely serve

process and the statute of limitations had run in the interim. Id. However,

as we noted in Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003), a majority

of the justices in Witherspoon actually rejected the requirement that a

plaintiff must “immediately and continually” reissue an un-served writ to be

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entitled to statute-of-limitations tolling. Id. at 80-81 (noting that the five

justices who wrote or joined the concurring and dissenting opinions rejected

the “immediately and continually” reissue standard). Neither this Court nor

a majority of the Supreme Court adopted the Witherspoon plurality’s

standard.   See Sardo v. Smith, 851 A.2d 168, 170 & n.4 (Pa. Super.

2004).

      McCreesh represents our Supreme Court’s latest exposition of Lamp.

In McCreesh, our Supreme Court granted review to clarify what constitutes

a good faith effort by a plaintiff to effectuate notice to a defendant of the

commencement of an action under Lamp. The Court addressed two lines of

cases from our intermediate appellate courts interpreting Lamp.

      The Superior and Commonwealth Courts have struggled to apply
      the Lamp-Farinacci rule, with some panels requiring plaintiffs
      to comply strictly with the Rules of Civil Procedure related to
      service of process and local practice in order to satisfy the
      good[-]faith requirement, see, e.g., Teamann v. Zafris, 811
      A.2d 52, 63 (Pa. Cmwlth. 2002), and other panels providing a
      more flexible approach, excusing plaintiffs’ initial procedurally
      defective service where the defendant has actual notice of the
      commencement of litigation and is not otherwise prejudiced,
      see, e.g., Leidich v. Franklin, 575 A.2d 914 (Pa. Super. 1990).
      We now adopt the more flexible approach, concluding that it
      sufficiently protects defendants from defending against stale
      claims without the draconian action of dismissing claims based
      on technical failings that do not prejudice the defendant.

                                    ***

      In applying Lamp and its progeny, the Commonwealth and
      Superior Courts have formulated inconsistent rules, sometimes
      dismissing cases due to plaintiffs’ failure to comply strictly with
      the Rules of Civil Procedure and on other occasions reserving the
      drastic measure of dismissal for only those cases where the
      defendant has been prejudiced by plaintiff’s failure to comply

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     with the rules. Compare Teamann, 811 A.2d 52 (Pa. Cmwlth.
     2002) (equating “good faith” with strict compliance with the
     Rules of Civil Procedure); Green [v. Vinglas], 635 A.2d 1070,
     1073 (Pa. Super. 1993) (same); Williams [v. SEPTA], 585 A.2d
     583 (Pa. Cmwlth. 1991) (same); Feher [v. Altman], 515 A.2d
     317, 319 (Pa. Super. 1986) (same); with Fulco [v. Shaffer],
     686 A.2d 1330 [(Pa. Super. 1996)] (refusing to dismiss claims
     based on failure to comply with rules where defendant received
     actual notice and was not prejudiced); Leidich, 575 A.2d 914
     (Pa. Super. 1990) (same); Hoeke [v. Mercy Hosp.], 386 A.2d
     71 (Pa. Super. 1978) (same); Big Beaver Falls Area Sch. Dist.
     v. Big Beaver Falls Area Educ. Assoc., 492 A.2d 87 ([Pa.
     Cmwlth.] 1985) (same); but see Schriver [v. Mazziotti], 638
     A.2d [224, 226 (Pa. Super. 1994)] (holding that Lamp requires
     compliance but allowing exceptions as in Leidich).

     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 [Pa.R.C.P. No.] 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.

     In setting forth this rule, we are merely re-animating the
     purpose of Lamp and reigning [sic] in the line of cases which
     have strayed from it. As stated earlier, this Court in Lamp
     attempted to prevent plaintiffs from abusing the liberal rules of
     civil procedure which had been enacted originally to protect
     plaintiffs from being thrown out of court despite commencing an
     action within the applicable limitations period.     The cases
     requiring strict compliance hearken back to these draconian
     procedures and replace a factual good[-]faith inquiry with an


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      objective bright line standard of compliance that is wholly
      inconsistent with the concept of good faith.

McCreesh, 888 A.2d at 666, 673-74 (footnotes and parallel citations

omitted) (emphases added). In short, per McCreesh, a case should not be

dismissed under Lamp where a) there has been a good-faith effort to gain

service, b) there is a technical non-compliance with perfecting service, and

c) the defendant(s) received actual notice of original process, unless the

defendant(s) suffered prejudice as a result of technical noncompliance with

the service rules.

      With the above standard in mind, we turn to Appellants’ first

argument.     Appellants undisputedly did not serve the complaint upon

Allstate and Robinson until January 27, 2012, the date on which the return

of service indicates the sheriff handed a copy of the complaint to the

defendants at their places of business. Appellants argue the trial court erred

in finding that they made no good-faith effort to provide Allstate and

Robinson with notice of the filing of the complaint.

      We first affirm the trial court’s order as it pertains to Robinson.

Counsel’s December 27, 2005 entry of appearance was limited to Allstate.

Appellants therefore concede no evidence shows that Robinson had notice of

the filing of this action until 2012. The trial court did not abuse its discretion

in dismissing this action against Robinson.

      Regarding Allstate, Appellants argue that Allstate had actual notice of

the complaint because its counsel entered a written appearance only 20 days

after the complaint was filed. Allstate and Robinson counter that Appellants

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did not attempt to serve the complaint properly until six years after filing.

We view this issue as whether Appellants satisfied their burden of showing a

good-faith attempt to provide service of process upon Allstate. We hold the

trial court did not abuse its discretion in concluding otherwise.

      As noted above, the McCreesh Court held that Lamp and the Rules of

Civil Procedure do not 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,” McCreesh, 888 A.2d at 674

(emphasis added).      The Court did not define “technical missteps” or

“technical noncompliance,” but McCreesh’s facts are illustrative. McCreesh

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

of limitations. Id. at 665. He sent 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, as the rules provided for 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, McCreesh 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. McCreesh

maintained that the original writ was served in compliance with the rules,

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arguing that delivery of the writ by a postal worker constituted service by a

competent adult. The Court affirmed the trial court’s finding that the City

had actual notice of the suit and that Appellant had made a good-faith effort

to perfect service.    The matter was remanded however, for a factual

determination as to any prejudice suffered by the City. Thus, in McCreesh,

subject to further findings as to prejudice, the rule in Lamp was found not

to have been violated, since McCreesh, in good-faith, attempted service

upon the City, service was only technically noncompliant, and the City had

actual notice of the suit.   Cf. Englert, 932 A.2d at 127 (concluding that

notice of possible litigation does not suffice for actual notice under

McCreesh).

      In contrast, here there is no evidence that Allstate received technically

noncompliant service, or that Appellants made any good-faith efforts to

effect proper service until more than six years passed from the complaint

filing. Although Allstate’s attorney was evidently aware of the filing of the

complaint, nothing in the record indicates Appellants tried to serve the

complaint in 2005, or that in doing so, committed a good-faith “technical”

misstep to perfect service. In fact, the record is devoid of any explanation

as to how Allstate even came into possession of the complaint. Moreover,

Appellants never sought discovery or requested a hearing to present

evidence of attempts to serve timely the complaint on Allstate.      Appellant

could not rely upon Allstate’s entry of appearance in 2005, since Rule of Civil

Procedure 1012(a) expressly provides that an entry of appearance does not

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waive the right to waive any defenses.        This of course would include a

defense based upon improper service. We reject Appellants’ argument that

we should “presume” their alleged efforts to be sufficient.           No such

presumption exists, for a plaintiff bears the burden of proving sufficient

service. This is not a case where Appellants made a misguided attempt to

serve the complaint, or tried to serve the complaint but failed. Rather, on

the face of the record, it appears Appellants did nothing to attempt to

properly serve Allstate.    The trial court did not abuse its discretion in

dismissing Appellants’ action against Allstate. See Englert, supra (finding

no abuse of discretion to dismiss where appellant took no action once writ

was issued to ascertain if service was properly made and instead relied upon

customary practice of waiting for word from sheriff’s office).

      We do not think McCreesh is sufficiently elastic to include within

technical noncompliance a total lack of diligence to serve original process.

Were we to construe McCreesh to such an extent the rules relating to

service would be relegated to mere surplusage. Nor does Pa.R.C.P. No. 126

(requiring liberal interpretation of the Rules of Civil Procedure unless a

party’s substantial rights are affected) compel a contrary result. It would be

ironic to invoke Rule 126 to excuse Appellants’ failure to serve original

process, for the purpose of liberally construing the Rules of Civil Procedure is

“to secure the just, speedy and inexpensive determination of every action

or proceeding to which they are applicable.”     Pa.R.C.P. No. 126 (emphasis

added).   Appellants’ would instead use Rule 126 to countenance delay.

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McCreesh interpreted Lamp liberally to avoid unjust dismissals where

plaintiffs only are in technical noncompliance with the Rules of Civil

Procedure, but make good-faith efforts to serve defendants with original

process.    McCreesh does not grant parties carte blanche to disregard

completely the rules regarding service.

     In sum, we hold the trial court did not abuse its discretion in

concluding that Appellants did not make a good-faith effort to serve

Robinson and Allstate with their complaint in 2005. Therefore, the filing of

their complaint did not toll the statute of limitations under Lamp and its

progeny. Because Appellants failed to make a good-faith effort at service,

we   need   not     address   Appellants’   second   issue   regarding    prejudice.

Accordingly,   we    affirm   the   order   sustaining   Allstate   and   Robinson’s

preliminary objections and dismissing Appellants’ action with prejudice.

     Order affirmed.

     President Judge Gantman and Judge Panella concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2015




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