J-S47016-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TODD PHILLIPS                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TRIPLE G. FARMS, INC., D/B/A               :   No. 514 MDA 2019
    FOXCHASE GOLF CLUB; DOUGLAS S.             :
    GRAYBILL AND SUSAN A. GRAYBILL,            :
    EXECUTORS OF THE ESTATE OF                 :
    IRVIN G. GRAYBILL AND DOUGLAS              :
    S. GRAYBILL, D/B/A TRIPLE G                :
    FARMS; AND GREGORY DISSINGER               :

                Appeal from the Order Entered March 11, 2019
       In the Court of Common Pleas of Lancaster County Civil Division at
                             No(s): CI-17-04051

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

MEMORANDUM BY NICHOLS, J.:                            FILED OCTOBER 22, 2019

        Appellant Todd Phillips appeals from the order sustaining the preliminary

objections filed by Appellees Triple G. Farms, Inc., doing business as Foxchase

Golf Club, Douglas S. Graybill and Susan A. Graybill, as executors of the estate

of Irwin G. Graybill and Douglas S. Graybill, doing business as Triple G. Farms,

Inc. (collectively, Foxchase), and Gregory Dissinger.1 Appellant contends that

the trial court erred in dismissing his suit because he made a good faith effort




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1   We collectively refer to Foxchase and Mr. Dissinger as Appellees.
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to serve the writ of summons and had no intention to stall the judicial process.

We affirm.

        We state the facts according to Appellant’s complaint. On May 8, 2015,

Mr. Dissinger was playing golf at Foxchase Golf Club, owned and operated by

Foxchase. That same day, Appellant was also playing golf. Appellant alleged

that Mr. Dissinger “violated the rules of golf by failing to wait until [Appellee]

had cleared the green before hitting his golf ball from the tee.” R.R. at 16a.2

Appellant claims that as a result, Mr. Dissinger’s ball struck Appellant. Id.

        Specifically, Appellant claimed Foxchase was negligent by, among other

things, “permitting golfers to hit golf balls while others were still on the

fairway.”    Id. at 17a-20a.       Appellant alleged Foxchase failed “to provide

marshals for the tournament” who would have enforced the rules of golf. Id.

Appellant also sued Mr. Dissinger for negligence because, by failing to “abide

by the rules of golf,” Mr. Dissinger hit a golf ball into Appellant. Id. at 21a-

22a. As a result, Appellant claimed he suffered a broken leg.

        On May 21, 2015, Appellant’s counsel notified Foxchase and advised

Foxchase that they should “communicate with [their] insurance carrier

immediately so that we may discuss settlement negotiations.” Id. at 124a.

On June 2, 2015, Foxchase’s insurer sent a letter to Appellant’s counsel




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2   We cite to the reproduced record for the parties’ convenience.


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acknowledging counsel’s representation and requesting additional information

for its investigation. Id. at 120a.

      On April 27, 2017, shortly before the statute of limitations expired,

Appellant filed a writ of summons and requested that the prothonotary forward

the writ to the sheriff. Id. at 2a. The statute of limitations expired on May 8,

2017. The record reflects no activity until December 4, 2017, when Appellant

filed a praecipe to reissue the writ of summons, which again asked the

prothonotary to forward the writ to the sheriff for service. Id. at 4a. The

sheriff filed its return of service on December 27, 2017.             Id. at 6a.

Subsequently, Dissinger’s insurer sent two letters, dated January 9 and

February 1, 2018, discussing its ongoing investigation and determination that

it would not pay Appellant. Id. at 121a-22a.

      Appellant ultimately filed his complaint on September 13, 2018. Id. at

12a-26a. On September 19, 2018, Mr. Dissinger filed preliminary objections

objecting to Appellant’s writ because it was untimely served. On September

27,   2018,   Foxchase   filed   preliminary   objections,   as   well,   generally

incorporating Mr. Dissinger’s preliminary objections by reference. Appellant

filed a response in opposition and the trial court held oral argument on

February 28, 2019.




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        On March 11, 2019, the trial court sustained Appellees’ preliminary

objections and dismissed Appellant’s complaint with prejudice.3        Appellant

timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

        Appellant raises the following issues:

        [1.] Whether the trial court erred in sustaining [Appellees’]
        preliminary objections based on insufficient service of the writ of
        summons.

        [2.] Whether the trial court erred in sustaining [Appellees’]
        preliminary objections where [Appellees] have failed to establish
        prejudice from the insufficient service.

Appellant’s Brief at 3.

        We summarize the arguments in support of both of Appellant’s issues

together. Initially, Appellant argues that he served Appellees in good faith.

Id. at 8. He maintains that because he “has not demonstrated an intent to

stall the judicial machinery,” and has complied with the rules of civil

procedure, the trial court should not have dismissed his complaint.           Id.

Appellant contends that when he filed the writ of summons on April 27, 2017,

the writ instructed the prothonotary to forward the writ to the Lancaster

County Sheriff’s office for service on Appellees.     Id. at 8-9.   According to

Appellant, the writ was never forwarded to the sheriff and he never received

notice that service was incomplete. Id. at 9. Appellant adds that because he




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3   The opinion and order, dated March 8, 2019, was served on March 11, 2019.


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“maintained communications and contact with” Appellees, he provided “notice

of the action,” and thus, Appellees suffered no prejudice. Id. at 9, 11-12.

      In Am. Interior Const. & Blinds Inc. v. Benjamin’s Desk, LLC, 206

A.3d 509 (Pa. Super. 2019), this Court stated that “[o]ur standard of review

of an order of the trial court overruling or granting preliminary objections is

to determine whether the trial court committed an error of law.                When

considering the appropriateness of a ruling on preliminary objections, the

appellate court must apply the same standard as the trial court.” Benjamin’s

Desk, 306 A.3d at 512.

      By way of guidance, Pennsylvania Rule of Civil Procedure 405 addresses

non-service of original process:

      (a) When service of original process has been made the sheriff or
      other person making service shall make a return of service
      forthwith. If service has not been made and the writ has not been
      reissued or the complaint reinstated, a return of no service shall
      be made upon the expiration of the period allowed for service.

                                   *    *    *

      (e) The return of service or of no service shall be filed with the
      prothonotary.

                                   *    *    *

      (g) The sheriff upon filing a return of service or of no service shall
      notify by ordinary mail the party requesting service to be made
      that service has or has not been made upon a named party.




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Pa.R.C.P. 405(a), (e), (g).4 In other words, notice of service or non-service

must be promptly filed. Id.; see also Pa.R.C.P. 401 (stating that original

process must be served within thirty days after issuance of the writ).

       In resolving the question of proper service, the Benjamin’s Desk Court

summarized the two cases of McCreesh v. City of Phila., 888 A.2d 664 (Pa.

2005), and Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), as follows:

       In McCreesh . . . , the plaintiff filed a timely praecipe to issue a
       writ of summons against Philadelphia. The plaintiff mailed the writ
       of summons via certified mail to Philadelphia’s Law Department. .
       . . In pertinent part, Philadelphia filed preliminary objections
       asserting that delivery of the writ by certified mail in August 2002
       did not comply with Pa.R.C.P. 400.1, which requires original
       process in actions commenced in Philadelphia to be served by
       either the sheriff or a competent adult. . . .

       The Pennsylvania Supreme Court granted review to resolve
       inconsistent holdings by the intermediate appellate courts, which
       sometimes dismissed 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 with the rules. After reviewing the conflicting caselaw, the
       McCreesh Court held that the Commonwealth Court’s holding was

          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.

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4 As the Commonwealth Court observed, “[p]roper service is not presumed;
rather, the return of service itself must demonstrate that the service was
made in conformity with the Pennsylvania Rules of Civil Procedure.” City of
Phila. v. Berman, 863 A.2d 156, 160 (Pa. Cmwlth. 2004) (citation omitted).


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            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 . . . 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.

Benjamin’s Desk, 206 A.3d at 513-14 (citations and quotation marks

omitted).

      Nonetheless, the McCreesh Court imposed an evidentiary burden on

the plaintiff:

      We subtly altered our holding in Lamp in Farinacci [v. Beaver
      Co. Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986)], requiring
      plaintiffs to demonstrate a good-faith effort to effectuate notice of
      commencement of the action. In announcing this refinement to
      the Lamp rule, we acknowledged that the good faith requirement
      is not apparent from a reading of the rule itself, but rather,
      satisfied the stated purpose of our decision in Lamp which was to
      avoid the situation where a plaintiff can retain exclusive control
      over litigation by not making a good faith effort to notify the
      defendant. We held that determining whether a plaintiff
      acted in good faith lies within the sound discretion of the
      trial court. Therefore, noting that plaintiffs are required to
      comply with local practice to ensure, insofar as they are able,
      prompt service of process, we affirmed the trial court’s decision to
      dismiss the complaint where the plaintiff failed to deliver the writ
      to the sheriff as required by local practice and consequently
      delayed service upon the defendant for over a month.

McCreesh, 888 A.2d at 672 (citations omitted and some formatting altered).

In sum, the burden is on the plaintiff to make “a good faith effort to effectuate

service.”    Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124 (Pa.

Super. 2007); accord McCreesh, 888 A.2d at 672. Communication between

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a plaintiff and an insurance adjuster, however, does not serve “as a substitute

for actual service of process.” Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa.

Super. 1994) (holding, “We find no merit in the contention communication

between appellant and appellees’ insurance adjuster serves as a substitute for

actual service of process.”); accord Moses v. T.N.T. Red Star Exp., 725

A.2d 792, 798 (Pa. Super. 1999).

      In determining whether the plaintiff acted in good faith, the Englert

Court 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.

      Although 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 [to effectuate service] were
      reasonable.

Englert, 932 A.2d at 124-25 (citations omitted and some formatting altered).

      For example, in Ferrara, the plaintiff filed a writ of summons but it was

never served on the defendants. Ferrara, 636 A.2d at 1151. The plaintiff

ultimately reissued the writ and served it six months later, which was after

the statute of limitations had expired.      Id.   The defendants succeeded in

dismissing the lawsuit on the basis of untimely service. Id. at 1152.




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       The Ferrara plaintiff appealed, arguing that when he initially filed the

writ, he assumed “the prothonotary would, or did forward the writ to the

sheriff for service.”     Id.    The plaintiff asserted that because “either the

prothonotary or sheriff” was at fault, the trial court erred in dismissing the

lawsuit. Id. The plaintiff insisted he did not act in bad faith. Id. The Ferrara

Court disagreed, holding that although the plaintiff’s “counsel did not actively

attempt to thwart service of the writ, he also did not take any affirmative

action to see that the writ was served and to put the defendant[s] on notice

that an action had been filed against” them. Id.

       Here, like the plaintiff in Ferrara, Appellant obtained the writ of

summons on April 27, 2017, and purportedly instructed the prothonotary to

forward the writ to the Lancaster County Sheriff’s office to serve the writ on

Appellees. See id. at 1151. As with the Ferrara plaintiff, Appellant assumed

the Lancaster County prothonotary would forward the writ to the sheriff for

service.5 See id. Identical to Ferrara, Appellant “did not take any affirmative

action to see that the writ was served” and put Appellees on notice of a

lawsuit. See id. at 1152. Appellant knew or should have known that original

process must be served within thirty days after issuance of the writ of

summons.       See Pa.R.C.P. 401; see also Ferrara, 636 A.2d at 1152.



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5The trial court has observed that the Lancaster County prothonotary does
not forward writs to the sheriffs. Trial Ct. Op. at 7 n.3.


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Appellant should have, like the plaintiff in Ferrara, followed up upon not

receiving a copy of any notice of service or non-service. See Ferrara, 636

A.2d at 1152; see generally Pa.R.C.P. 405; Englert, 932 A.2d at 124-25.

Instead, similar to the Ferrara plaintiff, the record establishes Appellant did

not follow up until seven months later, when Appellant obtained a reissued

writ on December 4, 2017. See Ferrara, 636 A.2d at 1151. Appellant, like

the plaintiff in Ferrara, has not explained the lapse in time.

      Moreover, to the extent that Appellant argues Appellees had actual

notice of the lawsuit, he is incorrect. Initially, Appellant’s counsel’s May 21,

2015, and June 2, 2015 correspondence reflects the typical pre-litigation

communications between an insurer and plaintiff’s counsel. See R.R. at 120a,

124a. The May 21, 2015 letter to Foxchase from Appellant’s counsel suggests

settlement and not a lawsuit. See id. at 124a. The June 2, 2015 letter merely

advises Appellant’s counsel that Foxchase’s insurer is investigating the claim

and requests counsel’s theory of liability.    Id.   Similar to Ferrara, such

correspondence between Appellant and Appellees’ insurance adjuster does not

serve “as a substitute for actual service of process.” See Ferrara, 636 A.2d

at 1153; see also Benjamin’s Desk, 206 A.3d at 513-14. Indeed, Appellant

had not even filed a writ at the time of the May 21 or June 2, 2015

correspondence.

      Furthermore, the other two letters from Dissinger’s insurer, dated

January 9 and February 1, 2018, post-date Appellant’s December 11, 2017


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service of the writ.    See R.R. at 121a-22a.    Neither letter could establish

Appellees, let alone Dissinger, had actual notice of Appellant’s lawsuit prior to

the expiration of the statute of limitations. See Benjamin’s Desk, 206 A.3d

at 513-14.    For these reasons, because the trial court did not abuse its

discretion, we affirm the order below.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




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