J-A13027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RHASHEENA GUSSOM                           :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MAURICE TEAGLE                             :   No. 3245 EDA 2018

                Appeal from the Order Entered October 3, 2018
      In the Court of Common Pleas of Philadelphia County Civil Division at
                        No(s): 03821 April Term, 2018

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 26, 2019

        Appellant Rhasheena Gussom appeals from the order granting the

preliminary objections of Appellee Maurice Teagle and dismissing Appellant’s

complaint with prejudice.          Appellant contends the trial court abused its

discretion by failing to recognize her good faith efforts to serve the complaint

on Appellee. We affirm.

        We set forth the facts as presented in the trial court’s opinion:

        [Appellant] filed a complaint against [Appellee] on April 26, 2018.
        Appellant claimed damages from a July 25, 2016, motor vehicle
        incident.   On May 4, 2018, Appellant attempted service at
        Appellee’s last known address of 5021 Boudinot Street,
        Philadelphia, PA 19120. As per Appellant’s Affidavit of Non-
        Service dated May 9, 2018, the current occupant noted that
        Appellee had moved to Virginia.

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*   Retired Senior Judge assigned to the Superior Court.
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       On August 22, 2018, Appellant filed a praecipe to reinstate the
       complaint.[1] On September 10, 2018, Appellee filed [verified]
       preliminary objections to Appellant’s complaint arguing 1) no good
       faith efforts at service before the statute of limitations ran on July
       25, 2018, and 2) insufficient specificity in Appellant’s complaint.
       On September 2[8], 2018, Appellant again filed a praecipe to
       reinstate the complaint, but failed to file any response to
       Appellee’s preliminary objections.

       On October 3, 2018, [the trial] court sustained Appellee’s
       preliminary objections and dismissed Appellant’s complaint. On
       October 5, 2018, Appellant filed a motion for reconsideration of
       [the trial] court’s October 3, 2018, order.[2] On October 26, 2018,
       [the trial] court denied Appellant’s motion for reconsideration. On
       October 30, 2018, Appellant appealed [the trial] court’s order
       dated October 26, 2018, to the Superior Court of Pennsylvania,[3]
____________________________________________


1 The certified record transmitted to this Court on appeal does not contain this
document. Appellant’s reproduced record, however, includes this document
and neither party disputes its accuracy. See R.R. at 11a; see generally
Pa.R.A.P. 1921 cmt. (stating, “where the accuracy of a pertinent document is
undisputed, the Court could consider that document if it was in the
Reproduced Record, even though it was not in the record that had been
transmitted to the Court”).
2 Appellant’s motion for reconsideration alleged that Appellant “has made a
good faith effort to serve [Appellee], and that effort is ongoing, with the
[c]omplaint out for service with [Appellant’s] process server, to what
[Appellant] believes is [Appellee’s] most current address [in] Philadelphia.”
Appellant’s Mot. for Recons., 10/5/18, at ¶ 6. Appellant’s motion claimed that
at some unknown date after May 2018, Appellant located Appellee and,
apparently via certified mail, “sent the complaint for service to Waynesboro,
VA on August 22, 2018.” Id. at ¶ 4 (some capitalization omitted and
emphasis added). Appellant averred that the “certified mail was unclaimed,”
and that Appellant’s counsel located Appellee in Philadelphia, which prompted
Appellant to file her September 28, 2018 praecipe to reinstate. Id. Appellant
did not otherwise explain the absence of any action between May 9 and August
22.
3We note that Appellant improperly appealed from the October 26, 2018 order
denying reconsideration of the trial court’s October 3, 2018 order sustaining
Appellee’s preliminary objections and dismissing Appellant’s complaint.



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       and on October 31, 2018, Appellant [timely] filed a concise
       statement of matters complained of on appeal pursuant to
       Pa.R.A,P. 1925(b).

Trial Ct. Op., 1/3/19, at 1-2 (some initial capitalization omitted).

       Appellant raises two issues on appeal:

       [1.] Did the trial court err as a matter of law in sustaining
       [Appellee’s] preliminary objections and denying [Appellant’s]
       motion for reconsideration?

       [2.] Did the trial court commit an abuse of discretion in sustaining
       [Appellee’s] preliminary objections and denying [Appellant’s]
       motion for reconsideration?

Appellant’s Brief at 4.

       We summarize Appellant’s arguments for both of her issues together.4

Appellant contends that “the trial court failed to consider the merits” of her

case before sustaining Appellee’s preliminary objections.        Id. at 13.   In

Appellant’s view, the trial court disregarded her good faith efforts to serve



____________________________________________


Appellant should have appealed from the trial court’s October 3, 2018 order,
as that is a final appealable order. See U.S. Nat’l Bank v. Johnson, 487
A.2d 809, 814 (Pa. 1985). A petition for reconsideration does not toll the
thirty-day period for filing a timely appeal. Cheathem v. Temple Univ.
Hosp., 743 A.2d 518, 520 (Pa. Super. 1999). Because Appellant filed a notice
of appeal on October 30, 2018, which was within thirty days of the trial court’s
October 3, 2018 order, we will not quash the appeal, and we amend the
caption to reflect this is an appeal from the October 3, 2018 order.
4 Appellant’s brief does not comply with Pa.R.A.P. 2119(a), which states that
the “argument shall be divided into as many parts as there are questions to
be argued.” Pa.R.A.P. 2119(a). Instead, Appellant has a single argument
section.




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Appellee. Id. Appellant states that when she could not effectuate service on

Appellee in May 2018, she began attempting to locate Appellee in Virginia.

Id. at 17. Appellant asserts that when she located Appellee, she reinstated

the complaint on August 22, 2018, and attempted to serve Appellee via

certified mail, but the envelope was returned on September 14, 2018.5 Id.

Appellant again reinstated her complaint on September 28, 2018, after

believing she located Appellee in Philadelphia. Id. at 18. Appellant claims

that between May and August 2018, she diligently attempted to locate

Appellee.      Id.     Appellant, therefore, disagrees with the trial court’s

characterization that she acted in bad faith. Id. at 19. Moreover, Appellant

argues that her failure to file a response to Appellee’s preliminary objections

was an inadvertent oversight. Id. at 20.

       “Our standard of review of an order of the trial court overruling

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.” Mar-Eco, Inc. v. T & R & Sons Towing & Recovery, Inc., 837 A.2d

512, 514 (Pa. Super. 2003); accord Trexler v. McDonald’s Corp., 118 A.3d

408, 412 (Pa. Super. 2015).



____________________________________________


5 We note that Appellant’s motion for reconsideration did not indicate the
envelope was returned on September 14, 2018.


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      A defendant may file a preliminary objection on the basis that the

plaintiff did not serve the complaint properly. Pa.R.C.P. 1028.

      When a defendant challenges the court’s assertion of personal
      jurisdiction, that defendant bears the burden of supporting such
      objections to jurisdiction by presenting evidence. The burden of
      proof only shifts to the plaintiff after the defendant has presented
      affidavits or other evidence in support of its preliminary objections
      challenging jurisdiction.

Trexler, 118 A.3d at 412 (quotation marks and citations omitted).             The

defendant’s burden may be met by filing verified preliminary objections. Gall

v. Hammer, 617 A.2d 23, 24 (Pa. Super. 1992).

      Recently, in American Interior Const. & Blinds Inc. v. Benjamin’s

Desk, LLC, 206 A.3d 509 (Pa. Super. 2019), this Court summarized

McCreesh v. City of Phila., 888 A.2d 664 (Pa. 2005), and Lamp v. Heyman,

366 A.2d 882 (Pa. 1976), in resolving a service issue under the Mechanics’

Lien law.

      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

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          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.

          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).6

____________________________________________


6 The McCreesh Court noted it altered the Lamp holding to impose an
evidentiary burden on the plaintiff, as follows:

       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



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J-A13027-19


       Technical missteps notwithstanding, 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.

       What constitutes a good faith effort to serve legal process is a
       matter to be assessed on a case by case basis. . . .

       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.

       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, quotation marks, and alternations in

original omitted). Based on such reasoning, the Englert Court affirmed the

trial court’s entry of summary judgment in favor of the defendants on the

basis that the plaintiffs “failed to demonstrate a good faith effort to effectuate



____________________________________________


       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 (emphasis added and quotation marks, citations,
and footnote omitted).


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service,” such that the statute of limitations barred the plaintiffs’ claims. Id.

at 128.

      Instantly, because Appellee filed verified preliminary objections, the

burden shifted to Appellant to establish that she made a good faith, reasonable

effort to effectuate service. See McCreesh, 888 A.2d at 672; Englert, 932

A.2d at 124-25.      Here, Appellant filed a complaint on April 26, 2018,

attempted to serve Appellee on May 4, 2018, and per the May 9, 2018 affidavit

of non-service, acknowledged that Appellee may have moved to Virginia. The

docket, however, reflects no activity by Appellant between May 9, 2018, and

August 22, 2018, when Appellant filed a praecipe to reinstate her complaint.

Appellant did not identify any good faith efforts she made to locate and serve

Appellee in that time frame. Appellant did not file any motion for alternative

service. Indeed, Appellant did not file a response to Appellee’s preliminary

objections, which would have been an opportunity to challenge Appellee’s

allegations that Appellant failed to effectuate service.

      Regardless, Appellant filed a motion for reconsideration claiming that at

some point after May 4, 2018, she believed she located Appellee in Virginia

and mailed, via certified mail, the complaint on August 22, 2018. Appellant,

however, again did not explain what efforts she made to locate Appellee and

effectuate service between May and August 2018.            Appellant’s Mot. for

Recons. at ¶ 4. Appellant’s motion for reconsideration also averred that after

non-service in August 2018, she located Appellee in Philadelphia, which


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prompted her to reinstate the complaint on September 28, 2018.               Id.

Although Appellant averred that she made a “good faith effort,” her motion

for reconsideration did not otherwise explain or excuse the complete absence

of any action by Appellant between May and August 2018.

      In sum, as the trial court observed, Appellant did not allege, let alone

provide, any evidence of a “good faith investigation to locate, or any practical

efforts to serve, Appellee.”   Trial Ct. Op. at 5.   Given the burden was on

Appellant to establish she acted in good faith, the trial court did not abuse its

discretion in sustaining Appellee’s preliminary objections for lack of service.

See McCreesh, 888 A.2d at 672; see also Englert, 932 A.2d at 124-25.

Because Appellant did not establish the trial court abused its discretion, we

affirm the order below. See Mar-Eco, 837 A.2d at 514.

      Order affirmed.

      Judge Shogan joins the memorandum.

      Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/19




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