Harrigan, K. v. Forsythe, K.

• Court: Superior Court of Pennsylvania
• Decided: June 30, 2023
• Docket: 1421 MDA 2021
• Status: Unpublished

Opinion

J-A23039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

KATHERINE HARRIGAN, : IN THE SUPERIOR COURT OF ADMINISTRATRIX OF THE ESTATE OF : PENNSYLVANIA JOSHUA C. BULLOCK : : Appellant : : v. : : KIRSTEN FORSYTHE, SCOTT MASSEY : No. 1421 MDA 2021 AND OM MEDICAL GROUP, P.C. T/A : RED LION PAIN & PRIMARY CARE

Appeal from the Order Entered October 22, 2021 In the Court of Common Pleas of York County Civil Division at No(s): 2021-SU-000053

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*

DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 30, 2023

The record reveals Appellant, who was represented by an out-of-state

attorney admitted pro hace vice, filed her complaint just prior to the expiration

of the statute of limitations. In clear violation of the Rules of Civil Procedure

and relevant case law, Appellant inexplicably took no action on the complaint

for nearly three months, and when she did finally make an attempt at service,

it is undisputed that such service was defective.

The Majority reverses the Court of Common Pleas of York County’s order

sustaining the preliminary objections filed by Appellee Kirsten Forsythe,

Appellee Scott Massey, and Appellee OM Medical Group, P.C. t/a Red Lion Pain

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* Former Justice specially assigned to the Superior Court. J-A23039-22

& Primary Care (collectively “Appellees”) and dismissing the claims of

Katherine Harrigan (“Appellant”), administratrix of the Estate of Joshua C.

Bullock, in their entirety. The Majority concludes Appellant properly served

Appellees in a timely manner with her complaint, and, thus, the trial court did

not lack personal jurisdiction over Appellees under Pennsylvania Rule of Civil

Procedure 1028(a)(1).

Respectfully, I dissent from the Majority’s reversal of the trial court’s

holding that Appellant demonstrated a lack of good-faith effort to effectuate

service of the complaint. Appellant’s transparent stalling of the judicial

machinery, and her complete disregard for the Rules of Civil Procedure,

requires dismissal of the action. While I agree with the Majority that the Rules

should be interpreted “liberally,” such liberal interpretation should not lead to

a complete nullification of the Rules.

The Majority excuses Appellant’s lack of due diligence and violation of

the holdings in Lamp1 by concluding there is no evidence that Appellant

engaged in a course of conduct to stall the legal machinery that she set in

motion and otherwise fulfilled her legal duty to make a good-faith effort to

serve her complaint. See Majority Opinion at 24. However, here, as was

within its discretion, the trial court found the credible evidence established

1 Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976).

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that Appellant did not meet her burden of good-faith, and I find no abuse of

discretion.

Moreover, the Majority finds “operative notice” of the complaint was

given by the admission of counsel pro hace vice. Respectfully, there is no

case law supporting this holding, which unduly enlarges our Supreme Court’s

holdings in Lamp and its progeny. It is well-settled that “[i]n the seminal

case of [Lamp, supra,] th[e] [Supreme] Court sought to end abuses of

process by plaintiffs who tolled the statute of limitations by filing a writ of

summons, had the writ repeatedly reissued, and deliberately failed to notify

the defendant of the pending litigation.” McCreesh v. City of Philadelphia,

585 Pa. 211, 888 A.2d 664, 665 (2005). “This process, while technically

compliant with the Rules of Civil Procedure, nonetheless defeated the purpose

of the statute of limitations, which is to protect defendants from stale

claims.” Id. Thus, in Lamp, the Supreme Court held that “a writ of summons

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

[she] has just set in motion.” Lamp, supra, 366 A.2d at 889. This

“Lamp rule” applies equally to actions commenced by way of the filing of a

complaint. Gussom v. Teagle, ___ Pa. ___, 247 A.3d 1046 (2021).

“Stated more in the affirmative, Lamp requires plaintiffs to act diligently

to meet their good-faith requirement to effectuate service of process upon

defendants so as not to dilute the policies underlying the statute of

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limitations.” Gussom, supra, 247 A.3d at 1056 (citing Lamp, supra, 366

A.2d at 889) (“Our purpose 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.”)).

Our Supreme Court refined the Lamp rule in Farinacci v. Beaver

County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757,

759 (1986), holding that “Lamp requires of plaintiffs a good-faith effort to

effectuate notice of commencement of the action.” In addition, Farinacci

clarified that: (1) the plaintiff carries an evidentiary burden of proving that

she made a good-faith effort to ensure that notice of the commencement of

an action was served on the defendant, McCreesh, supra, 888 A.2d at 672;

and (2) “[i]n each case, where noncompliance with Lamp is alleged, the [trial]

court must determine in its sound discretion whether a good-faith effort to

effectuate notice was made[.]” Farinacci, supra, 511 A.2d at 759.

In applying Farinacci, our Supreme Court in McCreesh expressed that

when plaintiffs’ improper actions in serving original process put defendants on

actual notice of the commencement of actions, trial courts should “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.” McCreesh, supra, 888 A.2d at 674.

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Recently, in Gussom, supra, our Supreme Court explained the

following:

Importantly, [the Supreme Court’s] decision in Farinacci did nothing to lessen a plaintiff’s burden to act diligently in promptly serving notice of the commencement of an action on a defendant so as not to thwart the purpose of the statute of limitations. Indeed, the Farinacci Court ultimately concluded that the plaintiff therein failed to establish a good-faith effort to serve a writ where a four-week delay in service was attributable to counsel’s negligence in forgetting to take the necessary steps to effectuate service of the writ. Id. at 759-60. In McCreesh, the Court sought to resolve a pattern of conflicting opinions from the intermediate courts. On the one hand, some of those decisions required plaintiffs to comply strictly with the rules regarding service to satisfy the Lamp-Farinacci good-faith requirement, while, on the other hand different panels allowed “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[.]” McCreesh, supra, 888 A.2d at 666. After explaining that “[n]either our cases nor our rules contemplate punishing a plaintiff for technical missteps where [s]he has satisfied the purpose of the statute of limitations by supplying a defendant with actual notice[,]” the Court stated that it embraced the logic of cases which “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.” McCreesh, supra, 888 A.2d at 674. Although McCreesh made clear that a plaintiff could fulfill her good-faith service mandate without strictly complying with the service rules as long as her efforts resulted in actual notice of the lawsuit to the defendant, like Farinacci, McCreesh did nothing to modify a plaintiff’s duty to act diligently to serve notice of the commencement of an action so as not to undermine the policies that drive the statute of limitations. Nor, for that matter, did McCreesh change the rule clarified in Farinacci that the plaintiff carries an evidentiary burden to prove that she made a good-faith effort to effectuate service of process in a timely manner. To the contrary, as observed throughout this opinion, the McCreesh Court alluded to this evidentiary requirement. See id. at 672

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(“We subtly altered our holding in Lamp in Farinacci, requiring plaintiffs to demonstrate ‘a good-faith effort to effectuate notice of commencement of the action.’”). In sum, Lamp and its progeny require a plaintiff to make a good-faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that she met her good-faith mandate. If a plaintiff presents credible evidence that she made this attempt at service, then she fulfills her requirement to prove good faith. If a plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether her actions (or inaction) were intentional, unintentional, or otherwise. However, pursuant to McCreesh, a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff’s failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

Gussom, supra, 247 A.3d at 1056-57.

Moreover, this Court has determined that “[w]hat 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) (citations omitted). “The inquiry into whether a plaintiff acted in good

faith lies within the sound discretion of the trial court.” Englert v. Fazio

Mechanical Services, Inc., 932 A.2d 122, 125 (Pa.Super. 2007) (citation

and quotations omitted).

In the case sub judice, there is no dispute Appellant filed her complaint

on January 12, 2021, which was just days before the expiration of the statute

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of limitations. She did not effectuate proper service, and on April 28, 2021,

she reinstated the complaint.

As outlined in detail supra, “the law required [Appellant] to act diligently

in serving original process on [Appellees] so as not to undermine the policies

that animate the statute of limitations.” Gussom, supra, 247 A.3d at 1057.

Concerning this requirement, the trial court examined the actions taken by

Appellant and concluded the following:

The [trial] court finds that [Appellant] has failed to meet [her] burden. First, [Appellant], inexplicitly, made absolutely no effort to serve [Appellees] within the time constraints of the rules. No reason was given as to why [she] did not make any attempt to serve [Appellees] for several months thereafter. [Appellant] was able to timely file the complaint despite a significant number of issues that made it difficult to do so. To be clear, the preparing and filing of the complaint was the difficult part. Once filed, all [Appellant] needed to do was file a Request for Service and pay the applicable fee to the Sheriff’s Department for service to occur. *** [T]he relevant inquiry is what action was taken by [Appellant] to attempt service. In other words, it is [Appellant’s] actions that are relevant, not the Prothonotary’s….Here, [Appellant] did absolutely nothing to serve [Appellees as to the initial complaint until nearly three months later]. Therefore, it is impossible for [Appellant] to argue that [her] attempts at service [fulfilled the good-faith mandate] to [Appellees] when it is undisputed that [she] made no attempt at all to serve [Appellees] with a copy of the complaint within the applicable time period.

Trial Court Opinion, filed 8/3/21, at 8-9.

I find no abuse of discretion or error of law in the trial court’s sound

reasoning. Here, as the trial court concluded, while Appellant filed her

complaint within the statute of limitations, she took no steps to serve the

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complaint until April of 2021, nearly three months later. It is undisputed this

service was defective.

On April 20, 2021, over three months after the statute of limitations

would have expired on Appellant’s claim but for the filing of the complaint,

Appellee Massey filed the first preliminary objections raising a factual question

as to whether Appellant fulfilled her legal duty to make a good-faith effort to

serve her complaint.2 At that point, Appellant had an obligation to produce

evidence to demonstrate that she met this duty, yet, she offered no such

evidence.”3 See Gussom, supra.

Accordingly, I conclude the trial court properly entered an order

sustaining Appellee Massey’s, and then subsequently Appellees Forsythe’s and

OM’s, preliminary objections, and dismissing Appellant’s claims against them

due to her failure to make good-faith efforts to serve the complaint on them.

Stated succinctly, Appellant failed to prove that she acted diligently in

attempting to make her good-faith effort to serve Appellees with original

process. See Gussom, supra. The touchstone of Lamp is a good-faith effort

2 As indicated by the Majority, Appellees Forsythe’s and OM’s preliminary objections followed thereafter.

3 I note Appellant advanced no argument on appeal as it relates to her delay in attempting service. In any event, I note “it is not necessary 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.” Ferrara v Hoover, 636 A.2d 1151, 1152 (Pa.Super. 1994) (citation omitted).

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to complete service that evinces a lack of intent to stall the judicial machinery

or prejudice the defendant. See id.

Moreover, I disagree with the Majority that the Prothonotary’s service

of the court’s February 5, 2021, order admitting Attorney Shepard pro hac

vice somehow fulfilled or replaced Appellant’s good-faith effort to complete

service that evinced a lack of intent to stall the judicial machinery.

As set forth above, Appellant, the plaintiff in this matter, bore the

evidentiary burden of demonstrating she met the good-faith mandate. See

Gussom, supra. I agree with the trial court that the Prothonotary’s mailing

of a pro hac vice admission order does not constitute a good-faith attempt by

Appellant to effectuate either service or serve as “operative” notice of the

lawsuit. See Gussom, supra (although the defendant’s counsel entered an

appearance, there is no evidence of record that would establish good-faith

efforts by the plaintiff); Williams v. Shannon, No. 2083 MDA 2019, 2021 WL

2029815 (Pa.Super. filed 5/21/21) (unpublished memorandum)4 (holding the

plaintiff’s communications with a defendant’s insurance carrier do not

constitute a good-faith attempt at either service or notice of a lawsuit).

As our Supreme Court has explained, to meet the good-faith effort

mandate, the plaintiff must act diligently to timely serve notice of the

commencement of an action so as not to undermine the polices that drive the

4Pa.R.A.P. 126(b) provides that non-precedential decisions of this Court, which are filed after May 1, 2019, may be cited for their persuasive value.

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statute of limitations. See Gussom, supra. The service does not have to

have been perfect, and “[i]f a plaintiff presents credible evidence that she

made this attempt at service, then she fulfills her requirement to prove good

faith.” Gussom, supra, 247 A.3d at 1057. As our Supreme Court has held:

[P]ursuant to McCreesh, a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff’s failure to serve process properly evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.

Gussom, supra, 247 A.3d at 1057.

Here, there is no dispute Appellant waited nearly three months to

attempt to serve her complaint, and when she finally attempted service, it

was improper. Absent from the record is any evidence of Appellant’s “diligent

attempts at service[.]” See id. I specifically disagree with the Majority that

the Prothonotary’s mailing of an order related to counsel’s admission pro hac

vice served as a substitute for Appellant’s obligation to engage in “a good-

faith effort” to “diligently and timely” serve Appellees.5 Id.

5 In any event, assuming, arguendo, the Prothonotary’s service of an order granting counsel’s admission pro hac vice satisfied Appellant’s good-faith obligation to provide timely notice of the commencement of this matter, I would affirm on the basis that Appellant’s “failure to serve process properly evinced an intent to stall the judicial machinery[.]” Gussom, supra, 247 A.3d at 1057. Appellant filed her complaint just prior to the expiration of the statute of limitations and then inexplicably sat on the complaint for nearly three months before attempting her defective service. Thus, I find the trial court (Footnote Continued Next Page)

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The trial court properly concluded that Appellant’s inaction, followed by

her defective service of the complaint, required the dismissal of this action.

Accordingly, I dissent.

did not abuse its discretion in concluding this was an intent to stall the judicial machinery Appellant set in motion.

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