Harrigan, K. v. Forsythe, K.

• Court: Superior Court of Pennsylvania
• Decided: November 26, 2025
• Docket: 523 MDA 2025
• Status: Unpublished

Opinion

J-S40005-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

KATHERINE HARRIGAN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KIRSTEN FORSYTHE AND SCOTT : No. 523 MDA 2025 MASSEY AND OM MEDICAL GROUP, : P.C., T/A RED LION PAIN & PRIMARY : CARE :

Appeal from the Order Entered March 25, 2025 In the Court of Common Pleas of York County Civil Division at No(s): 2021-SU-00053

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY LAZARUS, P.J.: FILED: NOVEMBER 26, 2025

Katherine Harrigan, Administratrix of the Estate of Joshua C. Bullock,

Deceased (decedent), appeals from the order, entered in the Court of

Common Pleas of York County, sustaining Appellee Kirsten Forsythe’s1

preliminary objections for lack of personal jurisdiction based on defective

service in this wrongful death/medical malpractice case.2 See Pa.R.C.P. ____________________________________________

1 Although the trial court granted the preliminary objections of all the defendants (Appellees) below, including Scott Massey, MD, and OM Medical Group, P.C. (OM), t/a Red Lion Pain & Primary Care, the instant appeal only involves Defendant Forsythe. Doctor Massey is a medical doctor who also worked at Red Lion.

2 Although Harrigan also appeals from the trial court’s April 2, 2025 order denying her motion to reconsider the court’s March 25, 2025 order sustaining Defendants’ preliminary objections, the appeal properly lies from the final order sustaining preliminary objections. Cheathem v. Temple University (Footnote Continued Next Page) J-S40005-25

1028(a)(1). After careful review, we find Harrigan has waived her claims on

appeal. Thus, we affirm.

Harrigan was appointed administratrix of decedent’s estate; decedent is

Harrigan’s son and was twenty-seven years old at the time of his death. In

August 2018, Forsythe, a certified registered nurse practitioner (CRNP),

worked at the Red Lion Pain & Primary Care Clinic (Red Lion Clinic) where she

provided care to decedent, who was complaining of right knee pain. Forsythe

diagnosed decedent with Osgood Schlater’s disease, which included bone and

ligament separation and a left medial tibial plateau fracture. Forsythe

prescribed 5 mg tablets of Oxycodone, to be taken by mouth twice daily as

needed for pain. Forsythe also prescribed decedent take one 10 mg Oxycontin

tablet twice a day.3

In September 2018, Decedent returned to Red Lion Clinic where he was

seen again by Forsythe. Forsythe commented that decedent was “healing

well,” noted decedent’s orthopedic doctor did not find decedent to be a good

candidate for right knee surgery, and substituted decedent’s Oxycontin

prescription for 25 mcg fentanyl transdermal patches to be taken every 48

hours. Forsythe also increased decedent’s 5 mg oxycodone prescription from

twice daily to four times a day. Over the next few months, decedent’s ____________________________________________

Hosp., 743 A.2d 518, 521 (Pa. Super. 1999). Because Harrigan filed a notice of appeal within thirty days of the date of the court’s order sustaining the preliminary objections, this appeal is timely. See Pa.R.A.P. 903(a). 3 Oxycontin is a time-release version of oxycodone.

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medication was adjusted several times. Each time there was a medication

change, Forsythe submitted the change and Dr. Massey reviewed and agreed

with the assessment.

On January 8, 2019, “decedent’s medication was changed to substitute Dilaudid for [o]xymorphone [5 mg two times] per day and the [f]entanyl prescription remained the same. This changed prescription kept decedent’s opioid levels above 120 MME/day. The decedent died on January 16, 2019, eight days after his last visit to Red Lion [Clinic]. The cause of death was determined to be ‘acute fentanyl toxicity.”

Trial Court Opinion, 8/3/21, at 1-4.

On January 12, 2021, Harrigan filed a complaint raising negligence,

professional liability, and wrongful death claims against Appellees. On

February 2, 2021, Harrigan filed a motion for pro hoc vice admission of Ray

M. Shepard, Esquire, as additional counsel. Three days later, the court

granted Harrigan’s motion; the certified record contains a notation that the

York County Prothonotary’s Office provided Pa.R.C.P. 236 notice of the order

that same day. On April 15, 2021, Harrigan filed three notarized affidavits of

service on Massey, Forsythe, and OM. With regard to Forsythe, Steven M.

Silver, a process server, indicated he “served [process] upon Kirsten Forsythe

P/K/A Kristen Forsythe . . . on the 11th day of April, 2021, at [] Plank Road,

Stewartstown, Pennsylvania[,] 17363[,] at 11:45 a.m. [by] delivering and

leaving with the person served[.]” Silver Affidavit of Service, 4/15/21, at 1

(unpaginated).

On April 28, 2021, Harrigan filed a praecipe to reinstate the original

complaint. Less than three weeks later, Harrigan filed returns of service from

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the sheriff, including one that stated the complaint was “personally handed .

. . to a person representing themselves to be Appellee Forsythe at the Plank

Road address[.]” See Sheriff’s Return of Service, 5/17/21, at 1

(unpaginated). On May 11, 2021, Forsythe filed preliminary objections to

Harrigan’s complaint, alleging that Harrigan did not toll the statute of

limitations on her action because she did not effectuate proper service where

she continually failed to reinstate the complaint such that actual notice could

be established.

On August 13, 2021, the trial court sustained Forsythe’s preliminary

objections and dismissed all claims against her, concluding that Harrigan:

made no effort to serve the defendants within the time constraints of the

rules; did not give a reason why she did not make any attempt to serve the

defendants for several months; and, despite many difficult issues (including

COVID-19), she was able to timely file the complaint, but not effectuate proper

service. See Trial Court Opinion, 8/3/21, at 8-9. The court further stressed

the fact that Harrigan’s action failed to “result in actual notice” to defendants.

Id. at 8. The court stated:

[Harrigan] did absolutely nothing to serve [defendants as to the initial complaint until nearly three months later]. Therefore, it is impossible for [Harrigan] to argue that [her] attempts at service [were in good faith] when it is undisputed that [she] made no attempt at all to serve [defendants] with a copy of the [c]omplaint within the applicable time[-]period.[4] ____________________________________________

4 Harrigan filed the complaint on January 12, 2021, and the statute of limitations on her claims expired on January 16, 2021. Harrigan made no good faith attempt to serve the complaint on Forsythe until April 2021.

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Id. at 8-9.

On October 29, 2021, Harrigan filed a notice of appeal from the trial

court’s August 3, 2021 order sustaining Forsythe’s preliminary objections. In

her Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

Harrigan raised the sole issue of the trial court’s interpretation of Gussom v.

Teagle, 247 A.3d 1046 (Pa. 2021), a case that addressed whether a plaintiff

acted diligently in attempting to make a good-faith effort to effectuate service

on the defendant. Gussom held that, regardless of whether notice of

commencement of an action arises from a plaintiff’s “action or inaction,” the

“critical inquiry is . . . whether [a defendant] received actual notice of the

commencement of the action timely.” Pa.R.A.P. 1925(b) Statement,

10/10/21, at 2, citing Gussom, supra at 1057-58.

On appeal, a divided Superior Court panel5 reversed the trial court’s

order sustaining Forsythe’s preliminary objections and remanded for further

proceedings, concluding that Harrigan “provided actual, albeit defective,

notice when she employed private process servers . . . to serve the complaints

on the three Appellees [and that] it is undeniable that Appellees were put on

notice of the impending lawsuit, and therefore, they endured no unfair

____________________________________________

5 President Judge Emeritus Correale F. Stevens filed a dissenting memorandum in Forsythe stating that he believed Harrigan did not make a good-faith effort to effectuate service of the complaint on Appellees, that she was “transparent” in her actions that stalled the judicial machinery, and that she “complete[ly] disregard[ed] the Rules of Civil Procedure.” Id. at * 31- *32. Thus, P.J.E. Stevens concluded that the trial court properly dismissed the action due to Harrigan’s inaction, followed by the defective service of the complaint. Id. at *42. -5- J-S40005-25

surprise or prejudice.” Harrigan v. Forsythe, 301 A.3d 941, *29 (Pa. Super.

2023) (Table). Our Court further found that, under Gussom, “it is obvious

from the record that [Harrigan] met the burden [and produced evidence

demonstrating she fulfilled her legal duty to make a good-faith effort to serve

her complaint,] as evinced by the actual and operative notices, and that no

further evidentiary support was needed to satisfy this burden.” Id. at 30.

On October 9, 2023, Forsythe filed a petition for allowance of appeal

seeking the Supreme Court’s discretionary review of the matter, citing a

conflict among Superior Court decisions and between the Superior Court and

Commonwealth Court cases on the issue of service of process. See Petition

for Allowance of Appeal, 9/9/23, at ii-iii. On June 5, 2024, the Supreme Court

granted Forsythe’s petition, vacated the trial court’s decision, and remanded

the matter “for reconsideration in light of [the Supreme] Court’s decision in

Ferraro v. Patterson-Erie Corp., [] 313 A.3d 987 [] (Pa. [] 2024).” Per

Curiam Order, 6/5/24.

Following remand, on March 21, 2025, the trial court entered an order

sustaining Forsythe’s preliminary objections for lack of personal jurisdiction

and dismissing Harrigan’s complaint. Substantively, the court found that,

based upon Ferraro, Harrigan did not exercise reasonable diligence or make

any “reasonable attempts [] at effectuating service in a timely manner and,

thus, the court lacked personal jurisdiction over Defendant. See Pa.R.A.P.

1925(a) Memorandum Opinion, 3/21/25, at 8-9.

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On March 31, 2025, Harrigan filed a motion for reconsideration of the

court’s decision granting Forsythe’s preliminary objections, raising, for the

first time, the issue of Forsythe’s waiver of the improper service of process

issue due to her “utilizing the power of the court to subpoena medical and

other records related to the merits of the litigation.” 6 Motion for

Reconsideration, 3/31/25, at 6. In her reconsideration motion, Harrigan

argued that Forsythe’s attorney, Michael E. McGilvery, Esquire, filed

certificates to serve subpoenas on June 8, 2021 and June 30, 2021, and also

issued four separate subpoenas to obtain decedent’s records from doctors and

other health care providers around this same timeframe of June 2021.7 On

April 1, 2025, the court denied Harrigan’s motion for reconsideration.

6 Generally, courts acquire personal jurisdiction over a defendant by service

of process. See Pa.R.C.P. 402. If a plaintiff is unable to serve the complaint within the period prescribed by the rules, the plaintiff may file a praecipe for the reissuance of the writ or reinstatement of the complaint in order to continue its validity. See Pa.R.C.P. 401(b). However,

effective service of process is not the only means by which a court acquires in personam jurisdiction. Such jurisdiction also may be obtained through waiver or consent. Our courts have held that a defendant manifests the intent to submit to the court’s jurisdiction when the defendant takes some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the defective service.

Sharpe v. McQuiller, 206 A.3d 1179, 1184 (Pa. Super. 2019) (internal quotations and citations omitted); id. at 1187 (defendant waived any objection to service of process by participating in discovery). 7 Harrigan’s motion for reconsideration only lists the date that the subpoenas

were issued to two doctors. She fails to list the date the other subpoenas were issued to the remaining providers and entities. -7- J-S40005-25

On April 17, 2025, Harrigan filed a notice of appeal from the trial court’s

order sustaining Forsythe’s preliminary objections and from the trial court’s

order denying her motion for reconsideration. See supra at n.1. On May 12,

2025, Harrigan filed her Rule 1925(b) statement, raising the claim that

Forsythe waived her objection to improper service and that the court made its

decision “without consideration of [the waiver of service issue] and without a

hearing or the presentation of any evidence.” Pa.R.A.P. 1925(b) Statement,

5/12/25, at 2. Notably, Harrigan also stated that she “d[id] not intend to

challenge the trial court’s interpretation or application of Ferraro [] on

appeal.” Id. at 4.

On May 13, 2025, the trial court issued its Rule 1925(a) opinion, noting

that the case had been remanded for “reconsideration in light of [] Ferraro”

and that, “[i]n accordance with that directive, th[e c]ourt issued a

supplemental [Rule 1925(a)] opinion[.]” Pa.R.A.P. 1925(a) Opinion, 5/13/25,

at 1-2. The trial court found that Harrigan “now seeks to raise additional

issues on appeal [that] were neither presented nor preserved during the initial

appellate proceedings . . . and due to the untimely nature of the inclusion in

the present appeal, th[e c]ourt respectfully requests that this [] appeal should

be denied.” Id. at 2.

On appeal, Harrigan presents the following issues for our review:

(1) Whether [] Forsythe waived her objection to improper service and lack of personal jurisdiction by wielding the power of the court to issue subpoenas demanding third parties produce to her medical and other records relating to [decedent]?

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(2) Whether [the trial court] was required to consider evidence on the issue of Forsythe’s waiver of improper service and lack of personal jurisdiction where: (1) the defendant’s preliminary objection was pursuant to Rule 1028(a)(1) (improper service); (b) [Harrigan] informed the trial court of evidence raising a factual dispute by way of plaintiff’s [a]pplication to [s]upplement the [r]ecord filed in the trial court on March 21, 2022; (c) [Harrigan] raised the issue of [] Forsythe’s waiver of her objection to lack of personal jurisdiction in the first appeal to this Court; (d) [the trial court] issued the instant [o]rder again granting defendant Forsythe’s preliminary objections without a hearing and without allowing any additional briefing by the parties; and (e) the plaintiff filed a [m]otion for [r]econsideration expressly asking [the trial court] to consider the evidence attached thereto.

Appellant’s Brief, at 5-6.

Before addressing the merits of Harrigan’s issues, we must determine

whether she has properly preserved those claims for review. Both the trial

court and Forsythe assert that Harrigan has waived the issues on appeal by

failing to raise them before the trial court prior to her first appeal from the

grant of preliminary objections. We agree.

In the instant matter, the Supreme Court specifically directed the trial

court to reconsider the matter in light of Ferraro, a case that the Court

decided less than two months before it granted Forsythe’s discretionary

petition and one that was directly on point with the parties’ service of process

issue raised in Harrigan’s direct appeal. Harrigan explicitly states in her Rule

1925(b) statement that she is not challenging the trial court’s ruling on the

matter in light of Ferraro. Rather, Harrigan limits this appeal to raising an

entirely new issue—Forsythe’s alleged waiver of the claim of improper

service/lack of jurisdiction. The first time that Harrigan raised this claim in

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this appeal was in her motion for reconsideration of the instant order filed on

March 31, 2025, just shy of four years from the date that she filed her

opposition to Forsythe’s preliminary objections and over three and one-half

years from the trial court’s initial order sustaining Forsythe’s preliminary

objections.8

Moreover, the docket activity that Harrigan claims waives Forsythe’s

improper service argument occurred as early as May 2020 and as late as May-

June 2021—still months before the trial court entered its order sustaining

Forsythe’s preliminary objections and dismissing Harrigan’s complaint. Thus, ____________________________________________

8 On March 9, 2022, Harrigan filed an application to supplement the record on

appeal in this Court in an effort to include the notices of intent to serve subpoenas for the decedent’s medical records as well as a certificate prerequisite to service of the subpoena for each of the four subpoenas. Her application states that the evidence is material to an issue pending on appeal— namely, waiver of Forsythe’s jurisdictional argument. See Application to Supplement Record in 1421 MDA 2021, 3/9/22, at 4. Our Court denied the application without prejudice for Harrigan to seek the relief requested in the trial court. See Per Curiam Order, 3/18/22. Harrigan then filed an application to supplement the record in the trial court twelve days later, on March 21, 2022. On April 6, 2022, the trial court denied Harrigan’s application, noting that the court’s review was “limited to . . . the averments of the pleading which faced objection. Notably, here there was an objection lodged as to proper service of original process. . . . The proposed addition of after[-] discovered evidence is not appropriate for appellate review, as it was not first raised before the trial court. See Pa.R.A.P. 302(a).” Order, 4/6/22.

Notably, Harrigan’s Rule 1925(b) statement in the appeal at 1421 MDA 2021 failed to include the waiver argument; the only mention of the issue is in footnote 5 in her appellate brief. See Appellant’s Brief, 3/9/22, at 14 n.5. Despite this procedural history, Harrigan has attached the application to supplement to the reproduced record in the current appeal. In any event, as we note above, the claimed docket activity giving rise to Harrigan’s waiver claim occurred prior to the court deciding Forsythe’s preliminary objections in August 2021.

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Harrigan had the opportunity to raise the issue before the trial court ruled on

the preliminary objections; her failure to do so results in waiver. See

Pa.R.A.P. 302(a). See also Murray v. Am. Lafrance, LLC, 234 A.3d 782,

787-88 (Pa. Super. 2020) (en banc) (once defendant objects to lack of

personal jurisdiction by filing preliminary objections, plaintiff has burden of

proving personal jurisdiction; where plaintiff raises “fresh claim” or alternative

basis for personal jurisdiction for first time on appeal, claim is waived).

Alternatively, “where a case is remanded to resolve a limited issue, only

matters related to the issue on remand may be appealed.” Commonwealth

v. Lawson, 789 A.2d 252, 253 (Pa. Super. 2001), citing Commonwealth v.

Jackson, 765 A.2d 389 (Pa. Super. 2000). Thus, Harrigan is also estopped

from raising a new claim at this juncture where the Supreme Court limited its

remand order by directing the trial court to reconsider the service of process

issue solely in light of the new holding in Ferraro.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 11/26/2025

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