J. A18017/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FERNANDO MELENDEZ, IN THE SUPERIOR COURT OF
AS ADMINISTRATOR OF THE ESTATE : PENNSYLVANIA
OF DAMARIS REYES, DECEASED,
Appellant
v.
THE GOOD SAMARITAN HOSPITAL OF :
LEBANON, PENNSYLVANIA; No. 1496 MDA 2015
LEBANON EMERGENCY PHYSICIANS;
THE GOOD SAMARITAN HOSPITAL
Appeal from the Order Entered August 3, 2015,
in the Court of Common Pleas of Lebanon County
Civil Division at No. 2014-01221
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 08, 2017
Fernando Melendez, as Administrator of the Estate of Damaris Reyes,
Deceased, appeals the order of the Court of Common Pleas of Lebanon
County that granted the motion for judgment on the pleadings of The Good
Samaritan Hospital of Lebanon, Pennsylvania, and Lebanon Emergency
Physicians, and The Good Samaritan Hospital. We reverse.
The facts as recounted by the trial court are as follows:
Damaris Reyes visited the emergency room at
Good Samaritan Hospital on July 25, 2012 because
she was experiencing vomiting, diarrhea, shortness
of breath, headaches and back pain. About four
* Former Justice specially assigned to the Superior Court.
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hours after arriving at the hospital, Ms. Reyes was
pronounced dead. According to [appellant], her
death was a direct result of doctors' failure to timely
recognize and treat septic shock, among other
things.
On July 3, 2014, [appellant] filed a Complaint,
accompanied by the required certificates of merit,
alleging corporate negligence and vicarious liability
seeking both wrongful death and survival damages
against Good Samaritan Hospital and Lebanon
Emergency Physicians (collectively [appellees]). The
Complaint was returned to [appellant] on the same
day for reasons unknown, and the following notation
was entered on the docket: "ATTORNEY SERVICE,
NOTATION FOR THE RECORD."
[Appellant] believes that one of its staff
members mistakenly attempted service via a private
process server. During the period of time that
[appellant] believed service was being attempted,
the staff member left the employ of [appellant].
When [appellant] became aware of [the] error, he
reinstated the Complaint on August 6th; the Lebanon
County Sheriff properly effectuated service on the
11th.
[Appellees] seek judgment on the pleadings,
arguing that [appellant's] claim is barred by the
statute of limitations. [Appellant] acknowledges that
service of the Complaint occurred beyond the
deadline date. However, [appellant] believes that
extenuating circumstances should be considered by
this Court.
Trial court opinion, 8/4/15 at 2-3.
By order dated August 3, 2015, the trial court granted the motion for
judgment on the pleadings.
Appellant appealed to this court and raises the following issue for
review:
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Whether the Trial Court erred in granting the
[appellees'] Motion for Judgment on the Pleading
[sic] on the basis of defective service where the
[appellant] successfully effectuated service on
[appellees] in accordance with the Rules of Civil
Procedure and Lebanon County local practice
thirty-nine (39) days after the original filing of the
Complaint and within thirty (30) days of the
expiration of the Statute of Limitations, and where
[appellees] suffered no prejudice as a result of the
nine (9) day delay in service?
Appellant's brief at 5.
[Appellate review of an order granting a
motion for judgment on the pleadings] is
plenary. The appellate court will apply
the same standard employed by the trial
court. A trial court must confine its
consideration to the pleadings and
relevant documents. The court must
accept as true all well pleaded
statements of fact, admissions, and any
documents properly attached to the
pleadings presented by the party against
whom the motion is filed, considering
only those facts which were specifically
admitted. Further, the court may grant
judgment on the pleadings only where
the moving party's right to succeed is
certain and the case is so free from
doubt that trial would clearly be a
fruitless exercise.
Steiner v. Bell of Pennsylvania, 426 Pa.Super. 84,
87-88, 626 A.2d 584, 586 (1993). (Citations and
footnote omitted). We must determine if the trial
court's action was based on a clear error of law or
whether there were facts disclosed by the pleadings
which should properly go to the jury. Kelly v.
Nationwide Insurance Company, 414 Pa.Super.
6, 10, 606 A.2d 470, 471 (1992).
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Kafando v. State Farm Mut. Auto. Ins. Co., 704 A.2d 675, 676
(Pa.Super. 1998).
A motion for judgment on the pleadings is governed by
Pa.R.C.P. 1034, which provides:
(a) After the pleadings are closed, but within such
time as not to delay the trial, any party may
move for judgment on the pleadings.
(b) The court shall enter such judgment or order
as shall be proper on the pleadings.
Pa.R.Civ.P. 1034(a -b).
Initially, appellant contends that the trial court erred when it dismissed
the present action on the basis of defective service and the running of the
statute of limitations when appellant timely filed, reinstated, and served the
complaint in compliance with the statute of limitations and the Pennsylvania
Rules of Civil Procedure.
As the parties agree, the statute of limitations for medical malpractice
and wrongful death actions in Pennsylvania is two years. See 42 Pa.C.S.A.
§ 5524. Damaris Reyes died on July 25, 2012. According to appellant,
Reyes's death was caused by the negligent actions of appellees. Appellant
filed a complaint on July 3, 2014, prior to the expiration of the statute of
limitations but did not serve appellees at that time.
It is well settled in this Commonwealth pursuant to
Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882
(1976), and Farinacci v. Beaver County
Industrial Development Authority, 510 Pa. 589,
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511 A.2d 757 (1986), that service of original process
completes the progression of events by which an
action is commenced. Once an action is commenced
by writ of summons or complaint the statute of
limitations is tolled only if the plaintiff then makes a
good faith effort to effectuate service. Moses v.
T.N.T. Red Star Express, 725 A.2d 792
(Pa.Super.1999), appeal denied, 559 Pa. 692, 739
A.2d 1058 (1999). "What constitutes a 'good faith'
effort to serve legal process is a matter to be
assessed on a case by case basis." Id. at 796;
Devine v. Hutt, 863 A.2d 1160, 1168
(Pa.Super.2004) (citations omitted). "[W]here
noncompliance with Lamp is alleged, the court must
determine in its sound discretion whether a
good -faith effort to effectuate notice was made."
Farinacci at 594, 511 A.2d at 759.
In making such a determination, we have explained:
It isnot 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.
Devine, supra at 1168 (quoting Rosenberg v.
Nicholson, 408 Pa.Super. 502, 597 A.2d 145, 148
(1991), appeal denied, 530 Pa. 633, 606 A.2d 903
(1992)). "[A]lthough 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 were
reasonable." Bigansky v. Thomas Jefferson
University Hospital, 442 Pa.Super. 69, 658 A.2d
423, 433 (1995), appeal denied, 542 Pa. 655, 668
A.2d 1119 (1995).
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Englert v. Fazio Mech. Services, Inc., 932 A.2d 122, 124-125 (Pa.Super.
2007), appeal denied, 938 A.2d 1053 (Pa. 2007).
In McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), a
plaintiff filed a writ of summons but served it by certified mail in violation of
the Pennsylvania Rules of Civil Procedure. The plaintiff subsequently
reinstated the writ after the expiration of the statute of limitations and then
made proper service. The City of Philadelphia filed preliminary objections on
the basis that service of the original writ did not comply with the rules. The
Court of Common Pleas of Philadelphia County overruled the preliminary
objections. The Commonwealth Court reversed and remanded for dismissal
of the case. Id., 888 A.2d at 666-669.
On appeal, the Supreme Court of Pennsylvania formally adopted the
more flexible approach outlined by this court in Leidich v. Franklin, 575
A.2d 914 (Pa.Super. 1990), appeal denied, 584 A.2d 319 (Pa. 1990),[1]
1
In Leidich, Virginia Leidich ("Leidich") suffered personal injuries on April 4,
1986, when her vehicle collided with another automobile owned by David
and Irene Franklin ("the Franklins"). On January 4, 1988, Leidich filed a
praecipe for the issuance of a writ of summons with the Dauphin County
prothonotary. Written on the back of the writ was "writ to atty. 1/4/87 RB."
The notation mistakenly identified the year as 1987 instead of 1988. The
writ was served upon the Franklins by first class mail dated January 5, 1988,
and was not served by the sheriff. Also, on January 5, 1988, the Franklins
were served with a notice to appear for a deposition on February 2, 1988.
The Franklins' attorney objected to the deposition, and the parties agreed to
postpone the deposition indefinitely. From March 15, 1988 through April 4,
1988, Leidich submitted medical bills to the Franklins' insurer with respect to
the possible settlement of the claim for the policy limits. Leidich, 575 A.2d
at 915.
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which allowed for the continued validity of the writ despite technical
non-compliance with the Rules so long as the defendant received actual
notice and was not prejudiced. The McCreesh court rejected the strict
approach of cases such as Teamann v. Zafris, 811 A.2d 52 (Pa.Cmwlth.
2002), appeal denied, 830 A.2d 976 (Pa. 2003), which required rigid
compliance with the Rules in order to satisfy the Lamp test. In so doing,
the court in McCreesh emphasized the purpose of Lamp, which was to
prevent plaintiffs from abusing a loophole in the Rules by repeatedly
reissuing the writ and stalling the litigation:
When it became clear that the Franklins were contesting the case on
technical grounds of improper service, Leidich filed a praecipe to reissue the
writ on May 17, 1988. The writ was reissued, and the sheriff served the writ
on May 17, 1988. Leidich filed a complaint. The Franklins answered and in
new matter alleged that Leidich's claim was barred by the statute of
limitations and by Lamp. Id.
The Court of Common Pleas of Dauphin County granted the Franklins'
motion for judgment on the pleadings on the basis that service by mail of
the initial writ was contrary to the Pennsylvania Rules of Civil Procedure,
local practice, and established case law. Id., 575 A.2d at 915-916.
Leidich appealed to this court and argued that she complied with the
"good faith" requirement of Lamp in effectuating service of the writ of
summons by mail so as to toll the statute of limitations and render the suit
viable. Id., 575 A.2d at 916.
This court reversed. This court reasoned that the defect in service did
not affect any substantial rights of the Franklins, the Franklins were not
prejudiced by the manner in which they received notice of the suit, and
there was no evidence that Leidich's attorney had acted to stall the
machinery of justice. Id., 575 A.2d at 919.
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Upon review of these cases, we conclude that the
rigid compliance requirement of the Teamann [v.
Zafris, 811 A.2d 52 (Pa.Cmwlth. 2002), appeal
denied, 830 A.2d 976 (Pa. 2003)] line of cases is
incompatible with the plain language of Rule 401,[2]
2
Rule 401 of the Pennsylvania Rules of Civil Procedure provides in pertinent
part:
Rule 401. Time for Service. Reissuance, Reinstatement
and Substitution of Original Process. Copies for
Service
(a) Original process shall be served within
the Commonwealth within thirty days
after the issuance of the writ or the filing
of the complaint.
(b) (1) If service within the
Commonwealth is not made
within the time prescribed by
subdivision (a) of this rule or
outside the Commonwealth
within the time prescribed by
Rule 404, the prothonotary
upon praecipe and upon
presentation of the original
process, shall continue its
validity by reissuing the writ or
reinstating the complaint, by
writing thereon "reissued" in
the case of a writ or
"reinstated" in the case of a
complaint.
(2) A writ may be reissued or a
complaint reinstated at any
time and any number of times.
A new party defendant may be
named in a reissued writ or a
reinstated complaint.
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the spirit of Lamp, and the admonition of
Rule 126[3] 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.
McCreesh, 888 A.2d at 674 (emphasis added).
(4) A reissued, reinstated or
substituted writ or complaint
shall be served within the
applicable time prescribed by
subdivision (a) of this rule or
by Rule 404 after reissuance,
reinstatement or substitution.
Pa.R.C.P. 401.
3
Rule 126. Liberal Construction and Application
of Rules
The rules shall be liberally construed to secure the
just, speedy and inexpensive determination of every
action or proceeding to which they are applicable.
The court at every stage of any such action or
proceeding may disregard any error or defect of
procedure which does not affect the substantial
rights of the parties.
Pa.R.C.P. 126.
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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 objective bright line standard of compliance
that is wholly inconsistent with the concept of good
faith.
Id.
In Englert, this court decided that a good faith effort to effectuate
service was not made, pursuant to Lamp and McCreesh. John and Renee
Englert ("the Englerts") allegedly suffered injuries in an automobile accident
which occurred on March 25, 2002. On September 19, 2003, the Englerts
filed a praecipe for a writ of summons against C.J. Timko ("Timko"), the
driver of the vehicle that hit them, and Fazio Mechanical Services, Inc.
("Fazio"), Timko's employer. The Englerts provided the sheriff's office with
an address for Fazio taken from the Greater Pittsburgh Telephone Directory.
Fazio had moved from this address on March 21, 2003. On October 23,
2003, the Allegheny County Sheriff's Department filed a return of service,
which indicated that Fazio had moved to a different address and listed the
new address. The Englerts' counsel did not check the docket or contact the
sheriff's department to find out if the service of the writ of summons had
occurred. The Englerts' counsel waited for the sheriff's department to mail
the return of service. Englert, 932 A.2d at 123.
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The Englerts' counsel had moved his office on October 27, 2003, and
had problems receiving his mail. By letter dated March 11, 2004, Timko and
Fazio's insurer asked whether John C. Englert was making a claim for his
injury and advised him that the statute of limitations ended on March 25,
2004, and that if he failed to make a claim by that date, he would be barred
from doing so. In March 2004, the Englerts' counsel received a copy of the
sheriff's return in the mail. On March 31, 2004, the Englerts' counsel filed a
praecipe to reissue the writ of summons two years and six days after the
accident. Id., 932 A.2d at 124.
Timko and Fazio moved for summary judgment and asserted that the
Englerts' claims were barred by the statute of limitations. The Court of
Common Pleas of Allegheny County granted summary judgment. The
Englerts appealed to this court. Id.
This court affirmed:
We discern no abuse of discretion under the
circumstances presented here, where [the Englerts]
took no action whatsoever once the writ was issued
to ascertain whether service was properly made and
relied instead on counsel's customary practice of
waiting for word from the Sheriff's office, no matter
how long that might take and in spite of the
difficulties he had experienced receiving his mail in a
timely manner. [The Englerts'] conduct clearly
amounted to "neglect . to fulfill the responsibility
. .
to see that requirements for service [were] carried
out." In other words, [the Englerts'] inaction
demonstrated an intent to stall the judicial
machinery which was put into motion by the filing of
the initial writ and simply cannot be excused.
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Id., 932 A.2d at 126-127 (citation and footnote omitted).
Here, the trial court reasoned:
In this case, [appellant] failed to properly
reinstate and serve a Civil Complaint within the time
deadline established by a statute of limitations.
[Appellant's] counsel candidly acknowledges that his
office erred by failing to comply with the rules
governing service of original process. Unfortunately
for [appellant], his counsel's mistake is fatal to his
claim; Rule 126 simply does not allow us to extend
the statute of limitations and ignore the defects of
service.
Though [appellant] commenced the action
within the statute of limitations, service was not
effected on [appellees] until August 11th, beyond the
running of the statute. In the interim, the Complaint
was not reinstated.[4] [Appellant] explained in his
Brief that this failure was the result of a "clerical
error"; he also confirmed this at the hearing. Under
the rule of Lamp . . a clerical error would excuse
.
[appellant's] tardiness if it was due to the
interference of a third party. However, as
[appellant's counsel] himself has admitted, the error
was made by his own staff, whom he believes
attempted to effectuate service through a private
process server. While [appellant] has not shown an
intent to stall the judicial machinery, neither has he
shown any good faith efforts to timely effectuate
service. The fact that the failure to do so was the
result of [an] innocent mistake on [appellant's] part
makes no difference. We simply cannot excuse
[appellant's] untimeliness because his failure to even
attempt to comply cannot comprise a good faith
attempt. Therefore, [appellant] cannot sustain his
burden.
4 The complaint was, in fact, reinstated.
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Trial court opinion, 8/4/15 at 1-2, 6. This court cannot reconcile the trial
court's determination with our supreme court's pronouncement in
McCreesh.
Here, the statute of limitations expired on July 25, 2014. Appellant
filed the complaint on July 3, 2014, well within the statute of limitations.
Appellant's counsel failed to direct the sheriff to serve appellees with the
complaint in accordance with the Pennsylvania Rules of Civil Procedure. As a
result, service was not made within 30 days of the filing of the complaint.
However, when appellant or, in reality, appellant's counsel realized that
appellees had not been served with the complaint, appellant's counsel
quickly moved to reinstate the complaint on August 6, 2014, 12 days after
the expiration of the statute of limitations and only 4 days after the 30 -day
deadline for service of the original complaint. August 6, 2014, was a
Wednesday. The sheriff served appellees by the following Monday on
August 11, 2014, only 39 days after the filing of the original complaint and
only 17 days after the passing of the statute of limitations.
First, the filing of the complaint combined with the service of process
tolls the statute of limitations which in this case is 2 years. While it is
undisputed that service of the reinstated complaint was not made until after
the expiration of the statute of limitations, it was only made 17 days after
the expiration. If appellant had waited until the last day of the statute of
limitations period, July 25, 2014, to file the complaint, appellant would have
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had 30 days from that date, or until August 24, 2014, to make good service.
Second, in McCreesh, the Pennsylvania Supreme Court rejected an
overly technical approach which required strict compliance with the rules in
order to satisfy the Lamp test. In McCreesh, the Pennsylvania Supreme
Court followed the analysis espoused in Leidich and determined that the
court should dismiss complaints in cases where a plaintiff has attempted to
stall the judicial machinery or where a plaintiff's failure to comply with the
Pennsylvania Rules of Civil Procedure has prejudiced the defendant. Here,
there clearly is no attempt to stall the judicial machinery. Further, given the
example outlined above concerning filing a complaint on the last day of the
statute of limitations period, it is hard to see how appellees are prejudiced
here. This court realizes that McCreesh refers to cases where actual notice
was given to the defendant that a complaint or action was forthcoming or
had been filed. Here, nothing in the record indicates that appellees had
actual notice of the filing of the complaint though they did have notice of
potential litigation when appellant requested the medical records of
Damaris Reyes.
Third, this case is distinguishable from Englert in that, in Englert, the
Englerts provided the sheriff with the wrong address of Timko and Fazio.
Although the sheriff filed a return of service which indicated the new address
in October 2003, the Englerts or their counsel failed to contact the sheriff's
office or check the docket to see if service had been made. Even though the
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Englerts' counsel had moved his office and had difficulty receiving mail, the
Englerts' counsel did nothing with respect to service until March 2004 when
the insurer notified Englert of the impending end of the statute of limitations
period, and the counsel received the return of service in the mail. In
contrast, here, appellant's counsel promptly checked to see if service had
been made. When he realized that it had not, he quickly reinstated the
complaint and effectuated service within five days. Unlike in Englert, there
was no intent to stall the judicial machinery.
Fourth, the trial court mentions in its opinion that appellant failed to
reinstate the complaint, which would indicate a further lack of compliance
with the procedural rules. However, it is clear from the record that appellant
did do so.
For the foregoing reasons, the order is reversed.
Bender, P.J.E. joins this Memorandum.
Stevens, P.J.E. files a Dissenting Memorandum.
Judgment Entered.
/
Joseph D. Seletyn,
Prothonotary
Date: 5/8/2017
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