Case Information

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FERNANDO MELENDEZ, IN THE SUPERIOR COURT OF AS ADMINISTRATOR OF THE ESTATE PENNSYLVANIA : OF DAMARIS REYES,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. MDA 2015 LEBANON EMERGENCY PHYSICIANS;

THE GOOD SAMARITAN HOSPITAL

Appeal from the Order Entered August 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. FILED MAY 08, 2017

MEMORANDUM BY FORD ELLIOTT, P.J.E.: Fernando Melendez, as Administrator Estate Damaris Reyes, Deceased, appeals order of the Court of Common Pleas Lebanon County granted the motion for judgment pleadings The Good Samaritan Hospital of Lebanon, Pennsylvania, Lebanon Emergency Physicians, Good Samaritan Hospital. We reverse. facts as recounted the trial court are as follows:

Damaris Reyes visited the emergency room at Good Samaritan Hospital July because she experiencing vomiting, diarrhea, shortness breath, headaches back pain. About four * Former Justice specially assigned the Superior Court.

hours after arriving at the hospital, Ms. Reyes was pronounced dead. According to [appellant], her death was direct result of doctors' failure timely recognize and treat septic shock, among other things.

On July [appellant] Complaint, accompanied required certificates of merit, alleging corporate negligence and vicarious liability seeking both wrongful death and survival damages against Good Samaritan Hospital Lebanon Emergency Physicians (collectively [appellees]). The Complaint returned [appellant] on same day reasons unknown, the following notation entered on the docket: "ATTORNEY SERVICE, NOTATION FOR THE RECORD." one of

[Appellant] believes its staff members mistakenly attempted service via private process server. During period time that [appellant] believed service was being attempted, staff member left the employ of [appellant]. When [appellant] became aware [the] error, he reinstated the Complaint on August 6th; Lebanon County Sheriff properly effectuated 11th.

[Appellees] seek judgment pleadings, arguing [appellant's] claim barred limitations. [Appellant] acknowledges that the Complaint occurred beyond deadline date. However, [appellant] believes that extenuating circumstances should considered by this Court.

Trial court opinion, 8/4/15 at 2-3.

By order dated August 2015, the trial court granted the motion for judgment pleadings.

Appellant appealed to this court raises the following issue for review:

-2 Whether the Trial Court erred granting [appellees'] Motion Judgment on the Pleading [sic] on basis of defective service where the [appellant] successfully effectuated on [appellees] accordance Civil Procedure and Lebanon County local practice thirty-nine (39) days after the original filing of the thirty (30) days Complaint and within expiration of the Statute Limitations, where [appellees] suffered prejudice as result of the nine (9) day delay service?

Appellant's brief at 5.

[Appellate review of an order granting a motion for judgment the pleadings] is plenary. appellate court will apply same standard employed by trial court. A trial court must confine its consideration the pleadings and to relevant documents. court must true all well accept as pleaded statements fact, admissions, any documents properly attached pleadings presented party against whom the motion is filed, considering only those facts which were specifically admitted. Further, the court may grant judgment the pleadings only where the moving party's right succeed is certain case so free from doubt trial would clearly fruitless exercise.

Steiner v. Bell of Pennsylvania, 426 Pa.Super.

87-88, 626 A.2d 584, (1993). (Citations and footnote omitted). We must determine if the trial court's action based clear error law or whether there were facts disclosed the pleadings which should properly go jury. Kelly v. Nationwide Insurance Company, Pa.Super.

6, 10, 606 A.2d (1992). 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 delay the trial, any party may move for judgment on pleadings. (b) court shall enter such judgment or order

as shall proper on pleadings. Pa.R.Civ.P. 1034(a -b).

Initially, appellant contends the trial court erred when it dismissed the present action basis of defective and the running of the statute limitations when appellant timely filed, reinstated, and served complaint compliance statute limitations Pennsylvania Civil Procedure.

As the parties agree, the statute limitations for medical malpractice wrongful death actions Pennsylvania is two years. See Pa.C.S.A. § 5524. Damaris Reyes died July 25, 2012. According to appellant, Reyes's death was caused by the negligent actions of appellees. Appellant July prior expiration but did not serve appellees at time.

It well settled this Commonwealth pursuant Lamp v. Heyman, Pa. 366 A.2d 882 (1976), Farinacci v. Beaver County Industrial Development Authority, Pa.

-4 511 A.2d 757 (1986), that of original process completes the progression of events which an action is commenced. Once an action is commenced of summons or 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 Id. at 796; assessed a case by case basis." v. Hutt, 863 A.2d Devine 1168 "[W]here (Pa.Super.2004) (citations omitted). noncompliance Lamp is alleged, the court must determine its sound discretion whether in good -faith effort to effectuate notice made." Farinacci at 594, 511 A.2d at 759.

In making such determination, we have explained:

It is not necessary [that] 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 mistake to fulfill responsibility to see that requirements are carried out may be sufficient to bring rule Lamp bear. Thus, conduct is unintentional works delay the defendant's notice of the action may constitute lack of good faith 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. 606 A.2d 903 (1992)). "[A]lthough there is mechanical determining what approach applied constitutes good faith effort, it plaintiff's his efforts were burden demonstrate reasonable." Bigansky v. Thomas Jefferson University Hospital, Pa.Super. 69, 658 A.2d (1995), appeal denied, Pa. 668 A.2d 1119 (1995).

-5 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, A.2d 664 (Pa. 2005), a plaintiff filed a writ of summons but served it by certified mail violation Pennsylvania of Civil Procedure. The plaintiff subsequently reinstated the writ after expiration of the and then made proper service. The City of Philadelphia filed preliminary objections on basis of the original writ did not comply with the rules. The Court of Common Pleas 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 Leidich v. Franklin, 575 A.2d 914 (Pa.Super. 1990), appeal denied, 584 A.2d 319 (Pa. 1990),[1] Leidich, Virginia Leidich ("Leidich") suffered personal injuries on April 4, 1986, when her vehicle collided with another automobile owned by David Irene Franklin ("the Franklins"). On January 4, 1988, Leidich praecipe for issuance writ of summons with the Dauphin County prothonotary. Written back writ was "writ atty. 1/4/87 RB." notation mistakenly identified the year as 1987 instead 1988. The served upon the Franklins first class mail dated January 5, 1988, not served the sheriff. Also, January 1988, the Franklins were served notice appear for deposition February 1988. Franklins' attorney objected the deposition, the parties agreed to postpone the deposition indefinitely. From March 15, through April Leidich submitted medical bills to Franklins' insurer with respect possible settlement of the claim the policy limits. Leidich, 575 A.2d at 915.

-6 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 (Pa.Cmwlth. 2002), appeal denied, 830 A.2d 976 (Pa. 2003), which required rigid compliance with the Rules in order satisfy the Lamp test. so doing, the court in McCreesh emphasized the purpose of Lamp, which was to prevent plaintiffs from abusing loophole in 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 praecipe to reissue writ on May 1988. The writ was reissued, and sheriff served writ May 17, 1988. Leidich complaint. Franklins answered and in new matter alleged that Leidich's claim was barred by statute of limitations and by Lamp. Id. Court of Common Pleas Dauphin County granted the Franklins'

motion judgment the pleadings basis that by mail of the initial writ contrary Pennsylvania Civil Procedure, local practice, established case law. Id., 575 A.2d at 915-916.

Leidich appealed to this court argued she complied "good faith" requirement Lamp effectuating service of the summons mail so as toll the render the suit viable. Id., 575 A.2d at 916.

This court reversed. This court reasoned the defect did not affect any substantial rights Franklins, Franklins were not prejudiced the manner which they received notice of the suit, and there evidence Leidich's attorney had acted to stall machinery of justice. Id., 575 A.2d at 919.

-7 Upon review of these cases, we conclude rigid compliance requirement of the Teamann [v.

Zafris, 811 A.2d (Pa.Cmwlth. 2002), appeal denied, 830 A.2d 976 (Pa. 2003)] line cases is incompatible with the plain language Rule 401,[2] Rule of the Pennsylvania Civil Procedure provides pertinent part:

Rule 401. Time Service. Reissuance, Reinstatement Substitution of Original Process. Copies for

Service

(a) Original process shall be served within

the Commonwealth within thirty days after issuance writ or the filing of the complaint. If within

(b) (1) service

Commonwealth not made within time prescribed by subdivision (a) of this rule or outside the Commonwealth within time prescribed by Rule prothonotary upon praecipe and upon presentation of the original process, shall continue its validity reissuing writ or reinstating complaint, by writing thereon "reissued" in writ or case "reinstated" case a complaint.

(2) A writ may reissued or a reinstated at any time any number of times. A new party defendant may be named reissued or reinstated complaint.

_8 spirit Lamp, and admonition of Rule 126[3] to construe liberally rules of procedure so long as the deviation does not affect Lamp, we the substantial rights of the parties.

sought to alleviate the hardships caused by plaintiffs who exploited the rules of civil procedure to make an end run around statutes limitations.

Neither our cases nor our rules contemplate punishing plaintiff technical missteps where he has satisfied the purpose of the of limitations supplying defendant with actual notice. Therefore, we embrace the logic of Leidich line of cases, which, applying Lamp, would dismiss only those claims where plaintiffs have demonstrated an intent stall judicial machinery or where plaintiffs' failure comply with Civil Procedure has prejudiced defendant.

McCreesh, 888 A.2d at 674 (emphasis added).

(4) A reissued, reinstated or substituted or complaint shall be served within applicable time prescribed by subdivision (a) of this rule or Rule after reissuance, reinstatement or substitution. Pa.R.C.P. 401.

[3] Rule Liberal 126. Construction Application

of Rules rules shall liberally construed secure

just, speedy inexpensive determination every action or proceeding to which they are applicable. court at every stage of any such action or

proceeding may disregard any error or defect procedure which does not affect the substantial rights of parties.

Pa.R.C.P. 126.

_9 As stated earlier, this Court Lamp attempted to prevent plaintiffs from abusing the liberal rules civil procedure which had been enacted originally to protect plaintiffs from being thrown out court despite commencing an action within the applicable period. requiring strict The cases compliance hearken back these draconian procedures replace a factual good faith inquiry an objective bright line standard of compliance that wholly inconsistent with the concept of good faith.

Id. Englert, this court decided a good faith effort effectuate not made, pursuant Lamp McCreesh. John and Renee

Englert ("the Englerts") allegedly suffered injuries an automobile accident which occurred March 2002. On September 2003, the Englerts filed praecipe for a writ of summons against C.J. Timko ("Timko"), driver of the vehicle 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 March 2003. On October 2003, the Allegheny County Sheriff's Department return of service, which indicated Fazio had moved different address listed new address. Englerts' counsel did not check the docket or contact the sheriff's department to find out if of summons had occurred. Englerts' counsel waited sheriff's department to mail return of service. Englert, 932 A.2d at 123.

- - Englerts' counsel had moved his office October 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 claim for his injury and advised him that statute ended March and that if he failed to make claim by that date, he would be barred from doing so. In March 2004, the Englerts' counsel received copy of the sheriff's return mail. On March 2004, the Englerts' counsel filed a praecipe to reissue writ of summons two years and six days after the accident. Id., 932 A.2d at 124.

Timko Fazio moved for summary judgment asserted Englerts' claims were barred limitations. 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 circumstances presented here, where [the Englerts] took no action whatsoever once writ was issued to ascertain whether properly made and relied instead counsel's customary practice of waiting word from the Sheriff's office, matter long might take and how spite of the difficulties he had experienced receiving his mail timely manner. [The Englerts'] conduct clearly . to fulfill responsibility amounted "neglect . . see requirements for [were] carried out." other words, [the Englerts'] inaction demonstrated an intent judicial stall machinery which put into motion the filing of the initial simply cannot excused.

Id., 932 A.2d at 126-127 (citation footnote omitted).

Here, trial court reasoned: [appellant] failed to properly this case,

reinstate serve a Civil Complaint within time deadline established by a statute limitations. [Appellant's] counsel candidly acknowledges his office erred failing to comply with the rules governing service of original process. Unfortunately [appellant], his counsel's mistake fatal to his claim; Rule simply does not allow us to extend statute ignore the defects of service.

Though [appellant] commenced the action within limitations, was not effected [appellees] until August 11th, beyond running of the statute. In the interim, the Complaint was not reinstated.[4] [Appellant] explained his Brief this failure was the result of a "clerical error"; he also confirmed this at the hearing. Under the rule of Lamp . . clerical error would excuse . [appellant's] tardiness if it was due interference of third party. However, as [appellant's counsel] himself has admitted, error made his own staff, whom he believes attempted to effectuate through private process server. While [appellant] has not shown an intent to stall the judicial machinery, neither has he shown any good faith efforts timely effectuate service. fact failure do so result of [an] innocent mistake [appellant's] part makes difference. We simply cannot excuse [appellant's] untimeliness because his failure to even attempt comply cannot comprise good faith attempt. Therefore, [appellant] cannot sustain his burden. was, fact, reinstated.

- - 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 July 25, 2014. Appellant the complaint July 3, 2014, well within the statute of limitations. Appellant's counsel failed to direct the sheriff to serve appellees with complaint accordance with the Pennsylvania of Civil Procedure. As a result, service was not made within 30 days of the filing of the complaint. However, when appellant or, reality, appellant's counsel realized that appellees had not been served with complaint, appellant's counsel quickly moved to reinstate complaint August 6, 2014, 12 days after expiration of the statute limitations only 4 days after 30 -day deadline service of the original complaint. August 6, 2014, Wednesday. sheriff served appellees the following Monday on August 2014, only 39 days after the filing of the original complaint and only days after passing of the statute limitations.

First, the filing of the complaint combined the service of process tolls the statute limitations which this case is 2 years. While it is undisputed of the reinstated not made until after expiration of the statute limitations, it was only made days after expiration. If appellant had waited until the last day period, July file the complaint, appellant would have

- - had days from that date, or until August to make good service.

Second, in McCreesh, the Pennsylvania Supreme Court rejected an overly technical approach which required strict compliance with rules in order to satisfy the Lamp test. McCreesh, Pennsylvania Supreme Court followed the analysis espoused in Leidich determined court should dismiss complaints in cases where a plaintiff has attempted stall judicial machinery or where a plaintiff's failure to comply with the Pennsylvania Civil Procedure has prejudiced the defendant. Here, there clearly is attempt to stall the judicial machinery. Further, given the example outlined above concerning filing complaint last day of the period, it is hard to see how appellees are prejudiced here. This court realizes that McCreesh refers cases where actual notice given the defendant or action forthcoming or had been filed. Here, nothing in record indicates 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 distinguishable from Englert that, Englert, Englerts provided sheriff the wrong address of Timko and Fazio. Although the sheriff return of service which indicated the new address October 2003, the Englerts or their counsel failed to contact sheriff's office or check the docket see if had been made. Even though the

- - Englerts' counsel had moved his office had difficulty receiving mail, the Englerts' counsel did nothing respect service until March 2004 when insurer notified Englert of the impending end limitations

period, counsel received return of service mail. In contrast, here, appellant's counsel promptly checked to see if had been made. When he realized it had not, he quickly reinstated effectuated within five days. Unlike Englert, there intent stall the judicial machinery.

Fourth, the trial court mentions its opinion appellant failed reinstate the complaint, which would indicate further lack of compliance with the procedural rules. However, it is clear from record appellant did do so.

For the foregoing reasons, order reversed.

Bender, P.J.E. joins this Memorandum.

Stevens, P.J.E. files Dissenting Memorandum.

Judgment Entered.

/

Joseph D. Seletyn,

Prothonotary

Date: 5/8/2017

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