J-S08005-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DALE KELLER 

Appellant

v.

ALEXIS HAAG

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1137 MDA 2023

Appeal from the Order Entered July 5, 2023

In the Court of Common Pleas of Northumberland County Civil Division at 

No(s): CV-2017-01022

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: APRIL 30, 2024

Appellant, Dale Keller, appeals from the order entered on July 5, 2023, 

sustaining preliminary objections filed by Alexis Haag (Haag). We affirm.

We briefly set forth the facts and procedural history of this case, as 

gleaned from the certified record, as follows. On June 1, 2017, Appellant filed 

a praecipe for a writ of summons against Haag.1 On August 2, 2017, Appellant 

filed a praecipe to reissue the writ of summons. Thereafter, no docket activity 

appears in the certified record for approximately five years and four months. 

On December 22, 2022, Haag filed counseled preliminary objections to the 

writ of summons, arguing that Appellant made no attempt to serve her. By 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 According to Haag, “[t]his suit ar[ose] from an automobile accident that 

occurred in Northumberland County, Pennsylvania on June 1, 2015.” Haag’s 

Preliminary Objections, 12/22/2022, at ¶1.
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order entered on April 20, 2023, the trial court scheduled a proceeding for 

July 5, 2023. When the proceeding concluded, the court directed the parties 

to file briefs addressing Haag’s preliminary objections. Appellant did not 

appear before the court and did not file a brief in opposition to Hagg’s 

preliminary objections. By order entered on July 5, 2023, the trial court 

sustained Haag’s preliminary objections, finding:

[No attempt was made by Appellant] to [] reissue [the writ and]

effectuate service thereof, since August 2, 2017, and there is no 

indication that service was even attempted; here, there was no 

excuse being offered except COVID-19, but that [was] insufficient 

as civil court was operational at all times. [Appellant] has not met 

the [service] requirements of Lamp v. Heyman, 366 A.2d 882 

(Pa. 1976); [s]ee also Farinacci v. Beaver County Industrial 

Authority, 511 A.2d 757 (Pa. 1986). 

Trial Court Order, 7/5/2023, at *1. This timely appeal resulted.2

On appeal, Appellant presents the following issue for our review:

Whether the trial court abused its discretion and misapplied the 

law when it sustained [Haag’s] preliminary objections, without a 

factual record, regarding [Appellant’s] unintentional lack of 

service of the writ even though [Haag] was aware of the claim, 

and [Appellant’s] carrier, continued to negotiate with [Appellant] 

over the years, and [Haag] did not suffer any prejudice 

whatsoever, by the delay in service?

____________________________________________

2

 On August 4, 2023, Appellant filed a notice of appeal. On August 18, 2023, 

the trial court directed Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

on September 1, 2023. Therein, Appellant claimed only that Haag “waived 

[her] Lamp v. Heyman argument by not raising it for more than 5 years after 

[Appellant filed] the [w]rit and continu[ed] settlement discussions in the 

meantime.” Rule 1925(b) Statement, 9/1/2023, at ¶1. On September 9, 

2023, the trial court issued a statement in lieu of a formal opinion. 
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Appellant’s Brief at 7 (numerical and superfluous capitalization omitted).

Appellant argues, in sum:

Under Pennsylvania law, a defendant can file preliminary 

objections on the basis of improper service if a plaintiff does not 

timely serve the writ. A court can dismiss the writ for lack of 

service or improper service if service is not effectuated within 30 

days of filing the complaint. This rule [was] established to prevent 

plaintiff[s] from abusively filing [an] action but not notifying the 

defendant. However, before dismissing the complaint, the 

defendant must be prejudiced by the delay in service. Here, 

[Appellant] did not serve the writ at the time it was filed. 

However, [Haag] was on notice of the claim, continued to 

negotiate through her insurer, and she did not suffer any 

prejudice, whatsoever in the delay of serving the writ. Since 

[Haag] did not suffer any prejudice, and she did not even argue 

that [she] was prejudiced in her preliminary objections, the [trial] 

court erred in sustaining the preliminary objections and dismissing 

[Appellant’s] writ. Therefore, this Court should reverse the trial 

court and overrule [Haag’s] preliminary objections. 

Id. at 8.

This Court recently determined:

In considering a trial court's order sustaining preliminary 

objections for improper service of process,

our standard of review ... 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. When considering preliminary objections, all material 

facts set forth in the challenged pleadings are admitted as 

true, as well as all inferences reasonably deducible 

therefrom. Preliminary objections which seek the dismissal 

of a cause of action should be sustained only in cases in 

which it is clear and free from doubt that the pleader will be 

unable to prove facts legally sufficient to establish the right 

to relief.
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Bellan v. Penn Presbyterian Med. Ctr., 271 A.3d 506, 509 (Pa. 

Super. 2022), appeal denied, 283 A.3d 793 (Pa. 2022) (citation 

omitted).

Rule 1028(a)(1) of the Pennsylvania Rules of Civil Procedure 

permits a party to raise preliminary objections based on “improper 

form or service of a writ of summons or a complaint.” Pa.R.C.P. 

1028(a)(1). This includes failure to properly serve a complaint in 

compliance with the Pennsylvania Rules of Civil Procedure for 

service of original process. McCreesh v. City of Philadelphia, 

888 A.2d 664, 667 (Pa. 2005).

This Court has stated: “[s]ervice of process is a mechanism by 

which a court obtains jurisdiction of a defendant, and therefore, 

the rules concerning service of process must be strictly followed. 

Thus, improper service is not merely a procedural defect that can 

be ignored when a defendant subsequently learns of the action 

against him or her.” Lerner v. Lerner, 954 A.2d 1229, 1237 (Pa. 

Super. 2008) (quoting Cintas Corp. v. Lee's Cleaning Services, 

Inc., 700 A.2d 915, 917 (Pa. 1997)).

Rule 401 provides that “original process shall be served within the 

Commonwealth within 30 days after the issuance of the writ or 

the filing of the complaint.” Pa.R.C.P. 401(a). If the plaintiff is 

unable to serve the defendant within this time, he/she may file a 

praecipe for reissuance of the writ or reinstatement of the 

complaint in order to continue its validity. Pa.R.C.P. 401(b). “So 

long as the plaintiff files [the] writ or complaint before the 

expiration of the statute of limitations applicable to [the] cause of 

action, the original filing, as well as any subsequent reissuances 

or reinstatements, tolls the statute of limitations.” Gussom v. 

Teagle, 247 A.3d 1046, 1048 (Pa. 2022).

Recently, in Gussom, our Supreme Court assimilated [the 

holdings in] several major cases addressing the dismissal of a 

complaint for lack of service[,] including Lamp v. Heyman, 366 

A.2d 882 (Pa. 1976), Farinacci v. Beaver Co. Indus. Dev. 

Auth., 511 A.2d 757 (Pa. 1986) and McCreesh, supra. The 

Court articulated the following standard:

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 
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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, 247 A.3d at 1057 (emphasis added). It is within the 

sound discretion of the trial court to determine whether a 

good-faith effort to effectuate notice was made. Id. at 1048.

* * *

“[A]n appellate court is limited to considering only the materials 

in the certified record when resolving an issue .... [U]nder the 

Pennsylvania Rules of Appellate Procedure, any document which 

is not part of the officially certified record is deemed 

non-existent.” [Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. 

Super. 2006).]

* * *

The emphasis on the certified record is necessary because, 

unless the trial court certifies a document as part of the 

official record, the appellate judiciary has no way of knowing 

whether that piece of evidence was duly presented to the 

trial court or whether it was produced for the first time on 

appeal and improperly inserted into the reproduced record. 

Simply put, if a document is not in the certified record, the 

Superior Court may not consider it.

Id. at 6-7.
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Barry v. Nationwide & Nationwide Mut. Ins. Co., 2023 WL 7550795, at 

*2–5 (Pa. Super. 2023) (non-precedential decision).3

Here, the trial court determined that there was “nothing in the record to 

suggest that there had been settlement discussions” either “by way of a 

response to the preliminary objections or any testimony” and “[o]ne cannot 

simply make [] bald factual assertions for the first time in [his Rule] 1925(b) 

statement.” Trial Court Statement In Lieu of Opinion, 9/19/2022, at *2 

(unpaginated). Moreover, the trial court determined:

[Haag’s] preliminary objections included a notice to plead thereto 

within twenty days after service upon [Appellant]. There was no 

response. An order was issued directing the filing of briefs by both 

parties; however, [Appellant] did not file a brief. At argument 

held before the court (which was not requested to be on the 

record, and no testimony under oath was presented), counsel for 

[Appellant] only raised an argument as to the COVID-19 

pandemic.[4] This was specious since the court maintained its 

ability to process civil filings and service of pleadings[, despite the 

ongoing pandemic]. 

* * *

Over five years have elapsed without any reasonable excuse to 

effectuate service of the writ.

____________________________________________

3

 Pursuant to Pa.R.A.P. 126(b), Superior Court non-precedential decisions

filed after May 1, 2019 may be cited for their persuasive value.

 

4

 Appellant does not currently argue that the COVID-19 pandemic impeded 

his ability to serve Haag and we find this aspect of Appellant’s argument 

abandoned and, therefore, waived. See Commonwealth v. McGill, 832 A.2d 

1014, 1018 n.6 (Pa. 2003) (finding waiver where McGill abandoned claim on 

appeal).
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Id. at *1; see also id. at *2 (“In the case at bar the context is not days but 

years without explanation of any good faith effort to move the case forward.”).

Here, initially we note that our review is confined to the evidence 

contained in the certified record. Upon review, the certified record contains 

Appellant’s June 1, 2017 praecipe for the original writ of summons and his 

August 2, 2017 praecipe for reissuance of the writ. In addition, the record

includes Haag’s preliminary objections filed on December 22, 2022, the trial 

court’s July 5, 2023 order sustaining Hagg’s preliminary objections, and the 

subsequent filings pertaining to this appeal. While the trial court held

argument on the preliminary objections, there is no indication that the 

proceeding was transcribed and there are no notes of testimony from that 

proceeding in the certified record.5 As such, from our review of the certified 

record as set forth above, there is no record evidence that the parties were 

____________________________________________

5

 Appellant suggests that the trial court erred “by not developing a record.” 

Appellant’s Brief at 10. Because Appellant did not raise this issue before the 

trial court or in his Rule 1925(b) statement, he cannot raise this aspect of his 

claim for the first time on appeal and we find it waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the trial court are waived and cannot be raised for the 

first time on appeal.”). Moreover, our Supreme Court has stated that “the 

absence of notes [of testimony] does not generate some instantaneous, 

meritorious claim for relief. Instead, if the initially missing notes matter, it 

becomes a circumstance the appellant or his counsel needs to respond to by, 

for example, ordering notes counsel failed to order earlier; or seeking an order 

of court to have ordered notes promptly transcribed, or otherwise made 

available; or, where notes cannot be secured, to take steps to have an 

equivalent picture of the proceeding generated.” Commonwealth v. Lesko, 

15 A.3d 345, 410-411 (Pa. 2011), citing Pa.R.A.P. 1911(a) (appellant shall 

request necessary transcripts for appeal); Pa.R.A.P. 1923 (statement in the 

absence of transcript); Pa.R.A.P. 1924 (agreed upon statement of the record).
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engaged in negotiations and we therefore flatly reject Appellant’s contention 

in this regard. Moreover, there is no evidence that Appellant made any

attempt at service and, thus, failed to satisfy his evidentiary burden of proving 

good faith regardless of whether his inaction was intentional, unintentional, or 

otherwise. There is also no record evidence of improper, but diligent,

attempts at service or Haag’s actual notice of the commencement of the 

action. Accordingly, for all of the foregoing reasons, we will not disturb the 

sound exercise of discretion by the trial court in determining that there was

no good-faith effort to effectuate notice. Therefore, we hold that the trial 

court did not err in sustaining Haag’s preliminary objections.

Order affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/30/2024