J-A15035-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

DEWITT WIMBS 

Appellant

v.

MOLLY WOLFSON

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 927 WDA 2022

Appeal from the Order Entered July 14, 2022

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

No(s): GD 20-012092

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: August 30, 2023

Dewitt Wimbs (Wimbs) appeals from the order entered in the Court of 

Common Pleas of Allegheny County (trial court) granting the preliminary 

objections of Molly Wolfson (Wolfson) based on the statute of limitations and 

dismissing his personal injury complaint. Wimbs challenges the trial court’s 

finding that he did not make a good faith effort to effectuate service within 

the limitations period. We affirm.

I.

A.

This case arises from a motor vehicle accident that occurred nearly five 

years ago on the night of November 26, 2018, in Pittsburgh, Pennsylvania. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A15035-23

- 2 -

Wimbs brought this negligence action to recover damages for injuries he 

allegedly sustained when Wolfson failed to stop at a stop sign while traveling 

at an unsafe speed and drove her car into the passenger side of his vehicle, 

causing him to collide with another car.

Wimbs initiated this action on November 25, 2020, by filing a praecipe 

for writ of summons one day before the two-year statute of limitations 

expired.1 Wimbs made no attempt to serve the initial writ on Wolfson and he 

had the writ reissued ten times from December of 2020 through September 

of 2021. Wimbs attempted service once through the Allegheny County Sheriff 

on December 17, 2020, with a service address for Wolfson of 131 Hartle Road 

in Glenshaw, Pennsylvania. That service attempt was unsuccessful and the 

Sherriff’s comment on the docket read: “Deft does not live at this address, 

lives in the Bloomfield area of the City of Pittsburgh.”

Wimbs filed his complaint against Wolfson on April 29, 2022. Wolfson 

filed preliminary objections to the complaint on May 20, 2022, for Wimbs’ 

failure to file and serve the praecipe for writ of summons and/or complaint 

upon her within the prescribed statutory time period and his lack of good faith 

effort to serve her. Counsel for Wolfson advised that she was never authorized 

____________________________________________

1 See 42 Pa.C.S. § 5524(7) (setting two-year statute of limitations period for 

negligence actions).
J-A15035-23

- 3 -

to accept service on behalf of Wolfson and never accepted service or spoke 

with Wimbs’ counsel about this matter.

Wimbs filed a response to the preliminary objections averring that he 

had made reasonable efforts to affect service of the writ of summons and 

obtain a valid address for Wolfson after learning that she no longer resided at 

the Glenshaw address. Wimbs also maintained that after the Sherriff was 

unable to affect service, he contacted counsel for Wolfson’s insurer in July of 

2021 to request her address and provide notice of the pending lawsuit, and 

that counsel entered an appearance on behalf of Wolfson in September of 

2021.

Wolfson filed a supplement to the preliminary objections attaching an 

affidavit averring that from the date of the alleged incident until May of 2021, 

she lived in the Bloomfield area in the City of Pittsburgh; she currently resides 

in the Highland Park area of the City of Pittsburgh; to date she has not been 

served with or given papers relating to this lawsuit by any sheriff; and she has 

not resided on Hartle Road in Glenshaw at any point in time pertinent to this 

action.

B.

The trial court entered its order granting the preliminary objections and 

dismissing this case on July 14, 2022, after the parties presented their 

respective positions at oral argument. Wimbs timely appealed and the trial 

court issued a Rule 1925(a) opinion. See Pa.R.A.P. 1925. The trial court 
J-A15035-23

- 4 -

explained that dismissal of this case is appropriate because Wimbs’ issuance 

of the writ 11 times with only one attempt at service did not constitute a good 

faith effort to serve and provide notice of this lawsuit to Wolfson; this lack of 

effort to effectuate service demonstrated an intent to stall and did, in fact,

stall the judicial machinery making this litigation stale; and there is no 

evidence that Wolfson had actual notice of this suit prior to the expiration of 

the statute of limitations. (See Trial Court Opinion, 8/29/22, at 1-2).

II.

A.

Wimbs first contends the trial court erred in sustaining Wolfson’s 

preliminary objections given that he filed the writ of summons within the 

statute of limitations period and acted in good faith in attempting to effectuate 

service. (See Wimbs’ Brief, at 7-10).2 He maintains that his conduct served 

____________________________________________

2

In reviewing 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.

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

2022), appeal denied, 283 A.3d 793 (Pa. 2022) (citation omitted).
J-A15035-23

- 5 -

to toll the statute of limitations and requests that we remand with instructions 

for Wolfson to file an answer to the complaint.

We begin by observing that the “purpose of any statute of limitations is 

to expedite litigation and thus discourage delay and the presentation of stale 

claims which may greatly prejudice the defense of such claims.” McCreesh 

v. City of Philadelphia, 888 A.2d 664, 671 (Pa. 2005). “It is well-established 

that service 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.” Bellan, supra at 509. “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.” Id. (citation omitted).

Pennsylvania Rule of Civil Procedure 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 period, he may file a praecipe 

for reissuance of the writ or reinstatement of the complaint in order to 

continue its validity. See Pa.R.C.P. 401(b)(1). Our case law has provided 

that as long as the plaintiff files his writ or complaint before the expiration of 

the applicable statute of limitations period, the original filing and any 

subsequent reissuances or reinstatements tolls the statute of limitations. See 

Bellan, supra at 509.
J-A15035-23

- 6 -

There are, however, limits on this tolling mechanism. In Lamp v. 

Heyman, 366 A.2d 882 (Pa. 1976), the Pennsylvania Supreme Court sought 

to limit the potential for abuse by plaintiffs who toll the statute of limitations 

by filing a writ of summons, have the writ repeatedly reissued, and fail to 

make a good faith effort to notify the defendant of the pending action. See

Lamp, supra at 888-889. The Court concluded that this process, while 

technically compliant with the Rules of Civil Procedure, is inconsistent with the 

purpose of the statute of limitations which is to avoid stale claims and make 

the process of justice as speedy and efficient as possible. See id. at 889. It

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 he has just set in motion.” Id. Thus,

Lamp and its progeny require a plaintiff to make a goodfaith 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. 

Bellan, supra at 510 (some citations omitted).

“What constitutes a ‘good faith’ effort to serve legal process is a matter 

to be assessed on a case by case basis.” Englert v. Fazio Mech. Servs., 

Inc., 932 A.2d 122, 124 (Pa. Super. 2007), appeal denied, 938 A.2d 1053

(Pa. 2007) (citation omitted). “Where noncompliance with Lamp is alleged, 
J-A15035-23

- 7 -

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

to effectuate notice was made.” Id. (citation omitted). In making this 

decision:

It is not 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.

Id. (citation omitted; emphasis added).

Applying the foregoing precepts to the instant case, we agree with the 

trial court’s determination that Wimbs’ actions did not serve to toll the statute 

of limitations. Wimbs made only one attempt to serve Wolfson with the writ 

of summons after the statute of limitations period expired in December of 

2020. When that attempt was unsuccessful and the sheriff’s office informed 

him of Wolfson’s Bloomfield area residence, there is no indication that he made 

a diligent effort to locate her then-current address to effectuate proper 

service. Instead, several months later in July of 2021, Wimbs contacted 

Wolfson’s insurance company to request her address and advise it of this

lawsuit. He did not file the complaint until April 2022, about three-and-onehalf years after the incident giving rise to his claims occurred.

Given these circumstances, Wimbs’ lack of due diligence is apparent 

from the record which shows that he failed to fulfill his responsibility to ensure 

that the requirements for service were met. His lack of effort worked to delay
J-A15035-23

- 8 -

notice of the action and rendered the allegations he makes in this litigation 

stale. See Englert, supra at 124. Accordingly, Wimbs’ first issue merits no 

relief.

B.

We next address Wimbs’ contention that under McCreesh, supra,

Wolfson was required to establish prejudice because she had actual knowledge 

of the lawsuit and that she has failed to offer any evidence of prejudice. (See

Wimbs’ Brief, at 10-12). Wimbs points to the fact that he contacted counsel 

for Wolfson’s insurer to request her address and to counsel’s entry of 

appearance for Wolfson in September of 2021, which he claims demonstrates

actual notice of the suit.

In McCreesh, the plaintiff served a writ of summons on the Philadelphia 

City Law Department within the applicable statute of limitations period. 

However, the writ was served by certified mail, which was procedurally 

improper. See McCreesh, at 666. The plaintiff then effected service by hand 

delivery as required after the statute of limitations had expired. The 

McCreesh Court determined that the technically deficient service by mail was 

nonetheless acceptable, where counsel for the city received actual notice of 

the litigation within the statute of limitations period and remanded the case 

to the trial court to consider whether the city suffered prejudice as a result of 

the delay of proper service. See id. at 674. The Court concluded that strict 
J-A15035-23

- 9 -

compliance with the procedural rules was unnecessary under these 

circumstances and explained:

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 . . . 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.

Id. at 674.

The Court was also careful to emphasize that the plaintiff did eventually 

formally serve the defendant with process, that without proper service 

jurisdiction could not attach, and that its holding does not address situations

where a plaintiff never complies with the rules governing service of process. 

See id. at 666, n.1.

Here, Wimbs did not formally serve Wolfson with the writ of summons

or complaint by any means. Instead, the only actions that he took were to 

attempt to serve the writ on Wolfson at an address at which she did not reside

and to contact counsel for her insurance company to advise of the suit after

the statute of limitations had expired. While counsel for the insurance 

company did enter an appearance for Wolfson, this did not occur until 

September of 2021, about a year after the statute of limitations period 

expired. The absence of actual notice within the statute of limitations and lack 

of eventual proper service distinguishes it from McCreesh, wherein the 

attorney for the defendant received the writ of summons within the prescribed 
J-A15035-23

- 10 -

statutory timeframe, albeit through certified mail rather than personal delivery 

as required. While McCreesh excuses technical non-compliance with 

procedural rules under limited circumstances, in this case, there was no 

significant attempt to comply with the rules whatsoever.

Accordingly, for the foregoing reasons, we affirm the trial court’s July

14, 2022 order granting Wolfson’s preliminary objections to Wimbs’ complaint 

and dismissing the complaint.

Order affirmed.

Judge Murray joins the memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2023