J. A18017/16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

FERNANDO MELENDEZ, 

AS ADMINISTRATOR OF THE ESTATE : OF DAMARIS REYES, DECEASED, 

Appellant 

v. 

THE GOOD SAMARITAN HOSPITAL OF : LEBANON, PENNSYLVANIA; 

LEBANON EMERGENCY PHYSICIANS; 

THE GOOD SAMARITAN HOSPITAL 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

No. 1496 MDA 2015 

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). 
J. A18017/16 

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 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. 

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). 

Pa.R.C.P. 401. 

3 

(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. 

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. 
J. A18017/16 

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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