J. 

### A18017/16 NON-PRECEDENTIALDECISION

## - SEE 

### SUPERIORCOURT

### I.O.P.

### 65.37 FERNANDO MELENDEZ, AS ADMINISTRATOROFTHE ESTATE : OF DAMARIS REYES, DECEASED, 

### Appellant

v. THE GOOD SAMARITAN HOSPITAL OF : LEBANON, PENNSYLVANIA; LEBANON EMERGENCYPHYSICIANS; THE GOOD SAMARITAN HOSPITAL INTHE SUPERIORCOURTOF PENNSYLVANIA

No. 1496 MDA 2015

Appeal

### from theOrder Entered

### August 3, 2015, in

### theCourtofCommon 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 

### ofThe Good 

### Samaritan Hospital of Lebanon, Pennsylvania, and Lebanon Emergency Physicians, and The Good 

### Samaritan Hospital. We reverse. Thefacts as recounted bythe

### trial courtare 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 * FormerJusticespeciallyassigned to

### theSuperiorCourt.J. 

### A18017/16 hours 

### after arriving at the hospital, Ms. Reyes was pronounced dead. According to 

### [appellant], her death was a 

### direct resultof 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 

### thefollowing notation was entered on the docket: "ATTORNEY SERVICE, NOTATION FORTHE RECORD." 

### [Appellant] believes 

### that one 

### of its 

### staff members 

### mistakenly attempted servicevia 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 theComplaint 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

### courtopinion,

### 8/4/15at 2-3. By 

### order dated

### August 3, 2015, the 

### trial court granted the motion 

### for 

### judgmentonthe pleadings. 

### Appellant appealed to 

### this court and raises 

### the following issue 

### for review: 

## -2J. 

### A18017/16 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) daydelay in service? 

### Appellant's briefat 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 bythe

### 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 bythe 

### 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. 

### Steinerv.

### Bell

## ofPennsylvania, 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, 606A.2d470, 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 onthe pleadings. (b) The 

### court shall 

### enter such 

### judgment or 

### order asshall be

### proper onthe pleadings. Pa.R.Civ.P. 1034(a

### -b). 

### Initially, appellantcontends

### thatthe

### trial courterredwhen itdismissed the present action on the basis of 

### defective service and the running of the 

### statute of 

### limitations when 

### appellant

### timelyfiled, reinstated, and served the 

### complaint in compliance

### with the 

### statute of 

### limitations and the Pennsylvania RulesofCivil Procedure. As the partiesagree, the

### statute of 

### limitationsfor 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 ofthe 

### statute of 

### limitations butdid not serveappelleesat

### thattime. 

### 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 

## IndustrialDevelopment

### Authority, 510 Pa. 589, 

## -4J. 

### A18017/16

511 A.2d 757 

### (1986), 

### thatservice

### oforiginal 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 ifthe 

### plaintiffthen makes a good 

### faith 

### effort to 

### effectuate service. 

### Moses v. T.N.T. 

### Red 

### Star Express, 725 A.2d 792 

### (Pa.Super.1999), 

### appealdenied, 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." 

### Farinacciat594, 511 A.2d at759. 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

### oftheaction may

### constitute a lack ofgood 

### faith onthe partofthe 

### plaintiff. 

### Devine, 

### supra at 1168 

### (quoting 

### Rosenberg v. 

### Nicholson, 408 Pa.Super. 502, 597 A.2d 145, 148 

### (1991), 

### appealdenied, 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),

### appealdenied, 542 Pa. 655, 668 A.2d 1119 

### (1995). 

## -5J. 

### A18017/16 

### Englertv. 

### Fazio Mech. 

### Services,

### Inc., 932A.2d 122, 

### 124-125 (Pa.Super. 

### 2007),

### appealdenied, 938A.2d 1053 (Pa. 

### 2007). In 

### McCreesh v. 

### City

## of Philadelphia, 888 A.2d 664 (Pa. 

### 2005), a 

### plaintifffiled a 

### writ ofsummons but served it by 

### certified mail in 

### violation of the Pennsylvania Rules of Civil Procedure. The 

### plaintiff subsequently reinstated the

### writ afterthe 

### expiration ofthe 

### statute of 

### limitations and then made proper service. The Cityof Philadelphiafiled 

### preliminary objectionson the basis 

### thatservice 

### ofthe original

### writ did not 

### complywith the rules. The Court of Common Pleas 

### of Philadelphia County overruled the 

### preliminary objections. The 

### Commonwealth Court reversed and remanded 

### for dismissal ofthe case. 

### Id., 888A.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 onApril 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 onthe back

### ofthe

### writwas

### "writ to 

### atty. 

### 1/4/87 RB." The 

### notation 

### mistakenly identified the year as 1987 instead 

### of 1988. The 

### writ wasserved uponthe Franklinsby

### first class mail dated January 5, 1988, and was not served bythe sheriff. Also, on January 5, 1988, the Franklins were served 

### with a notice to appear 

### for a deposition on February 2, 1988. The 

### Franklins'

### attorneyobjected to 

### the deposition, and the parties agreed to postpone the deposition 

### indefinitely. From March 15, 1988 

### through April 4, 1988, Leidich 

### submitted medical billsto the Franklins' 

### insurerwith respectto the possible 

### settlement ofthe claim

### for the policy limits. 

### Leidich, 575 A.2d at915. 

## -6J. 

### A18017/16 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 Franklinswere contesting the case on technical groundsof 

### improperservice, Leidich filed a praecipe to reissuethe 

### writ on May 17, 1988. The

### writwas reissued, and the

### sheriffservedthe

### writ on May 17, 1988. Leidichfiled 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 

### tollthe 

### statute of 

### limitations and 

### renderthe suit viable. 

### Id., 575A.2d at916. This 

### court reversed. This 

### court reasoned 

### thatthe 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., 575A.2d at 919. 

## -7J. 

### A18017/16 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 

### ofthe Pennsylvania Rules

### of Civil Procedure provides in 

### pertinent part: 

### Rule 

### 401. Time 

### for Service. Reissuance, 

### Reinstatement and 

### SubstitutionofOriginal Process. Copies

### for Service (a) Original process shall be served 

### within the Commonwealth 

### within 

### thirty days 

### afterthe issuance 

### ofthe

### writ orthefiling ofthe 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

### writor 

### 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 oftimes. A new 

### party defendantmay be named in a reissued 

### writ or a 

### reinstated complaint.



### _8J. 

### A18017/16 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 

### soughtto 

### alleviate the hardships caused by 

### plaintiffs who exploited the rules ofcivil procedure to make an end run around the

### statutesof 

### limitations. Neither our cases nor our rules 

### contemplate punishing a 

### plaintiff for technical missteps where he has satisfied the purposeofthe

### statute of

### limitations by supplying a 

### defendant with actual notice. Therefore, we embrace the logic

### ofthe 

### Leidich line 

### ofcases, which, 

### applying 

### Lamp, woulddismiss 

### 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

### prejudiceddefendant. 

### McCreesh, 888A.2d at674 

### (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, 

### reinstatementor

### 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 rightsofthe parties. Pa.R.C.P. 126. 

### _9J. 

### A18017/16

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 inconsistentwith 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 fromthe 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 checkthe 

### 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 

### departmentto mail the 

### return ofservice. 

### Englert, 932A.2d at 123.

- 10 -J. 

### A18017/16
The 

### Englerts' counsel had moved his office on October 27, 

### 2003, and had problems receiving his mail. By 

### letterdated 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

### thatdate, hewould 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., 932A.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 appealedto thiscourt. 

### 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 

### whetherservice 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 machinerywhich was put into 

### motion bythe filing of the initial

### writ and 

### simplycannot beexcused.J. 

### A18017/16 

### Id., 932A.2d at 

### 126-127 (citation and

### footnoteomitted). 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] untilAugust 11th, beyond the running ofthe

### statute. Inthe 

### 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 thisat the hearing. Under the rule of 

### Lamp

. . . a clerical 

### errorwould 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.

4The

### complaintwas, in

### fact, reinstated.

- 12 -J. 

### A18017/16 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

### ofCivil Procedure. As a 

### result, service was not made 

### within 30 days of the 

### filing ofthe 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 

### afterthe 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 

### afterthe filing ofthe 

### original complaint and only 17 days

### afterthe passing 

### ofthe

### 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 

### thatservice 

### ofthe 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 

### ofthe 

### statute of 

### limitations period, July 25, 2014, to filethe 

### complaint, appellantwould have

- 13 -J. 

### A18017/16

had 30 days

### from

### thatdate, or 

### untilAugust24, 2014,to make good service. Second, in 

### McCreesh, the Pennsylvania Supreme Court rejected an 

### overlytechnical approachwhich 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 

### complywith the Pennsylvania Rules 

### of Civil Procedure has prejudiced the defendant. Here, 

### there clearly is no 

### attempttostall the

### judicial machinery. Further, giventhe 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

### thatMcCreesh refers to caseswhere 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 

### distinguishablefrom 

### Englert in

### that, in

### Englert, the Englerts provided 

### the 

### sheriff with the wrong address 

### of Timko and Fazio. 

### Althoughthe 

### sherifffiled a 

### return ofservicewhich indicated the newaddress in October 2003, the Englerts or 

### their counsel failed to 

### contactthe 

### sheriff's officeor checkthe docketto see if service had been made. Even

### though the

- 14 -J. 

### A18017/16 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 Englertofthe impending end 

### ofthe

### 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 

### complaintand 

### effectuated service

### within five days. Unlike in 

### Englert, there

was no 

### intentto 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 

### withthe procedural rules. However, it isclear

### from the record

### thatappellant did do so. For

### theforegoing reasons,the

### order is reversed. Bender, P.J.E.

### joinsthis Memorandum. Stevens, P.J.E. files a Dissenting Memorandum. 

### Judgment Entered. 

# / Joseph D. 

### Seletyn, Prothonotary Date: 

### 5/8/2017

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