J-A17034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES FEEHAN AND SUSAN ROSEMAN, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ALLSTATE INSURANCE COMPANY AND J. 

ROBINSON & SONS, INC.,

Appellees No. 2563 EDA 2013

Appeal from the Order entered August 14, 2013

In the Court of Common Pleas of Bucks County

Civil Division at No: 05-8706-16-1

BEFORE: GANTMAN, P.J., PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED JUNE 29, 2015

James Feehan and Susan Roseman (Appellants) commenced a lawsuit 

against Allstate Insurance Co. (Allstate) and J. Robinson & Sons Inc. 

(Robinson) in 2005, but failed to serve the complaint until 2012, well after 

the applicable statutes of limitations ran. Allstate and Robinson filed 

preliminary objections arguing Appellants’ failure to do so required dismissal 

of the suit under Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), and its 

progeny. The trial court sustained the preliminary objections and dismissed 

the action with prejudice. We affirm. 

On December 12, 2004, fire destroyed Appellants’ property. They 

submitted a claim to Allstate (their insurer), which denied the claim the next 
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day. Appellants then sued Allstate for breach of contract and bad faith, and 

Robinson (their insurance broker) for malpractice.1 Appellants commenced 

their action by complaint filed on December 7, 2005. Appellants, however, 

did not properly serve the complaint on Allstate or Robinson. Nonetheless, 

twenty days later, counsel for Allstate filed a written entry of appearance 

with a demand for a trial by a jury of twelve. No attorney entered an 

appearance for Robinson. For the next six years, no docket activity 

occurred, except in 2008 and 2010, when the county prothonotary mailed 

Appellants termination notices. To each notice, counsel filed certificates of 

active status to prevent the trial court from sua sponte dismissing the case 

for lack of activity. 

On January 27, 2012, Appellants’ counsel filed a praecipe to reinstate 

the complaint, and a sheriff’s deputy served Allstate and Robinson on 

January 31, 2012. Allstate and Robinson filed preliminary objections seeking 

dismissal of Appellants’ complaint as barred by the statutes of limitations, 

since Appellants did not serve the complaint until long after the statutes of 

limitations had expired. The trial court sustained the preliminary objections 

and dismissed Appellants’ complaint with prejudice. This appeal followed.

Appellants raise two issues:

____________________________________________

1 Count one of the complaint is for breach of contract against Allstate, count 

two is for bad faith against Allstate, and count three is for malpractice 

against Robinson.
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1. Whether the trial court erred in granting [Allstate and 

Robinson’s] Preliminary Objections based on insufficient 

service where [Allstate and Robinson] had notice of 

[Appellants’] Complaint within twenty (20) days from the 

filing thereof?

2. Whether the trial court erred in granting [Allstate and 

Robinson’s] Preliminary Objections based on insufficient 

service where [Allstate and Robinson] have failed to establish 

prejudice warranting dismissal of [Appellants’] Complaint?

Appellants’ Brief at 3.

Whether a statute of limitations bars a cause of action is generally a 

question of law. Devine v. Hutt, 863 A.2d 1160, 1167 (Pa. Super. 2004). 

However, we review a trial court’s decision to dismiss a case for 

noncompliance with Lamp for an abuse of discretion. Englert v. Fazio 

Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. 2007) (quoting 

Farinacci v. Beaver County Indus. Dev. Author., 511 A.2d 759 (Pa. 

1986)). Whether the plaintiff made good-faith efforts to serve the 

defendants must be evaluated on a case-by-case basis. Id. Moreover, the 

plaintiff has the burden of showing a good-faith attempt to serve. See 

Cahill v. Schults, 643 A.2d 121, 123 (Pa. Super. 1994).

At the outset, Allstate and Robinson improperly raised statutes of 

limitations2 defenses by way of preliminary objections. See Pa.R.C.P. 

____________________________________________

2 The parties characterize Allstate and Robinson’s preliminary objections as 

raising “improper service.” However, Allstate and Robinson were properly 

served, albeit in 2012. Rather, the issue is whether Appellants’ failure to 

serve the complaint timely and properly negates the tolling of the statute of 

limitations under Lamp. “The existence of a statute of limitation which cuts 

off a remedy does not constitute a defect in the ‘form of service.’” 

(Footnote Continued Next Page)
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1030(a) (requiring that affirmative defenses such as the statute of 

limitations be raised in new matter); Devine, 863 A.2d at 1167 (“[A] statute 

of limitations affirmative defense cannot be raised in preliminary objections 

in the nature of a demurrer, unless the particular statute of limitations is 

nonwaivable.”). Appellants, however, failed to file preliminary objections to 

the improper raising of the statutes of limitations in preliminary objections, 

which waives this procedural error. Richmond v. McHale, 35 A.3d 779, 

782-83 (Pa. Super. 2012); DeMary Latrobe Printing & Pub’g Co., 762 

A.2d 758, 762 (Pa. Super. 2000) (en banc); see also Lamp, 366 A.2d at 

885 (noting plaintiff did not object to defendants’ raising of the statute of 

limitations in preliminary objections). Accordingly, the trial court’s scope of 

review extended to include a determination of whether the affirmative 

defense of the statute of limitations barred the claims of Appellants’ 

complaint. DeMary, 762 A.2d at 762.

The Lamp rule was intended to “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) (quoting Ins. Co. of N. Am. v. Carnahan, 

284 A.2d 728, 729 (Pa. 1971)). It prevents a plaintiff from commencing an 

action (which tolls the statute of limitations) and stalling the case by not 

(Footnote Continued) _______________________

Devine, 863 A.2d at 1167 (quoting Farinacci, 511 A.2d at 757) (emphasis 

added in Devine).
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notifying the defendant through service of original process. See Lamp, 366 

A.2d at 889. Therefore, a writ of summons or complaint “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.

Over the years, our Supreme Court has modified and refined the 

Lamp rule several times. In Farinacci, the Court clarified that plaintiffs 

must demonstrate “a good-faith effort to effectuate notice of 

commencement of the action.” Farinacci, 511 A.2d at 759. The Court 

stated that “[t]he purpose for the [Lamp] rule . . . ‘is to avoid the situation 

in which a plaintiff can bring an action, but by not making a good-faith effort 

to notify a defendant, retain exclusive control over it for a period in excess 

of that permitted by the statute of limitations.’” Id. (quoting Lamp, 366 

A.2d at 889) (emphasis added in Farinacci).

Later, in Witherspoon v. City of Philadelphia, 768 A.2d 1079, 1084 

(Pa. 2001) (Opinion Announcing the Judgment of the Court), a plurality of 

the Court opined that a strict reading of Lamp was necessary. 

Consequently, the plurality stated that a plaintiff must “immediately and 

continually” reissue a writ or reinstate a complaint if it could not timely serve 

process and the statute of limitations had run in the interim. Id. However, 

as we noted in Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003), a majority 

of the justices in Witherspoon actually rejected the requirement that a 

plaintiff must “immediately and continually” reissue an un-served writ to be 
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entitled to statute-of-limitations tolling. Id. at 80-81 (noting that the five 

justices who wrote or joined the concurring and dissenting opinions rejected 

the “immediately and continually” reissue standard). Neither this Court nor 

a majority of the Supreme Court adopted the Witherspoon plurality’s 

standard. See Sardo v. Smith, 851 A.2d 168, 170 & n.4 (Pa. Super. 

2004).

McCreesh represents our Supreme Court’s latest exposition of Lamp. 

In McCreesh, our Supreme Court granted review to clarify what constitutes 

a good faith effort by a plaintiff to effectuate notice to a defendant of the 

commencement of an action under Lamp. The Court addressed two lines of 

cases from our intermediate appellate courts interpreting Lamp. 

The Superior and Commonwealth Courts have struggled to apply 

the Lamp-Farinacci rule, with some panels requiring plaintiffs 

to comply strictly with the Rules of Civil Procedure related to 

service of process and local practice in order to satisfy the 

good[-]faith requirement, see, e.g., Teamann v. Zafris, 811 

A.2d 52, 63 (Pa. Cmwlth. 2002), and other panels providing a 

more flexible approach, excusing plaintiffs’ initial procedurally 

defective service where the defendant has actual notice of the 

commencement of litigation and is not otherwise prejudiced, 

see, e.g., Leidich v. Franklin, 575 A.2d 914 (Pa. Super. 1990). 

We now adopt the more flexible approach, concluding that it 

sufficiently protects defendants from defending against stale 

claims without the draconian action of dismissing claims based 

on technical failings that do not prejudice the defendant.

* * *

In applying Lamp and its progeny, the Commonwealth and 

Superior Courts have formulated inconsistent rules, sometimes 

dismissing cases due to plaintiffs’ failure to comply strictly with 

the Rules of Civil Procedure and on other occasions reserving the 

drastic measure of dismissal for only those cases where the 

defendant has been prejudiced by plaintiff’s failure to comply 
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with the rules. Compare Teamann, 811 A.2d 52 (Pa. Cmwlth. 

2002) (equating “good faith” with strict compliance with the 

Rules of Civil Procedure); Green [v. Vinglas], 635 A.2d 1070, 

1073 (Pa. Super. 1993) (same); Williams [v. SEPTA], 585 A.2d 

583 (Pa. Cmwlth. 1991) (same); Feher [v. Altman], 515 A.2d 

317, 319 (Pa. Super. 1986) (same); with Fulco [v. Shaffer],

686 A.2d 1330 [(Pa. Super. 1996)] (refusing to dismiss claims 

based on failure to comply with rules where defendant received 

actual notice and was not prejudiced); Leidich, 575 A.2d 914 

(Pa. Super. 1990) (same); Hoeke [v. Mercy Hosp.], 386 A.2d 

71 (Pa. Super. 1978) (same); Big Beaver Falls Area Sch. Dist. 

v. Big Beaver Falls Area Educ. Assoc., 492 A.2d 87 ([Pa. 

Cmwlth.] 1985) (same); but see Schriver [v. Mazziotti], 638 

A.2d [224, 226 (Pa. Super. 1994)] (holding that Lamp requires 

compliance but allowing exceptions as in Leidich).

Upon review of these cases, we conclude that the rigid 

compliance requirement of the Teamann line of cases is 

incompatible with the plain language of [Pa.R.C.P. No.] 401, the 

spirit of Lamp, and the admonition of Rule 126 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.

In setting forth this rule, we are merely re-animating the 

purpose of Lamp and reigning [sic] in the line of cases which 

have strayed from it. 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 
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objective bright line standard of compliance that is wholly 

inconsistent with the concept of good faith.

McCreesh, 888 A.2d at 666, 673-74 (footnotes and parallel citations 

omitted) (emphases added). In short, per McCreesh, a case should not be 

dismissed under Lamp where a) there has been a good-faith effort to gain 

service, b) there is a technical non-compliance with perfecting service, and 

c) the defendant(s) received actual notice of original process, unless the 

defendant(s) suffered prejudice as a result of technical noncompliance with 

the service rules.

With the above standard in mind, we turn to Appellants’ first 

argument. Appellants undisputedly did not serve the complaint upon 

Allstate and Robinson until January 27, 2012, the date on which the return 

of service indicates the sheriff handed a copy of the complaint to the 

defendants at their places of business. Appellants argue the trial court erred 

in finding that they made no good-faith effort to provide Allstate and 

Robinson with notice of the filing of the complaint. 

We first affirm the trial court’s order as it pertains to Robinson. 

Counsel’s December 27, 2005 entry of appearance was limited to Allstate. 

Appellants therefore concede no evidence shows that Robinson had notice of 

the filing of this action until 2012. The trial court did not abuse its discretion 

in dismissing this action against Robinson.

Regarding Allstate, Appellants argue that Allstate had actual notice of 

the complaint because its counsel entered a written appearance only 20 days 

after the complaint was filed. Allstate and Robinson counter that Appellants 
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did not attempt to serve the complaint properly until six years after filing. 

We view this issue as whether Appellants satisfied their burden of showing a 

good-faith attempt to provide service of process upon Allstate. We hold the 

trial court did not abuse its discretion in concluding otherwise. 

As noted above, the McCreesh Court held that Lamp and the Rules of 

Civil Procedure do not 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,” McCreesh, 888 A.2d at 674 

(emphasis added). The Court did not define “technical missteps” or 

“technical noncompliance,” but McCreesh’s facts are illustrative. McCreesh 

filed a praecipe for a writ of summons within the applicable two-year statute 

of limitations. Id. at 665. He sent the writ to the City of Philadelphia by 

certified mail. The City acknowledged that it received notice when a 

receptionist at the City Law Department signed for the package one day 

before the statute of limitations ran. Id. Service by certified mail was not 

technically proper, as the rules provided for service upon a political 

subdivision by the sheriff or a competent adult, and by handing a copy to an 

agent duly authorized by the political subdivision to receive service of 

process. Id. at 667 & nn.5, 6 (quoting, inter alia, Pa.R.C.P. No. 400.1). 

Three months later, McCreesh filed his complaint, requested reissuance of 

the writ of summons, and properly served both on the City. Id. The City 

filed preliminary objections contesting service of the original writ. McCreesh 

maintained that the original writ was served in compliance with the rules, 
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arguing that delivery of the writ by a postal worker constituted service by a 

competent adult. The Court affirmed the trial court’s finding that the City 

had actual notice of the suit and that Appellant had made a good-faith effort 

to perfect service. The matter was remanded however, for a factual 

determination as to any prejudice suffered by the City. Thus, in McCreesh, 

subject to further findings as to prejudice, the rule in Lamp was found not 

to have been violated, since McCreesh, in good-faith, attempted service 

upon the City, service was only technically noncompliant, and the City had 

actual notice of the suit. Cf. Englert, 932 A.2d at 127 (concluding that 

notice of possible litigation does not suffice for actual notice under

McCreesh).

In contrast, here there is no evidence that Allstate received technically 

noncompliant service, or that Appellants made any good-faith efforts to 

effect proper service until more than six years passed from the complaint 

filing. Although Allstate’s attorney was evidently aware of the filing of the 

complaint, nothing in the record indicates Appellants tried to serve the 

complaint in 2005, or that in doing so, committed a good-faith “technical” 

misstep to perfect service. In fact, the record is devoid of any explanation 

as to how Allstate even came into possession of the complaint. Moreover, 

Appellants never sought discovery or requested a hearing to present 

evidence of attempts to serve timely the complaint on Allstate. Appellant 

could not rely upon Allstate’s entry of appearance in 2005, since Rule of Civil 

Procedure 1012(a) expressly provides that an entry of appearance does not 
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waive the right to waive any defenses. This of course would include a 

defense based upon improper service. We reject Appellants’ argument that 

we should “presume” their alleged efforts to be sufficient. No such 

presumption exists, for a plaintiff bears the burden of proving sufficient 

service. This is not a case where Appellants made a misguided attempt to 

serve the complaint, or tried to serve the complaint but failed. Rather, on 

the face of the record, it appears Appellants did nothing to attempt to 

properly serve Allstate. The trial court did not abuse its discretion in 

dismissing Appellants’ action against Allstate. See Englert, supra (finding 

no abuse of discretion to dismiss where appellant took no action once writ 

was issued to ascertain if service was properly made and instead relied upon 

customary practice of waiting for word from sheriff’s office). 

We do not think McCreesh is sufficiently elastic to include within 

technical noncompliance a total lack of diligence to serve original process. 

Were we to construe McCreesh to such an extent the rules relating to 

service would be relegated to mere surplusage. Nor does Pa.R.C.P. No. 126 

(requiring liberal interpretation of the Rules of Civil Procedure unless a 

party’s substantial rights are affected) compel a contrary result. It would be 

ironic to invoke Rule 126 to excuse Appellants’ failure to serve original 

process, for the purpose of liberally construing the Rules of Civil Procedure is 

“to secure the just, speedy and inexpensive determination of every action 

or proceeding to which they are applicable.” Pa.R.C.P. No. 126 (emphasis 

added). Appellants’ would instead use Rule 126 to countenance delay. 
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McCreesh interpreted Lamp liberally to avoid unjust dismissals where 

plaintiffs only are in technical noncompliance with the Rules of Civil 

Procedure, but make good-faith efforts to serve defendants with original 

process. McCreesh does not grant parties carte blanche to disregard 

completely the rules regarding service.

In sum, we hold the trial court did not abuse its discretion in 

concluding that Appellants did not make a good-faith effort to serve 

Robinson and Allstate with their complaint in 2005. Therefore, the filing of 

their complaint did not toll the statute of limitations under Lamp and its 

progeny. Because Appellants failed to make a good-faith effort at service, 

we need not address Appellants’ second issue regarding prejudice. 

Accordingly, we affirm the order sustaining Allstate and Robinson’s 

preliminary objections and dismissing Appellants’ action with prejudice.

Order affirmed. 

President Judge Gantman and Judge Panella concur in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2015