J-A18038-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA WILKINSON N/K/A MILLER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

G. BASS COMPANY,

Appellee No. 1910 MDA 2015

Appeal from the Order Entered October 5, 2015

In the Court of Common Pleas of Berks County

Civil Division at No(s): 13-498

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 07, 2016

Lisa Wilkinson, n/k/a Miller, (“Appellant”), appeals from the order 

entered in the Court of Common Pleas of Berks County granting G. Bass 

Company’s (“Appellee”) motion for summary judgment and dismissing 

Appellee’s complaint sounding in negligence. For the following reasons, we 

affirm.

The lower court provides an apt factual and procedural history as 

follows:

This case stems from a personal injury claim of an alleged trip 

and fall accident. On February 4, 2011, [Appellant] was walking 

to her residence while an oil delivery truck belonging to 

[Appellee] was operating in the area. Appellant alleges that in 

the course of walking to her residence, she had to step over the 

oil delivery hose belonging to Appellee. Appellant alleges that 

while stepping over the oil delivery hose Appellee’s agent caused 

the hose to be moved or pulled in such a manner that the hose 

made contact with Appellant’s feet and legs which resulted in 
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Appellant’s fall and subsequent injuries which are the substance 

of the instant manner.

Appellant was in communication with Appellee’s insurance 

company within approximately one month of the accident by way 

of telephone. A praecipe to issue a writ of summons was filed on 

January 14, 2013. Attempts at service were made by the 

Sheriff’s Department on January 16, twice, and on January 24, 

2013. A return of no service made was filed on January 28, 

2013. 

Over a year later on February 24, 2014, the writ was reissued 

and Appellee was successfully served on March 10, 2014. 

Appellant filed the Complaint on June 16, 2014. Appellee filed 

the Answer to the Complaint with New Matter on September 28, 

2014. Appellee subsequently filed a motion for summary 

judgment on July 16, 2015. [The lower court] held oral 

argument on Appellee’s Motion for Summary Judgment and on 

October 5, 2015, issued an order granting Appellee’s Motion and 

dismissing Appellant’s Complaint with prejudice, which order is 

now the subject of the instant appeal.

Lower Court Opinion, filed January 28, 2016, at 1-2.

In this timely filed appeal, Appellant presents the following questions 

for our consideration:

1. Where a plaintiff has filed suit and delivered process for 

service and thereby tolled the statute of limitations; and 

where service has been attempted prior to the statute of 

limitations, where the defendant’s representatives had an 

opportunity to take plaintiff’s statements and were given 

medical records prior to commencement of the case, where 

no prejudice has been alleged, and where defendant was 

ultimately served at the address where service was attempted 

before, may a plaintiff be deprived of her right to trial due 

solely to a lapse of time between attempts at re-serving the 

writ?

2. Where defendant claims that the mode of service or the writ 

was invalid, do the Rules state that it should be raised as a 

Preliminary Objection, and does failure to do so waive such 

objection?
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Appellant’s brief at 3.

With regard to appellate review of a summary judgment, Pennsylvania 

law makes clear:

[W]e are not bound by the trial court's conclusions of law, but 

may reach our own conclusions. In reviewing a grant of 

summary judgment, the appellate court may disturb the trial 

court's order only upon an error of law or an abuse of discretion. 

The scope of review is plenary and the appellate court applies 

the same standard for summary judgment as the trial court.

McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 941 (Pa.Super. 

1998), appeal denied, 743 A.2d 921 (Pa. 1999). See also Moses v. 

T.N.T. Red Star Exp., 725 A.2d 792 (Pa.Super. 1999), appeal denied, 739 

A.2d 1058 (Pa. 1999).

“Judicial discretion requires action in conformity with law on facts and 

circumstances before the trial court after hearing and consideration. 

Consequently, the court abuses its discretion if, in resolving the issue for 

decision, it misapplies the law or exercises its discretion in a manner lacking 

reason.” Devine v. Hutt, 863 A.2d 1160, 1166–67 (Pa.Super. 2004) 

(quoting Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 

2000) (internal citations omitted). “Summary judgment is proper if an 

action is barred by the applicable statute of limitations.” Id. (citing Tohan 

v. Owens-Corning Fiberglas Corp., 696 A.2d 1195 (Pa.Super. 1997), 

appeal denied, 718 A.2d 786 (Pa. 1998); Brooks v. Sagovia, 431 

Pa.Super. 508, 636 A.2d 1201 (Pa.Super. 1994)).
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Appellant first contends the court erred in ruling that she effectively 

failed to toll the statute of limitations when she received a return of “no 

service” from the sheriff and then allowed 13 months to pass after the 

expiration of the limitations period before having the writ reissued and 

serving Appellee. Her initial attempts1to serve Appellee within the 

limitations period and at the business address where service was eventually 

made demonstrated good-faith attempts to notify Appellee of the 

commencement of litigation, Appellant maintains. Decisional law of this 

Commonwealth does not support her position.

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) (citation omitted). The Rules of Civil 

Procedure provide that “[a]n action may be commenced by filing with the 

prothonotary (1) a praecipe for a writ of summons, or (2) a complaint.” See

Pa.R.C.P. 1007. The language of Pa.R.C.P. 401, 2 moreover, prescribes that 

____________________________________________

1 The record reflects that two attempts at service were made on January 16, 

2013 (Sheriff indicating “no answer” at 2:25 p.m. and “Resident . . . said he 

didn’t know the business), and one more attempt was made on January 24, 

2013 (Sheriff indicating “no answer” at 6:24 p.m., left card). No Service 

Return, filed 2/1/13; C.R. #3.

2 Rule 401. Time for Service. Reissuance, Reinstatement and 

Substitution of Original Process. Copies for Service, provides: 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

(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 ..., 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.

(3) A substituted writ may be issued or a substituted complaint 

filed upon praecipe stating that the former writ or complaint has 

been lost or destroyed.

(4) A reissued, reinstated or substituted writ or complaint shall 

be served within the applicable time prescribed by subdivision 

(a) of this rule ... after reissuance, reinstatement or substitution.

(5) If an action is commenced by writ of summons and a 

complaint is thereafter filed, the plaintiff instead of reissuing the 

writ may treat the complaint as alternative original process and 

as the equivalent for all purposes of a reissued writ, reissued as 

of the date of the filing of the complaint. Thereafter the writ 

may be reissued, or the complaint may be reinstated as the 

equivalent of a reissuance of the writ, and the plaintiff may use 

either the reissued writ or the reinstated complaint as alternative 

original process.

Note: If the applicable time has passed after the issuance of the 

writ or the filing of the complaint, the writ must be reissued or 

the complaint reinstated to be effective as process. Filing or 

reinstatement or substitution of a complaint which is used as 

alternative process under this subdivision, has been held 

(Footnote Continued Next Page)
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service shall be made within 30 days after issuance of the writ or complaint, 

but it also allows a prothonotary to preserve the validity of the original 

process by reissuing the writ or reinstating the complaint at any time and 

any number of times. 

In Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), our Supreme Court 

addressed what it perceived as endemic abuses of process by plaintiffs who 

tolled the statute of limitations by filing a writ of summons, had the writ 

repeatedly reissued, and consciously failed to notify defendants of the suit. 

Though technically compliant with the Rules of Civil Procedure, this process 

nonetheless undermined the purpose of the statute of limitations, which is to 

protect defendants from stale claims. The Court, therefore, 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. at 889. In Farinacci v. 

Beaver County Industrial Development Authority, 511 A.2d 757 (Pa. 

1986), the Supreme Court subtly modified the wording in Lamp wherein it 

held that “Lamp requires of plaintiffs a good-faith effort to effectuate notice 

(Footnote Continued) _______________________

effective in tolling the statute of limitations as the reissuance or 

substitution of a writ.

Pa.R.C.P. 401.
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of commencement of the action.” Id. at 759. These two statements came 

to be known as the Lamp–Farinacci rule. 

After the intermediate appellate courts offered discordant 

interpretations of what constitutes a good-faith effort under the LampFarinacci rule—compare, e.g., Teamann v. Zafris, 811 A.2d 52, 63 

(Pa.Cmwlth. 2002) (requiring strict compliance with the Rules of Civil 

Procedure related to service of process and local practice in order to satisfy 

good faith requirement) with Leidich v. Franklin, 575 A.2d 914 (Pa.Super. 

1990) (adopting more flexible approach of excusing plaintiffs' initial 

procedurally defective service where the defendant has actual notice of the 

commencement of litigation and is not otherwise prejudiced)—our Supreme 

Court clarified what constitutes a plaintiff’s good faith effort to notify a 

defendant of the commencement of an action. In McCreesh, the plaintiff 

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

statute of limitations. Id. at 665. He delivered 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, however, as the 

rules required 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, the plaintiff 
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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. The plaintiff maintained that the 

original writ was served in compliance with the rules, arguing that delivery of 

the writ by a postal worker constituted service by a competent adult. 

The Court held that plaintiff satisfied his obligation to make good-faith 

effort to give notice of commencement of action when defendants received 

actual notice of the commencement of litigation and are not otherwise 

prejudiced, abrogating that line of cases requiring strict compliance with the 

rules of civil procedure:

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 Rule 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.

McCreesh, 888 A.2d at 674 (emphasis added).

In Englert v. Fazio Mechanical Services, Inc., 932 A.2d 122 

(Pa.Super. 2007), a panel of this Court identified an absence of good faith 
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effort where plaintiffs’ counsel allowed six months to pass—taking the case 

beyond the statute of limitations period—before ascertaining that Sheriff’s 

service had not been effected. The trial court had dismissed the case under 

Lamp, we affirmed, and our Supreme Court remanded for reconsideration 

under McCreesh. On remand, we again affirmed the trial court's order 

granting summary judgment in favor of defendant. As in the case sub 

judice, the plaintiffs brought their action against the defendant corporation 

within the statute of limitations, but the Sheriff unsuccessfully attempted 

service at the defendant’s purported business address and sent plaintiffs' 

counsel a return indicating no service was made. Plaintiffs' counsel, 

however, had recently moved his law office and experienced failed mail 

deliveries. The lawyer never checked to ascertain that service was made 

and instead waited for the sheriff's return.

Six months later, plaintiffs received an inquiry from the defendant’s 

insurance carrier as to whether they intended to “make a claim” for their 

injuries, as the statute of limitations would run in two weeks and preclude 

them from making a claim. Counsel, meanwhile, obtained a copy of the 

Sheriff’s return that same month and filed a praecipe to reissue the writ six 

days after the statute of limitations expired. Service was effected soon 

afterward.

We observed, “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.” Id. at 124. Rather, “neglect and mistake to fulfill 
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the responsibility to see that requirements for service are carried out may be 

sufficient to bring the rule in Lamp to bear.” Id. Therefore, unintentional 

conduct can constitute a lack of good faith. Id. at 124–25. We, therefore, 

discerned in Englert a lack of good faith efforts to serve process therein. 

Our decision rested on the lawyer's failure to determine if service was made 

when there were problems with mail delivery to the law office. We stated 

that the lawyer's “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.” Id. at 127.

Here, the case against a good faith effort is even stronger than in 

Englert, for Appellant received the “no service” return from the Sherriff and 

still allowed 13 months—all after the limitations period had run—to transpire 

before she sought reissuance of the writ and successfully served it upon 

Appellee. As in Englert, we find that such knowing inaction demonstrates 

an inexcusable intent to stall the judicial machinery and, accordingly, 

precludes finding Appellant made a good faith effort consistent with 

Supreme Court precedent.

We next address Appellant’s contention that Appellee waived its 

statute of limitations-based challenge by raising it in a New Matter rather 

than in Preliminary Objections. Pennsylvania Rule of Civil Procedure 1030 

provides, with exceptions inapplicable to this case, as follows:

[A]ll affirmative defenses including but not limited to the 

defenses of accord and satisfaction, arbitration and award, 

consent, discharge in bankruptcy, duress, estoppel, failure of 
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consideration, fair comment, fraud, illegality, immunity from 

suit, impossibility of performance, justification, laches, license, 

payment, privilege, release, res judicata, statute of frauds, 

statute of limitations, truth and waiver shall be pleaded in a 

responsive pleading under the heading “New Matter[.”]

Pa.R.C.P. 1030 (emphasis added). Under our rules, therefore, a plaintiff 

raising the affirmative defense of statute of limitations must do so in an 

Answer and New Matter. 

Notwithstanding this procedural mandate, Appellant cites succinctly to 

decisional law as standing for the proposition that “where a defendant files 

an answer to the complaint objections to validity of the service ultimately 

effected are waived.” Appellant’s brief at 8, citing Cinque v. Asare, 585 

A.2d 490, 492 (Pa.Super. 1990). We disagree.3

In qualifying the rules pertaining to the tolling of the statute of 

limitations, Lamp held that failure to promptly notify defendants results in 

nullification of the commencement of the action. Id. at 889; see also

Moses, 725 A.2d at 797 (finding absence of a good-faith effort to serve 

defendant nullifies both the commencement of the action and the tolling of 

the statute of limitations). Therefore, to toll the statute of limitations, a 

plaintiff must ultimately make a good-faith effort to serve the complaint in a 

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3 We distinguish Cinque on its facts, where the plaintiff in that case filed a 

timely complaint, the defendants—having received actual notice—filed an 

answer, and the parties engaged in two years of discovery before defendants 

alleged defective service. We rejected defendant’s arguments and held that 

they had waived any “defective service” or statute of limitations arguments 

by answering the complaint and subsequently engaging in two years of 

litigation prior to the challenge. Id. at 491.
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timely manner. Devine, 863 A.2d at 1167–68. See also Ramsay v. 

Pierre, 822 A.2d 85, 90 (Pa.Super. 2003) (recognizing filing complaint tolls 

statute of limitations, provided that plaintiff attempts to effect [timely] 

service).

In Devine, we addressed the appropriate filing by which to challenge 

the failure to toll the statute of limitations with a good-faith service of 

process:

The existence of a statute of limitation which cuts off a remedy 

does not constitute a defect in the “form of service.”

Farinacci [ ] (emphasis added). Thus, an affirmative defense of 

a statute of limitations is not properly raised in preliminary 

objections; it is properly raised in new matter. Id.; Pa.R.C.P. 

1028; 1030. Additionally, 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. Reuben v. O'Brien, 299 Pa.Super. 372, 445 A.2d 

801 (1982). When a defendant raises a waivable statute of 

limitations via preliminary objections, the proper challenge is to 

file preliminary objections to strike the defendant's preliminary 

objections for failure of a pleading to conform to law or rule of 

court. Farinacci[ ]; Pa.R.C.P. 1028(a)(2).

Whether the statute of limitations has run on a claim is generally 

a question of law for the trial judge. Id. The filing of a praecipe

for a writ of summons [or a complaint] to commence an action is 

sufficient to toll the running of the statute of limitations, if the 

plaintiff makes a good faith effort to serve the writ or complaint 

in compliance with the other applicable rules of court. Lamp, 

supra. When a plaintiff successfully tolls the applicable statute 

of limitations on an action by timely issuance and delivery of a 

[complaint] for service, the action is kept alive for a period 

equal to the original statute of limitations. Shackelford v. 

Chester County Hosp., 456 Pa.Super. 356, 690 A.2d 732 

(1997) (citing Beck v. Minestrella, 264 Pa.Super. 609, 401 

A.2d 762 (1979) (stating issuance and delivery of writ for 
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service keeps action alive for period equal to original period as 

measured from the filing date of writ)). 

Devine at 1167–68 (emphasis in original). See also Daniel v. City of 

Philadelphia, 86 A.3d 955, 956-58 (Pa.Cmwlth 2014) (holding statute of 

limitations defense properly raised in New Matter rather than preliminary 

objections where lack of good faith effort to serve complaint after statute of 

limitations had run).4

Under this precedent, Appellant failed to toll the statute of limitations 

with her timely commencement of litigation because she failed to make a 

good faith effort to notify Appellee of the suit long after the limitations 

period had expired. We, therefore, find Appellee appropriately raised a 

limitations-based affirmative defense in its New Matter, and we affirm the 

order granting Appellee’s motion for summary judgment.

Order is AFFIRMED.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016

____________________________________________

4 Though not binding upon this Court, the decision of the Commonwealth 

Court is instructive on the present issue.