J-S71003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARILYN RIGMAIDEN DELEON 

Appellant

v.

ALYSSA DESTEFANO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2683 EDA 2017

Appeal from the Order Entered July 13, 2017

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): February Term, 2016 No. 4057

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, J.: FILED APRIL 30, 2019

Marilyn Rigmaiden Deleon challenges the order that granted Appellee, 

Alyssa Destefano’s, motion for summary judgment in this motor vehicle 

accident case. We affirm.

As recounted by the trial court:

On February 26, 2016, [Appellant] commenced a personal injury 

action arising from a car accident that occurred on February 28, 

2014. On April 14, 2016, [Appellant’s] process server made an 

unsuccessful attempt to serve the writ. Nothing in the record 

indicates that service was attempted before April 14, 2016.

On October 17, 2016, [Appellant] filed a complaint. [Appellee], 

in her answer to the complaint, defended the action on the basis 

that the statute of limitations had expired before original service 

of process was made. On April 10, 2017, [Appellee] filed a motion 

for judgment on the pleadings. She argued that [Appellant] failed 

to toll the statute of limitations by not making a good faith effort 

to obtain original service of process within 30 days after the filing 

of the writ. The [c]ourt denied the motion and, on May 12, 2017, 

[Appellee] filed a motion for summary judgment making 

substantially the same argument. The [c]ourt granted 
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[Appellee’s] motion for summary judgment and [Appellant] timely 

appealed the [c]ourt’s decision to the Superior Court.

Trial Court Opinion, filed 6/5/18, at 1-2 (citations omitted).

Appellant filed a one-count complaint alleging negligence against 

Appellee. In granting Appellee’s motion for summary judgment, the court 

“dismissed the action because no good faith effort was made to timely serve 

[Appellee] before the applicable statute of limitations expired.” Id., at 1. 

While Appellant initiated her personal injury action by filing a praecipe for a 

writ of summons on February 26, 2016, the court concluded, “[a]n attempt to 

affect [sic] service was made on April 14, 2016 – nearly seven weeks after 

[Appellant] filed her writ and the [two-year] statute of limitations had expired

[on February 28, 2016].” Id., at 3-4. 

Moreover, there was nothing in the record to demonstrate “any effort, 

good faith or otherwise, to affect [sic] service before April 14, 2016,” nor was 

there “any indication that [Appellee] had actual notice of the personal injury 

action against her.” Id., at 4. Accordingly, Appellant “failed to meet her 

burden to show service was attempted in good faith within 30 days of filing of 

the writ of summons.” Id.; see also Witherspoon v. City of Phila., 768 

A.2d 1079, 1083 (Pa. 2001)(establishing that, at a minimum, a party must 

evince a good-faith attempt at service of a writ “as a kind of condition 

subsequent that must be fulfilled to complete the commencement of the 

action”); Pa.R.C.P. 401(a)(providing that “[o]riginal process shall be served ... 

within thirty days after the issuance of the writ”). Appellant timely appealed
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the court’s grant of summary judgment, and this matter is now properly before 

us.

Preliminarily, Appellant’s brief violates Pa.R.A.P. 2119(a), which 

mandates that an “argument shall be divided into as many parts as there are 

questions to be argued.” Although it contains more than one question to be 

argued, Appellant’s brief features only one undivided argument section. 

However, under these circumstances, this failure does not affect our ability to 

address Appellant’s arguments. We therefore decline to find the issues 

waived.

Appellant contends the trial court erred in granting summary judgment 

for two reasons: 1) Appellant asserts she utilized good-faith efforts to serve 

Appellee, but Appellee’s insurance company refused to provide Appellee’s 

address; and 2) the court violated the coordinate jurisdiction rule. See 

Appellant’s Brief, at 6. Specifically, as to the latter argument, Appellant 

asserts that the coordinate jurisdiction rule prohibited the court from revisiting 

the statute of limitations issue on summary judgment after addressing it in 

the motion for judgment on the pleadings. 

We review challenges to the entry of summary judgment as follows:

[We] may disturb the order of the trial court only where it is 

established that the court committed an error of law or abused its 

discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary 

judgment, we focus on the legal standard articulated in the 

summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule 

states that where there is no genuine issue of material fact and 
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the moving party is entitled to relief as a matter of law, summary 

judgment may be entered. Where the nonmoving party bears the 

burden of proof on an issue, he may not merely rely on his 

pleadings or answers in order to survive summary judgment. 

Failure of a non-moving party to adduce sufficient evidence on an 

issue essential to his case and on which he bears the burden of 

proof establishes the entitlement of the moving party to judgment 

as a matter of law. Lastly, we will review the record in the light 

most favorable to the nonmoving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party.

E.R. Linde Constr. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 

2013) (citation omitted). 

Appellant first avers that the court abused its discretion by concluding 

that Appellant had failed to adduce any evidence to support a finding that she 

had made a good faith effort to effectuate service of the writ on Appellee 

within thirty days after the writ’s issuance. It is unrefuted that: 1) February 

28, 2014, is the date of the car accident alleged in Appellant’s complaint; 2) 

the statute of limitations for Appellant’s cause of action, absent any kind of 

tolling, ran on February 28, 2016, exactly two years after the car accident 

occurred, see 42 Pa.C.S.A. § 5524(2); 3) Appellant filed her praecipe for a 

writ of summons on February 26, 2016, two days prior to the expiration of the 

statute of limitations; and 4) on April 14, 2016, without having reinstated the 

writ, Appellant first attempted service on Appellee. 

“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.” Lamp v. Heyman, 
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366 A.2d 882, 889 (Pa. 1976). “The mere filing of a writ ... without additional 

affirmative action to effectuate timely service of process in compliance with 

the applicable rules of court and local practice does not constitute good faith 

efforts ... and is insufficient to preserve claims” that run afoul of the statute of 

limitations. Devine v. Hutt, 863 A.2d 1160, 1168 (Pa. Super. 2004). 

Furthermore, “it is the plaintiff’s burden to demonstrate that his efforts were 

reasonable.” Id. “Determining whether a plaintiff acted in good faith is within 

the sound discretion of the trial court.” McCreesh v. City of Phila., 888 A.2d 

664, 672 (Pa. 2005). 

However, “[w]here the discretion exercised by the trial court is 

challenged on appeal, the party bringing the challenge bears a heavy burden.” 

Paden v. Baker Concrete Constr., Inc., 658 A.2d 341, 343 (Pa. 

1995)(citation omitted). “An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or misapplied, 

or the judgment exercised is manifestly unreasonable ... discretion is abused.” 

Id. (citation omitted).

Good faith can be demonstrated even in light of technical missteps that 

violate the Rules of Civil Procedure. See id., at 674. (finding original service 

of a writ, erroneously attempted via certified mail, an action done in “good 

faith” as it provided the other party with actual notice of the litigation). 

Nevertheless, “it is not necessary [that] the plaintiff’s conduct be such that it 

constitutes some bad faith act or overt attempt to delay . . . . Simple neglect 
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and mistake to fulfill the responsibility to see that requirements for service are 

carried out may be sufficient” for a finding of a lack of good faith. Devine, 

863 A.2d at 1168 (alteration in original)(citation omitted). 

Other than Appellant’s conclusory statements indicating that a goodfaith effort was made to effectuate service of the writ, Appellant has pointed 

to nothing in the record that could support her assertion. Stated differently, 

there is a dearth of indicia of any action taken by Appellant between her filing 

of a praecipe for a writ of summons on February 26, 2016, and her 

unsuccessful attempt at service with an expired writ on April 14, 2016, 

seventeen days after the expiration of the thirty-day period described in 

Pa.R.C.P. 401(a). Further, there is no indication that Appellee had actual

notice of Appellant’s filing. We therefore cannot conclude the court erred or 

abused its discretion in determining that Appellant had not established a goodfaith effort to effectuate service.

Appellant’s second argument suggests the grant of summary judgment 

violates the coordinate jurisdiction rule. The coordinate jurisdiction rule 

stands for the proposition that “[o]rdinarily, a trial judge should not place 

himself in the position to overrule a decision by another judge of the same 

court in the same case.” Salerno v. Phila. Newspapers, Inc., 546 A.2d 

1168, 1170 (Pa. Super. 1988). Appellant relies on Commonwealth v. Starr, 

664 A.2d 1326, 1331 (Pa. 1995), and Baker v. Morjon, Inc., 574 A.2d 676, 

677 (Pa. Super. 1990). 
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“Where the motions differ in kind, as preliminary objections differ from 

motions for judgment on the pleadings, which differ from motions for 

summary judgment, a judge ruling on a later motion is not precluded from 

granting relief although another judge has denied an earlier motion.” Goldey 

v. Trustees of the Univ. of Pa., 675 A.2d 264, 267 (Pa. 1996). Conversely, 

the Goldey decision establishes that “a later motion should not be entertained 

or granted when a motion of the same kind has previously been denied, unless 

intervening changes in the facts or the law clearly warrant a new look at the 

question.” Id. (emphasis in original). Here, common legal questions

permeated both Appellee’s motion for judgment on the pleadings and motion 

for summary judgment. However, the court was presented with Appellant’s 

failure to produce any evidence of record to establish good-faith efforts. 

Conversely, when addressing the motion for judgment on the pleadings, the 

court was only able to review the pleadings of the parties. This distinction is 

sufficient to establish that the motions were of a different kind. The trial court 

did not violate the coordinate jurisdiction rule. 

Accordingly, as we discern no error in the trial court’s conclusions and 

find no fault with the trial court’s disparate treatment of Appellee’s motion for 

judgment on the pleadings and motion for summary judgment, we affirm the 

trial court’s order.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/19