J-A05034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SMASH PA, INC., IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

LEHIGH VALLEY RESTAURANT GROUP, 

INC. AND BARLEY SNYDER, LLP,

Appellees No. 1811 EDA 2014

Appeal from the Order Entered May 28, 2014

In the Court of Common Pleas of Lehigh County

Civil Division at No(s): 2013-C-4389

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 14, 2015

Appellant, Smash PA, Inc. (“Smash”), appeals from the grant of 

preliminary objections and the dismissal of its action. We affirm.

Smash, a Pennsylvania corporation with its principal place of business 

in Berks County, Pennsylvania, filed suit on December 21, 2012, in 

Philadelphia County by writ of summons1against Appellees, Lehigh Valley 

Restaurant Group, Inc. (“LVRG”), a Pennsylvania corporation with its 

principal place of business in Lehigh County, Pennsylvania, and LVRG’s 

counsel, Barley Snyder, LLP (“Barley Snyder”), a Pennsylvania limited 

partnership with its principal office in Lancaster, Pennsylvania. Second 

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1

 The writ was filed two days before the expiration of the statute of 

limitations. N.T., 3/24/14, at 9.
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Amended Complaint, 7/8/13, at ¶¶ 2, 3, 5. Smash was established “for the 

sole purpose of engaging in the business of opening Smashburger 

Restaurants, as a franchisee of the company Smashburger, Inc.” Id. at ¶ 8. 

LVRG is a franchisee of Red Robin Gourmet Burgers, Inc. and operates 

multiple Red Robin Gourmet Burgers restaurants in south central 

Pennsylvania. Id. at ¶ 4; N.T., 3/24/14, at 4. LVRG and a former 

employee, James M. Mitich (“Mitich”), were embroiled in litigation beginning 

in October 20, 2010. The action was transferred to Lehigh County on 

December 4, 2013, as a result of preliminary objections to the original 

complaint. N.T., 3/24/14, at 6.

LVRG had employed Mitich since December 30, 1999, most recently as 

its president and chief operating officer. N.T., 3/24/14, at 4. Mitich’s 

employment agreement provided that Mitich could be terminated for cause, 

and it included a non-compete clause that prohibited Mitich from working for 

a restaurant similar to the Red Robin Gourmet Burgers Restaurants operated 

by LVRG within a fifty-mile radius for one year. Id. at 4–5; LVRG Status 

Conference Memorandum, 3/6/14, at 1. LVRG terminated Mitich effective 

July 26, 2010. N.T., 3/24/14, at 4–5; LVRG Status Conference 

Memorandum, 3/6/14, at 1. LVRG subsequently learned that Mitich had 

become associated with Smashburger, a restaurant concept that allegedly 

would compete with LVRG. On December 23, 2010, LVRG, through Barley 

Snyder, sent Edward Graefe, the chief executive officer of Smash, a letter 
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indicating that LVRG would pursue legal claims against Smashburger, Inc. if 

Smash continued its consulting relationship with Mitich. N.T., 3/24/14, at 5; 

Smash Status Conference Memorandum, 3/6/14, at 2. Shortly thereafter, 

Mr. Graefe responded that Mitich no longer was affiliated with Smash. N.T., 

3/24/14, at 5. “As a result of being wrongfully forced into ending its 

relationship with Mitich and, in turn, rescinding its agreements with 

Smashburger,” Smash was unable to open the planned Smashburger 

restaurants and thus, brought the underlying action against LVRG and its 

attorneys for tortious interference with contractual relationships and civil 

conspiracy. Smash Status Conference Memorandum, 3/6/14, at 2.

On January 18, 2013, copies of the writ of summons were delivered by 

courier to LVRG at its corporate headquarters in Lehigh County and to

Barley Snyder at its office in Lancaster County. N.T., 3/24/14, at 6. On 

January 23, 2013, Smash filed affidavits of service with the lower court. On 

March 18, 2013, following a case management conference on March 15, 

2013, the Philadelphia Common Pleas Court ordered Smash to file its 

complaint, which it mailed on April 19, 2013, alleging tortious interference 

with contractual relationships, defamation, invasion of privacy by false light, 

and civil conspiracy. Id. Each Appellee filed preliminary objections (“POs”) 

on May 9 and 10, 2013, respectively, averring, inter alia, that the writ of 

summons had been served via courier and messenger and had not been 
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served by “deputized service” by the Sheriffs of Lancaster and Lehigh 

Counties in accordance with Pa.R.C.P. 400.1.

On May 28, 2013, Smash filed a praecipe to reissue the writ of 

summons and an amended complaint withdrawing its cause of action for 

defamation. Appellees again filed POs on June 17, 2013. On July 8, 2013, 

Smash filed a second amended complaint withdrawing its cause of action for 

invasion of privacy and raising only two claims: tortious interference with 

contractual relations and civil conspiracy. Appellees filed the instant POs on 

July 26, 2013, asserting that because the original writ of summons and 

complaint had not been served properly when filed, and the amended 

complaint was not served until May 31, 2013, Smash’s claims were barred 

by the applicable two-year statutes of limitations.

On September 3, 2013, the Philadelphia Common Pleas Court 

sustained POs of Appellees as to venue only and transferred the case to 

Lehigh County, reserving all other POs for the Lehigh County Court of 

Common Pleas. Following the transfer, the trial court herein granted 

Appellees’ POs and struck the second amended complaint as untimely and 

improper. The propriety of this final order is the subject of our review.

Smash raises the following two issues on appeal to this Court:

1. In a claim alleging tortious interference with existing 

contractual relations, where (a) the Writ of Summons 

against the Defendants Below was filed within the 

applicable statute of limitations, (b) Smash PA made a 

good faith, albeit inadequate under the applicable Rules of 

Civil Procedure, attempt to serve the initiating pleading in 
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a timely manner, (b) Smash PA did, in fact, provide actual 

notice of the suit by hand delivery of the Writ of Summons 

to both Defendants Below within thirty (30) days of the 

issuance of the Writ, (c) the Defendants Below collectively 

participated in the matter by having their legal 

representative attend the initial scheduling conference 

after the Writ of Summons was delivered to them, (d) 

proper service of a Complaint was effectuated thereafter, 

and (e) no prejudice for the delayed proper service to 

either of the Defendants Below was claimed or found to be 

present by the court below, did the lower court err as a 

matter of law in granting the Preliminary Objections filed 

by each of the Defendants Below to the Second Amended 

Complaint filed by Smash PA and thereby dismissing all 

claims therein on the basis that proper service was not 

made within the statutorily allowed time period?

2. Where the controlling allegations contained in the Second 

Amended Complaint clearly stated that the law firm of 

Barley Snyder was acting for its own nefarious purpose as 

well as the improper purpose of its client, did the court 

below err as a matter of law when it dismissed Count II of 

the Second Amended Complaint (Conspiracy) on the basis 

of an unsupported, and unsupportable at this juncture in 

the proceedings, factual finding that the law firm Barley 

Snyder was acting solely as the agent of LVRG and was not 

acting in furtherance of its own unlawful motive when it 

sent the letter alleged to have been the basis of the 

tortious interference with a contract Smash PA had with a 

third party?

Smash’s Brief at 2–3 (verbatim).

Our standard of review of an order granting preliminary objections is 

to determine whether the trial court committed an error of law.

When considering the appropriateness of a ruling on preliminary 

objections, the appellate court must apply the same standard as 

the trial court.

Preliminary objections in the nature of a 

demurrer test the legal sufficiency of the complaint. 

When considering preliminary objections, all material 
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facts set forth in the challenged pleadings are 

admitted as true, as well as all inferences reasonably 

deducible therefrom. Preliminary objections which 

seek the dismissal of a cause of action should be 

sustained only in cases in which it is clear and free 

from doubt that the pleader will be unable to prove 

facts legally sufficient to establish the right to relief. 

If any doubt exists as to whether a demurrer should 

be sustained, it should be resolved in favor of 

overruling the preliminary objections.

Shafer Elec. & Const. v. Mantia, 67 A.3d 8, 10–11 (Pa. Super. 2013). 

“[A]ll material facts set forth in the complaint as well as all inferences 

reasonably deducible therefrom are admitted as true for the purpose of 

review.” Com., Office of Atty. Gen. ex rel. Corbett v. Locust Tp., 968 

A.2d 1263, 1269 (Pa. 2009).

Smash asserts that the original writ of summons in this matter, as 

filed on December 21, 2012, occurred before the statute of limitations on 

Smash’s actions had expired. Significantly, Smash acknowledges that its 

service of the original writ was deficient, but maintains that it made a 

“good-faith effort” to serve the original writ, “giving [Appellees] actual notice 

of the fact and nature of the action within thirty days of the date the original 

Writ was issued.” Smash’s Brief at 10. The crux of its argument is that 

because the writ was reissued and the complaint eventually was served 

properly on both Appellees, “the date of filing of this action relates back to 

the date the original Writ was issued,” which was December 21, 2012, and 

therefore, its claims were timely filed. Id.
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LVRG refers to Pa.R.C.P. 400.1 and emphasizes that service was 

required by a sheriff of Lehigh County. Here, Smash purported to serve the 

writ on LVRG by a non-deputized process server. Noting that it could not 

raise the service issue to the writ until the complaint was filed, LVRG 

contends that it preserved its argument regarding improper service when it 

filed its POs.2 Therefore, LVRG maintains that Smash failed to properly 

serve LVRG within the statute of limitations, and further, LVRG would be 

prejudiced by the allowance of this late assertion of claims. Thus, it argues 

the order granting POs should be affirmed.

Appellee Barley Snyder asserts that since the original process—the 

writ—was not properly served, Smash’s subsequent delivery of the complaint 

by mail also constituted improper service. Because Smash’s service of the 

writ was improper, Barley Snyder continues that Smash’s complaint would 

constitute the original process in this matter, and as such, it, likewise, was 

improperly served by mail. Thus, it similarly argues the order granting POs 

should be affirmed.

Here, the action was commenced in Philadelphia County, and the writ 

of summons was served on Appellees by courier. Pa.R.C.P. 400.1 sets forth 

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2

 LVRG thus distinguishes Korman Commercial Props. v. Furniture.com, 

LLC, 81 A.3d 97 (Pa. Super. 2013), and Cox v. Hott, 371 A.2d 921, 923 

(Pa. Super. 1977), where the failure to raise POs waived a challenge to 

improper service and validated the otherwise defective form of service. 

Here, by contrast, LVRG asserts that it timely objected to the complaint on 

the ground that the original writ was never properly served.
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provisions for service of original process for courts of the First Judicial 

District, which the rule defines as Philadelphia County. The Rule provides, in 

pertinent part, as follows:

Rule 400.1. Provisions for all Courts of the First Judicial 

District

(a) In an action commenced in the First Judicial District, 

original process may be served

(1) within the county by the sheriff or a competent 

adult, or

(2) in any other county by deputized service as 

provided by Rule 400(d) or by a competent 

adult forwarding the process to the sheriff of 

the county where service may be made.

Note: See Rule 76 for the definition of “competent adult”.

The First Judicial District is comprised of Philadelphia County.

Pa.R.C.P. 400.1. The rules of civil procedure define “competent adult” as 

“an individual eighteen years of age or older who is neither a party to the 

action nor an employee or a relative of a party.” Pa.R.C.P. 76.3 As 

Appellees were outside of Philadelphia County, Pa.R.C.P. 400.1(a)(2) is 

relevant, and thus, service by courier did not constitute proper service.

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3

 Pa.R.C.P. 400(b) defines the types of cases where service by a competent 

adult is permitted, as follows: a civil action requesting injunctive relief 

under Pa.R.C.P. 1531, perpetuation of testimony under Pa.R.C.P. 1532, or 

appointment of a receiver under Pa.R.C.P. 1533, a request for partition, and 

declaratory judgment when declaratory relief is the only relief sought.
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In granting POs in this case, the trial court underscored that the writs 

filed by Smash were to be served by original process and therefore, service 

was required to satisfy Pa.R.C.P. 400.1. “Service by courier did not 

constitute proper service.” Trial Court Opinion, 5/28/14, at 3. Further, “in 

that there was a defect in original process, the subsequent delivery of the 

Complaint by mail was improper service. More importantly, the defective 

service did not toll the statute of limitations.” Id.

We agree with the trial court. We find guidance in McCreesh v. City 

of Philadelphia, 888 A.2d 664 (Pa. 2005), wherein our Supreme Court 

revisited Pennsylvania case law regarding defects in service and the 

establishment of a “good faith” effort to effectuate service. McCreesh

relaxed the required strict adherence to service by allowing that where a 

plaintiff “has satisfied the purpose of the statute of limitations by supplying a 

defendant with actual notice,” noncompliance with the rules of civil 

procedure could be excused, although a plaintiff still bore the burden of 

establishing that it made a good-faith effort to serve process. Id. at 674. 

Before McCreesh, there was inconsistent application of Lamp v. Heyman, 

366 A.2d 882 (Pa. 1976), and Farinacci v. Beaver County Industrial 

Development Authority, 511 A.2d 757 (Pa. 1986), by trial and 

intermediate appellate courts. As McCreesh explained, some decisions 

required “plaintiffs to comply strictly” with civil procedural rules relating to 

service of process and local practice in order to satisfy the good faith 
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requirement, while others provided a more flexible approach “excusing 

plaintiffs’ initial procedurally defective service . . . .” McCreesh, 888 A.2d 

at 666. McCreesh adopted the more flexible approach when it was clear 

that the defendant had actual notice of the commencement of litigation and 

was not otherwise prejudiced. Id.

McCreesh reiterated that whether a plaintiff acted in good faith is “in 

the sound discretion of the trial court.” McCreesh, 888 A.2d at 672. 

Moreover, in McCreesh, the defective but good-faith service was 

accomplished before the expiration of the statute of limitations. In the 

instant case, Smash’s defective service was attempted after the statute of 

limitations expired. Thus, unlike in McCreesh, Appellees herein did not 

have actual notice, and allegedly were unaware, that litigation was 

commenced until after the statute of limitations expired.

We stated in Englert v. Fazio Mechanical Services, 932 A.2d 122 

(Pa. Super. 2007), that even when a lawsuit is commenced within the 

statutory limits, “the statute of limitations is tolled only if the plaintiff then 

makes a good faith effort to effectuate service.” Id. at 124. Moreover, 

“simple neglect and mistake,” or “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.” Id. at 124–125 (quoting Devine v. Hutt, 

863 A.2d 1160, 1168 (Pa. Super. 2004) (emphasis added)). “Lack of 

knowledge, mistake or misunderstanding does not toll the running of the 
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statute of limitations.” Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 

2002).

In Englert, this Court analyzed McCreesh’s holding that a plaintiff’s 

claims could be dismissed, inter alia, where the plaintiff’s failure to comply 

with the rules of civil procedure prejudiced the defendant. McCreesh, 888 

A.2d at 674. In Englert, as here, the plaintiffs did not provide the 

defendants with actual notice of the commencement of the action within the 

applicable statute of limitations. The defendants therein “had only notice 

that there was a potential for litigation, which is not the same and cannot 

suffice.” Englert, 932 A.2d at 127 (citing McCreesh, 888 A.2d at 224 

n.17).

As in Englert, we discern no abuse of discretion by the trial court in 

the case sub judice. The trial court explained:

Under Pa.R.C.P. 401(b)(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.” This rule of 

law is entirely applicable to these facts. Smash filed their Writ 

on December 21, 2012. That Writ was improperly served on 

January 18, 2013. Thereafter Smash filed their Complaint on 

April 19, 2013, this was also served improperly. Therein, 

original process had not been served. Furthermore, Smash did 

not reissue their Writ or correctly reinstate their complaint within 

the applicable Statute of Limitations period. Ultimately, it was 

not until May 28, 2013, that LVRG and Barley were properly 

served process under the Pa.R.C.P., which, consequently, came 
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after the Statute of Limitations had expired. As a result, 

jurisdiction did not attach to Defendants. See Cintas Corp. v. 

Lee’s Cleaning Servs, 700 A.2d 915, 917-918 (Pa. 1997) 

(without original process, a court lacks personal jurisdiction over 

a defendant and is powerless to enter judgment against it). 

Furthermore, “procedural rules relating to service of process 

must be strictly followed because jurisdiction of the person of the 

defendant cannot be obtained unless proper service is made.” 

Beglin v. Stratton, 816 A.2d 370, 373 (Pa.Cmwlth. 2003).

Despite this, Plaintiff argued that they made a good faith 

effort to serve legal process for the purposes of tolling the 

statute of limitations. The statute of limitations is tolled only if 

Plaintiff makes a good faith effort to effectuate service of process 

on the opposing party. Englert v. Fazio Mechanical Services, 

Inc., 932 A.2d 122 (Pa. Super. 2007). Again, under our facts, 

the Plaintiff did not timely reinstate the writ in order to preserve 

the action for purposes of the statute of limitations. 

Furthermore, process must be immediately and continually 

reissued until service is effectuated. Witherspoon v. City of 

Philadelphia, 768 A.2d 1079 (Pa. 2001). Ultimately, Plaintiff has 

failed in this aspect of their good faith effort.

Furthermore, as is mentioned above, the Defendants were 

not properly served under Pa.R.C.P. 400.1. Significantly, Smash 

commenced this action in Philadephia County against LVRG and 

Barley. However, LVRG is located and was served by courier in 

Lehigh County; while Barley is located and was served by courier 

in Lancaster County.

Trial Court Opinion, 5/28/14, at 4–5.

We discern no error or abuse of discretion in the trial court’s 

conclusion that Smash’s service of both the writs and complaint was 

defective, and defective service was attempted after the expiration of the 
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statute of limitations. Accordingly, there is no basis to disturb the trial 

court’s grant of preliminary objections and dismissal of the action.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015

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4

 Due to our resolution of this issue, we need not address Smash’s second 

issue regarding the viability of Count II in the second amended complaint.