J-S47016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TODD PHILLIPS 

Appellant

v.

TRIPLE G. FARMS, INC., D/B/A 

FOXCHASE GOLF CLUB; DOUGLAS S. 

GRAYBILL AND SUSAN A. GRAYBILL, 

EXECUTORS OF THE ESTATE OF 

IRVIN G. GRAYBILL AND DOUGLAS 

S. GRAYBILL, D/B/A TRIPLE G 

FARMS; AND GREGORY DISSINGER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 514 MDA 2019

Appeal from the Order Entered March 11, 2019

In the Court of Common Pleas of Lancaster County Civil Division at 

No(s): CI-17-04051

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

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 22, 2019

Appellant Todd Phillips appeals from the order sustaining the preliminary 

objections filed by Appellees Triple G. Farms, Inc., doing business as Foxchase 

Golf Club, Douglas S. Graybill and Susan A. Graybill, as executors of the estate 

of Irwin G. Graybill and Douglas S. Graybill, doing business as Triple G. Farms, 

Inc. (collectively, Foxchase), and Gregory Dissinger.1 Appellant contends that 

the trial court erred in dismissing his suit because he made a good faith effort 

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1 We collectively refer to Foxchase and Mr. Dissinger as Appellees.
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to serve the writ of summons and had no intention to stall the judicial process. 

We affirm.

We state the facts according to Appellant’s complaint. On May 8, 2015, 

Mr. Dissinger was playing golf at Foxchase Golf Club, owned and operated by

Foxchase. That same day, Appellant was also playing golf. Appellant alleged 

that Mr. Dissinger “violated the rules of golf by failing to wait until [Appellee] 

had cleared the green before hitting his golf ball from the tee.” R.R. at 16a.2 

Appellant claims that as a result, Mr. Dissinger’s ball struck Appellant. Id. 

Specifically, Appellant claimed Foxchase was negligent by, among other 

things, “permitting golfers to hit golf balls while others were still on the 

fairway.” Id. at 17a-20a. Appellant alleged Foxchase failed “to provide 

marshals for the tournament” who would have enforced the rules of golf. Id. 

Appellant also sued Mr. Dissinger for negligence because, by failing to “abide 

by the rules of golf,” Mr. Dissinger hit a golf ball into Appellant. Id. at 21a22a. As a result, Appellant claimed he suffered a broken leg. 

On May 21, 2015, Appellant’s counsel notified Foxchase and advised 

Foxchase that they should “communicate with [their] insurance carrier 

immediately so that we may discuss settlement negotiations.” Id. at 124a. 

On June 2, 2015, Foxchase’s insurer sent a letter to Appellant’s counsel 

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2 We cite to the reproduced record for the parties’ convenience.
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acknowledging counsel’s representation and requesting additional information 

for its investigation. Id. at 120a.

On April 27, 2017, shortly before the statute of limitations expired, 

Appellant filed a writ of summons and requested that the prothonotary forward 

the writ to the sheriff. Id. at 2a. The statute of limitations expired on May 8, 

2017. The record reflects no activity until December 4, 2017, when Appellant 

filed a praecipe to reissue the writ of summons, which again asked the 

prothonotary to forward the writ to the sheriff for service. Id. at 4a. The 

sheriff filed its return of service on December 27, 2017. Id. at 6a. 

Subsequently, Dissinger’s insurer sent two letters, dated January 9 and 

February 1, 2018, discussing its ongoing investigation and determination that 

it would not pay Appellant. Id. at 121a-22a.

Appellant ultimately filed his complaint on September 13, 2018. Id. at 

12a-26a. On September 19, 2018, Mr. Dissinger filed preliminary objections 

objecting to Appellant’s writ because it was untimely served. On September 

27, 2018, Foxchase filed preliminary objections, as well, generally 

incorporating Mr. Dissinger’s preliminary objections by reference. Appellant 

filed a response in opposition and the trial court held oral argument on 

February 28, 2019. 
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On March 11, 2019, the trial court sustained Appellees’ preliminary 

objections and dismissed Appellant’s complaint with prejudice.3 Appellant 

timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Appellant raises the following issues:

[1.] Whether the trial court erred in sustaining [Appellees’] 

preliminary objections based on insufficient service of the writ of 

summons.

[2.] Whether the trial court erred in sustaining [Appellees’] 

preliminary objections where [Appellees] have failed to establish 

prejudice from the insufficient service.

Appellant’s Brief at 3.

We summarize the arguments in support of both of Appellant’s issues

together. Initially, Appellant argues that he served Appellees in good faith. 

Id. at 8. He maintains that because he “has not demonstrated an intent to 

stall the judicial machinery,” and has complied with the rules of civil 

procedure, the trial court should not have dismissed his complaint. Id. 

Appellant contends that when he filed the writ of summons on April 27, 2017, 

the writ instructed the prothonotary to forward the writ to the Lancaster 

County Sheriff’s office for service on Appellees. Id. at 8-9. According to 

Appellant, the writ was never forwarded to the sheriff and he never received 

notice that service was incomplete. Id. at 9. Appellant adds that because he 

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3 The opinion and order, dated March 8, 2019, was served on March 11, 2019.
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“maintained communications and contact with” Appellees, he provided “notice 

of the action,” and thus, Appellees suffered no prejudice. Id. at 9, 11-12. 

In Am. Interior Const. & Blinds Inc. v. Benjamin’s Desk, LLC, 206 

A.3d 509 (Pa. Super. 2019), this Court stated that “[o]ur standard of review 

of an order of the trial court overruling or 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.” Benjamin’s 

Desk, 306 A.3d at 512.

By way of guidance, Pennsylvania Rule of Civil Procedure 405 addresses 

non-service of original process:

(a) When service of original process has been made the sheriff or 

other person making service shall make a return of service 

forthwith. If service has not been made and the writ has not been 

reissued or the complaint reinstated, a return of no service shall 

be made upon the expiration of the period allowed for service.

* * *

(e) The return of service or of no service shall be filed with the 

prothonotary.

* * *

(g) The sheriff upon filing a return of service or of no service shall 

notify by ordinary mail the party requesting service to be made 

that service has or has not been made upon a named party.
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Pa.R.C.P. 405(a), (e), (g).4 In other words, notice of service or non-service 

must be promptly filed. Id.; see also Pa.R.C.P. 401 (stating that original 

process must be served within thirty days after issuance of the writ).

In resolving the question of proper service, the Benjamin’s Desk Court 

summarized the two cases of McCreesh v. City of Phila., 888 A.2d 664 (Pa. 

2005), and Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), as follows:

In McCreesh . . . , the plaintiff filed a timely praecipe to issue a 

writ of summons against Philadelphia. The plaintiff mailed the writ 

of summons via certified mail to Philadelphia’s Law Department. . 

. . In pertinent part, Philadelphia filed preliminary objections 

asserting that delivery of the writ by certified mail in August 2002 

did not comply with Pa.R.C.P. 400.1, which requires original 

process in actions commenced in Philadelphia to be served by 

either the sheriff or a competent adult. . . . 

The Pennsylvania Supreme Court granted review to resolve 

inconsistent holdings by the intermediate appellate courts, which 

sometimes dismissed 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 with the rules. After reviewing the conflicting caselaw, the 

McCreesh Court held that the Commonwealth Court’s holding was

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.

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4 As the Commonwealth Court observed, “[p]roper service is not presumed; 

rather, the return of service itself must demonstrate that the service was 

made in conformity with the Pennsylvania Rules of Civil Procedure.” City of 

Phila. v. Berman, 863 A.2d 156, 160 (Pa. Cmwlth. 2004) (citation omitted).
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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 . . . 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.

Benjamin’s Desk, 206 A.3d at 513-14 (citations and quotation marks 

omitted).

Nonetheless, the McCreesh Court imposed an evidentiary burden on 

the plaintiff:

We subtly altered our holding in Lamp in Farinacci [v. Beaver 

Co. Indus. Dev. Auth., 511 A.2d 757 (Pa. 1986)], requiring 

plaintiffs to demonstrate a good-faith effort to effectuate notice of 

commencement of the action. In announcing this refinement to 

the Lamp rule, we acknowledged that the good faith requirement 

is not apparent from a reading of the rule itself, but rather, 

satisfied the stated purpose of our decision in Lamp which was to 

avoid the situation where a plaintiff can retain exclusive control 

over litigation by not making a good faith effort to notify the 

defendant. We held that determining whether a plaintiff 

acted in good faith lies within the sound discretion of the 

trial court. Therefore, noting that plaintiffs are required to 

comply with local practice to ensure, insofar as they are able, 

prompt service of process, we affirmed the trial court’s decision to 

dismiss the complaint where the plaintiff failed to deliver the writ 

to the sheriff as required by local practice and consequently 

delayed service upon the defendant for over a month.

McCreesh, 888 A.2d at 672 (citations omitted and some formatting altered). 

In sum, the burden is on the plaintiff to make “a good faith effort to effectuate 

service.” Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. 

Super. 2007); accord McCreesh, 888 A.2d at 672. Communication between 
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a plaintiff and an insurance adjuster, however, does not serve “as a substitute 

for actual service of process.” Ferrara v. Hoover, 636 A.2d 1151, 1153 (Pa. 

Super. 1994) (holding, “We find no merit in the contention communication 

between appellant and appellees’ insurance adjuster serves as a substitute for 

actual service of process.”); accord Moses v. T.N.T. Red Star Exp., 725 

A.2d 792, 798 (Pa. Super. 1999).

In determining whether the plaintiff acted in good faith, the Englert

Court 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 of the action may 

constitute a lack of good faith on the part of the plaintiff.

Although 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 [to effectuate service] were 

reasonable.

Englert, 932 A.2d at 124-25 (citations omitted and some formatting altered). 

For example, in Ferrara, the plaintiff filed a writ of summons but it was 

never served on the defendants. Ferrara, 636 A.2d at 1151. The plaintiff 

ultimately reissued the writ and served it six months later, which was after 

the statute of limitations had expired. Id. The defendants succeeded in 

dismissing the lawsuit on the basis of untimely service. Id. at 1152.
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The Ferrara plaintiff appealed, arguing that when he initially filed the 

writ, he assumed “the prothonotary would, or did forward the writ to the 

sheriff for service.” Id. The plaintiff asserted that because “either the 

prothonotary or sheriff” was at fault, the trial court erred in dismissing the 

lawsuit. Id. The plaintiff insisted he did not act in bad faith. Id. The Ferrara 

Court disagreed, holding that although the plaintiff’s “counsel did not actively 

attempt to thwart service of the writ, he also did not take any affirmative 

action to see that the writ was served and to put the defendant[s] on notice 

that an action had been filed against” them. Id.

Here, like the plaintiff in Ferrara, Appellant obtained the writ of 

summons on April 27, 2017, and purportedly instructed the prothonotary to 

forward the writ to the Lancaster County Sheriff’s office to serve the writ on 

Appellees. See id. at 1151. As with the Ferrara plaintiff, Appellant assumed 

the Lancaster County prothonotary would forward the writ to the sheriff for 

service.5 See id. Identical to Ferrara, Appellant “did not take any affirmative 

action to see that the writ was served” and put Appellees on notice of a 

lawsuit. See id. at 1152. Appellant knew or should have known that original 

process must be served within thirty days after issuance of the writ of 

summons. See Pa.R.C.P. 401; see also Ferrara, 636 A.2d at 1152. 

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5 The trial court has observed that the Lancaster County prothonotary does 

not forward writs to the sheriffs. Trial Ct. Op. at 7 n.3.
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Appellant should have, like the plaintiff in Ferrara, followed up upon not 

receiving a copy of any notice of service or non-service. See Ferrara, 636 

A.2d at 1152; see generally Pa.R.C.P. 405; Englert, 932 A.2d at 124-25. 

Instead, similar to the Ferrara plaintiff, the record establishes Appellant did 

not follow up until seven months later, when Appellant obtained a reissued 

writ on December 4, 2017. See Ferrara, 636 A.2d at 1151. Appellant, like 

the plaintiff in Ferrara, has not explained the lapse in time. 

Moreover, to the extent that Appellant argues Appellees had actual 

notice of the lawsuit, he is incorrect. Initially, Appellant’s counsel’s May 21, 

2015, and June 2, 2015 correspondence reflects the typical pre-litigation 

communications between an insurer and plaintiff’s counsel. See R.R. at 120a, 

124a. The May 21, 2015 letter to Foxchase from Appellant’s counsel suggests 

settlement and not a lawsuit. See id. at 124a. The June 2, 2015 letter merely 

advises Appellant’s counsel that Foxchase’s insurer is investigating the claim 

and requests counsel’s theory of liability. Id. Similar to Ferrara, such 

correspondence between Appellant and Appellees’ insurance adjuster does not 

serve “as a substitute for actual service of process.” See Ferrara, 636 A.2d 

at 1153; see also Benjamin’s Desk, 206 A.3d at 513-14. Indeed, Appellant 

had not even filed a writ at the time of the May 21 or June 2, 2015

correspondence.

Furthermore, the other two letters from Dissinger’s insurer, dated 

January 9 and February 1, 2018, post-date Appellant’s December 11, 2017 
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service of the writ. See R.R. at 121a-22a. Neither letter could establish 

Appellees, let alone Dissinger, had actual notice of Appellant’s lawsuit prior to 

the expiration of the statute of limitations. See Benjamin’s Desk, 206 A.3d 

at 513-14. For these reasons, because the trial court did not abuse its 

discretion, we affirm the order below.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/22/2019