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2022 PA Super 32

GERALD BELLAN

Appellant

v.

PENN PRESBYTERIAN MEDICAL CENTER :
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: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1118 EDA 2021

Appeal from the Order Entered May 3, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 200901301

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E. *

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 22, 2022

Gerald Bellan (“Appellant”) appeals from the order entered by the Court

of Common Pleas of Philadelphia County granting the preliminary objections

of Appellee Penn Presbyterian Medical Center (“P PMC ”) and dismissing

Appellant’s complaint with prejudice. After careful review, we affirm.

Appellant initiat ed this medical professional liability action to recover

damages for injuries that he alleged ly sustained while he was being treated

as a patient at PPMC. Appellant was a dmitted to PPMC on September 24,

2018 where he u nderwent a cervical laminectomy. Appellant alleged that,

upon his discharge from PPMC on November 28, 2018, he had developed

severe pressure wounds.

On November 28, 2018, Appellant was initially transferred from PPMC

to Merwick Care and Rehabilitation Center in Plainsboro, New Jersey.

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.J

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Appellant was transferred back to PPMC on two occasions on December 26,

2018 and January 4, 2019 to be treated for low hemoglobin and a gluteal

abscess, respectively.

On January 23, 2019, Appellant was again discharged fr om PPMC and

transferred to Kindred Hospital

– TCU (Transitional Care Unit)). However,

Appellant was transferred back to PPMC on two occasions on February 14,

2019 and May 8, 2019 to be treated for wound management and an abdominal

fistula repair, respecti vely.

Appellant asserts that the nursing staff at PPMC failed to adequately

treat his pressure wounds by turning and repositioning him every two hours

and failed to follow through with other necessary nursing inter ventions.

Appellant contends that his med ical records contain no documentation PPMC

nurses had performed necessary interventions for his pressure wounds.

On September 23, 2020, Appellant filed a complaint against PPMC

sounding in medical malpractice/negligence. It is undisputed that Appellant

fa iled to serve PPMC within thirty days of filing the complaint and did not

attempt to reinstate the complaint.

On January 20, 2 021, the trial court listed the matter for a case

management conference. On February 16, 2021, the trial court rescheduled

the case management conference at Appellant’s request for Appellant to

complete service. On February 17, 2021, Appellant filed an affidavit of

service , certifying that service had been made on PPMC via email on February

15, 2021

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On February 23, 2021, counsel for PPMC entered his appearance. On

March 2, 2021, PPMC filed preliminary objections, which included its claim

pursuant to Pa.R.C.P. 1028(a) (1) based on improper service of the complaint.

PPMC argued that Appellant did not serve PPMC in a timely manner between

the filing of its complaint on September 23, 2020 and his email service on

February 15, 2021. In addition, PPMC noted that Appellant did not seek to

reinstate the complaint or file an affidavit of no

- service

. On March 23, 2021, Ap pellant filed a response to PPMC’s preliminary

objections in which he conceded that he failed to ser v e PPMC with his

complaint within thirty days of its filin g . Appellant also acknowledged that he

did not make any attempt to reinstate the complaint , but a lleged that PPMC

did not suffer any prejudice as a result.

In addition, Appellant alleged that he had attempted to serve PPMC at

its General Counsel’s Office on September 29, 2020 but was unsuccessful

. Specifically, Appellant claimed that his process serv er was informed that

personnel would not return to the General Counsel’s Office until after 2020.

Appellant argued that PPMC failed to leave anyone in charge to accept service

or provide instructions to those attempting service. Appellant alleged that he

tried to find an agent of PPMC who would accept service of his complaint , but

was un able to do so

.

On May 3, 2021 , the trial court entered an order on the docket

sustaining PPMC’s preliminary objections as to service of process and

dismiss ing Appellant’s complaint. On May 5, 2021, Appellant filed a praecipeJ

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to reinstate the complaint, which the trial court did not address. On May 26,

2021, Appellant filed this timely appeal.

Appellant raises the following question for our review on appeal:

Whether Appe llee/Defendant being closed for service for several months due to COVID, and, therefore is not accepting service, equitably provides more time for Appellant/Plaintiff to serve the Complaint, allowing the Complaint to remain effective, where [Appellant] previously made a good faith attempt at service and Appellee/Defendant suff ered no prejudice from the timing of service.
Appellant’s Brief, at 3

. 1

In reviewing a trial court's order sustaining preliminary objections for

improper service of process,

[o]ur standard of review ... 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. When considering pr eliminary objections, all material 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.

J oyce v. Erie Ins. Exch. , 74 A.3d 157, 162 (Pa.Super. 2013) (citation

omitted).

_________________ __________ ______ ____ _______

1 W hile our Supreme Court declared a general, statewide judicial emergency relating to the COVID

- 19 pandemic , this designation expired on June 1, 2020

. Appellant infers that P PMC ’s Office of General Counsel, like many corporate offices at that time, was closed to the public as a result of the pandemic.J

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I t is well

- established that “ [s]ervice of process is a mechanism by which

a court obtains jurisdiction of a defendant, and therefore, the rules concerning

service of process must be strictly followed. Thus, improper service is not

merely a procedural defect tha t can be ignored when a defendant

subsequently learns of the action against him or her.” Lerner v. Lerner , 954

A.2d 1229, 1237 ( Pa.Super. 2008) (quoting Cintas Corp. v. Lee's Cleaning

Services, Inc. , 549 Pa. 84, 91, 700 A.2d 915, 917 (1997) (citing Sharp v.
Valley Forge Medical Ctr. and Heart Hosp. , Inc., 422 Pa. 124, 221 A.2d

185 (1966))

. Pennsylvania Rule of Civil Procedure 401 (a) provides that “[o]riginal

process shall be served within 30 days after the issuance of the writ or the

filing of the complain t.” Pa.R.C.P. 401 (a) . If the plaintiff is unable to serve

the complaint within the period prescribed by Rule 401(a), the plaintiff may

file a praecipe for the reissuance of the writ or reinstatement of the complaint

in order to continue its validity. Pa .R.C.P. 401(b). 2

Our courts have provided that “[s] o long as the plaintiff files her writ or

complaint before the expiration of the statute of limitations applicable to her

cause of action, the original filing, as well as any subsequent reissuances or

reinstatements, tolls the statute of limitation s.” Gussom v. Teagle ,

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2 Our rules of civil procedure also require a plaintiff to submit a return of service to the trial court averring that service of ori ginal process has been made. Pa.R.C.P. 405(a). In the event that service could not be made and the writ has not been reissued or the complaint reinstated, a plaintiff must make a “return of no service” upon the expiration of the period allowed for servic e. Pa.R.C.P. 405(a).J

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___Pa.___, 247 A.3d 1046, 1048 (2021) . The Supreme Court in Gussom

outlined the relevant precedent related to this topic:

“In the seminal case of Lamp v. Heyman , 469 Pa. 465, 366 A.2d 882 (1976), this Court sought to end abuses of process by plaintiffs who tolled the statute of limitations by filing a writ of summons, had the writ repeatedly reissued, and deliberately failed to notify the defendant of the pending litigatio n.” McCreesh

v. City of Philadelphia , 585 Pa. 211, 888 A.2d 664, 665 (2005). “This process, while technically compliant with the Rules of Civil Procedure, nonetheless defeated the purpose of the statute of limitations, which is to protect defendants from s tale claims.” Id

. Thus, in Lamp , this Court 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 mo tion.” Lamp , 366 A.2d at 889. This “ Lamp rule” applies equally to actions commenced by way of the filing of a complaint.

We refined the Lamp rule in Farinacci v. Beaver County Industrial Development Authority , 510 Pa. 589, 511 A.2d 757, 759 (1986), holding that “ Lamp requires of plaintiffs a good

- faith effort to effectuate notice of commencement of the action.” In addition, Farinacci clarified that: (1) the pla intiff carries an evidentiary burden of proving that she made a good

- faith effort to ensure that notice of the commencement of an action was served on the defendant, McCreesh , 888 A.2d at 672; and (2) “[i]n each case, where noncompliance with Lamp is alleg ed, the [trial] court must determine in its sound discretion whether a good

- faith effort to effectuate notice was made[,]” Farinacci , 511 A.2d at 759.

This Court's most recent decision in the Lamp

- line of cases is McCreesh , supra . In McCreesh , the Court ex pressed that when plaintiffs’ improper actions in serving original process put defendants on actual notice of the commencement of actions, trial courts should “dismiss only those claims where plaintiffs have demonstrated an intent to stall the judicial mac hinery or where plaintiffs’ failure to comply with the Rules of Civil Procedure has prejudiced defendant.” McCreesh , 888 A.2d at 674.

*** Although McCreesh made clear that a plaintiff could fulfill her good

- faith service mandate without strictly complying with the service rules as long as her efforts result ed in actual notice of theJ

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lawsuit to the defendant, like Farinacci , McCreesh did nothing to modify a pl aintiff's duty to act diligently to serve notice of the commencement of an action so as not to undermine the policies that drive the statute of limitations. Nor, for that matter, did McCreesh change the rule clarified in Farinacci that the plaintiff carrie s an evidentiary burden to prove that she made a good

- faith effort to effectuate service of process in a timely manner. To the contrary, as observed throughout this opinion, the McCreesh Court alluded to this evidentiary requirement. See id

. at 672 (“We subtly altered our holding in Lamp i n Farinacci , requiring plaintiffs to demonstrate ‘a good

- faith effort to effectuate notice of commencement of the action.’”).

In sum, Lamp and its progeny require a plaintiff to make a good

- faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that she met her good

- faith mandate. If a plaintiff presents credible evidence that she made this attempt at service, then she fulfills her requirement to prove good faith. If a plaintiff does not present such evidence, then she has failed to satisfy her evidentiary burden, regardless of whether her actions (or inaction) were intentional, unintentional, or otherwise. However, pursuant to McCreesh , a trial court should not punish a plaintiff by dismissing her complaint where she is able to establish that her improper but diligent attempts at service resulted in the defendant receiving actual notice of the commencement of the action, unless the plaintiff's failure to serve process properly evinced an intent to stall the judicial machinery

or otherwise prejudiced the defendant

. Gussom , 247 A.3d at 1048 , 1057

.

In Gussom , the plaintiff attempted to serve the defendant with her

timely complaint but learned the defendant had moved to Virginia. After filing

an affidavit of non

- service, the plaintiff took no further action until she filed a

praecipe to reinstate the complaint five weeks after the statute of limitations

expired. The Supreme Court found that the plaintiff failed to meet herJ

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evidentiary burden to show she made a good

- faith effort to timely effectuate

service. Id . at 1057

- 58.

The Supreme Court also n oted in Gussom there was no evidence to

show the plaintiff’s action or inaction gave the defendant actual notice of the

lawsuit in a timely manner. Id

. Thus , the Supreme Court upheld the trial

court’s order sustaining the defendant’s preliminary objection based on

improper service.

In the instant case, Appellant’s complaint alleged that
, during his

hospitalization at PPMC from on September 24, 2018 through November 28,

2018, he developed severe pressure wounds as a result of the neglig ence of

PPMC’s nursing staff. Thus , Appellant was subject to the two

- year statute of

limitations set forth in 42 Pa.C.S.A. § 5524(2) ( stating that actions must be

commenced within two years ... “to recover damages for injuries to the person

or for the death of an individual caused by the wrongful act or neglect or

unlawful violence or negligence of another”).

Appellant timely commenced th is action by filing a complaint on

September 23, 20 20

. However, Appellant did not serve PPMC within thirty

days of filing his complain t and did not seek to reinstate the complaint to

maintain its validity

. The trial court record and docket reflect that Appellant

took no action to serve PPMC until he fil ed an affidavit of service on February

17, 2021, claiming that PPMC had accepted service via email on February 15,

2021 , which was months after the statute of limitations had already expired.J

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We reject Appellant’s argument that he made a good faith effort to serve
PPMC with the complaint, solely based on his allegation that he made one

attempt to serve PPMC on September 29 , 20 20

. Appellant indicated that his

attempt to complete personal service was unsuccessful as the process server

was informed by front des k security in the General Counsel’s office that no

one would be working in the office until after 2020.

Appellant fails to explain why he neither filed a n affidavit of no

- service

with the trial court nor informed the trial court in any way that PPMC had not

been served with the complaint in violation of Pa.R.C.P. 405(a).

Moreover, a fter Appellant’s first attempt at service was unsuccessful,

Appellant offers no evidence that he diligently made an effort to discover how

to serve PPMC or provide any notice to PPMC of the action. Appellant did not

seek permission from the trial court to use an alternative method of service

pursuant to Pa.R.C.P. 430

. Instead, Appellant ’s counsel took no action until five months later on

February 15, 2021 when an associate i n his firm contact ed PPMC’s Office of

General Counsel through email , informed them that Appell ant had

unsuccessfully attempted to personally serve his complaint, and asked if

PPMC’s Office of General Counsel would accept his complaint via email.

Nancy VanTrieste, claims administrator at the Office of General Counsel,

promptly replied to this email and indicated that she was able to accept ser vice

by email or , in the alternative , was able to meet with Appellant’s process

server on Wednesdays. Within an hour of Appellant’s initial email, Ms.J

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VanTrieste confirmed that she accepted service of Appellant’s complaint on

behalf of PPMC.

Appellant offers no explanation as to why he could not have made this

inquiry months earlier. To the contrary, Appellant’s lack of due diligence is

apparent in this case, and his attempt to blame the COVID

- 19 pandemic as

the cause of the lack of timely service is misplaced.

Since there is no evidence of record to show that Appellant’s actions

gave PPMC actual notice of his action in a timely manner, Appellant cannot

rely on this Court’s decision in McCreesh to argue that he should be given an

equitable exception to the good

- faith service mandate without strictly

complying with the service rules

. As noted above, our courts have never

modified a plaintiff's duty to act diligently to serve notice of the

commencement of an action so as not to undermine the policies that drive the

statute of limitations. Gussom , supra . As a result, w e conclude that Appellant failed to produce evidence to

show he acted diligently in making a good

- faith effort to serve PPMC with

notice that he had filed his complaint. Accordingly, we affirm the trial court’s

decision to sustain PPMC’s preliminary objection with respect to Appellant’s

improper service of the complaint pursuant to Pa.R.C.P. 1028 (a)(1) and

dismissing Appellant’s complaint.

Order affirmed.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2022