J-A19026-19

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOYCE FOWLER DYE, 

Appellant

v.

PMH ENTERPRISE, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 247 EDA 2019

Appeal from the Order Entered, January 9, 2019,

in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): June Term, 2018-1238.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 13, 2019

Joyce Fowler Dye appeals from the order of the trial court sustaining 

preliminary objections and dismissing her amended complaint. The trial court 

dismissed her amended complaint, because, after repeated attempts, Ms. 

Dye’s counsel could not perfect service on Defendant, PMH Enterprise, LLC. 

That draconian result violates our precedents. Thus, we modify the order’s 

remedy to set aside the defective service of process; Ms. Dye’s amended 

complaint is not dismissed.

The underlying facts are largely irrelevant, because this appeal involves 

only a procedural matter. Briefly, Ms. Dye’s amended complaint alleges that

PMH used toxic substances to repair the roof of her office building. The 

summer sun overheated the chemicals, and fumes wafted into the building’s 
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ventilation ducts. Ms. Dye asserts that she breathed in the toxins and suffered

injuries to her throat and respiratory system.

Ms. Dye commenced this action on June 12, 2018 by filing a complaint 

against PMH. She listed the company’s address as 6040 Belfield Ave., 

Philadelphia, PA 19144. Ms. Dye’s attorney obtained that data from the 

company’s website, an online phonebook, and a Freedom of Information Act 

Response from the United States Postal Service. See Affidavit of Plaintiff’s 

Counsel, 10/1/18, at 1. PMH’s president agreed that was his company’s

address.1 See Affidavit of Donald Pinkney, 11/10/18, at 1. The president 

averred that the 6040 Belfield Ave. “office is open every business day, except 

during those times that its members are at jobsites.” Id. 

Ms. Dye provided that address to a process server. The server tried to

perfect service on PMH at:

1. 1:44 pm on Wednesday, August 1, 2018; 

2. 10:33 am on Thursday, August 2, 2018; 

3. 2:08 pm on Friday, August 3, 2018; and 

4. 9:10 am on Monday, August 6, 2018.

See Affidavit of James Davis, 8/8/18, at 1. Despite those four attempts during 

business hours, the process server reported that PMH kept its office shuttered. 

“The business was closed, and the metal gates were down and padlocked 

during all attempts. There were no neighbors to confirm with, and the 

____________________________________________

1 According to PMH, it still is. See https://www.pmhenterprisellc.com/home

(last visited 8/8/19).
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property is surrounded by vacant buildings, and storage and parking lots.” 

Id.

A week after service failed, PMH filed preliminary objections to Ms. Dye’s 

complaint on several grounds, including that service of process was defective. 

Despite not being served, PMH was able to attach a “true and correct copy of 

[Ms. Dye’s] complaint . . . as Exhibit A” to its preliminary objections, because 

plaintiff’s counsel previously e-mailed it to PMH’s attorney. PMH’s Preliminary 

Objections, 8/15/18, at 1. PMH also acknowledged the process server’s four 

unsuccessful service attempts. Id. at 2. PMH argued that improper service 

deprived the trial court of jurisdiction and sought the dismissal of Ms. Dye’s 

complaint.

Ms. Dye rendered those preliminary objections moot a week later when 

she filed an amended complaint.2 After a month-and-a-half, Ms. Dye moved 

the trial court for permission to make alternative service on PMH. The court 

granted her motion in an October 4, 2018 Order, which set the parameters 

for perfecting alternative service. The trial court permitted Ms. Dye “to serve 

the Civil Complaint by regular mail to the last known address and by posting 

same on the premises at 6040 Belfield Ave., Philadelphia, PA 19144.” Trial 

Court Order, 10/4/18, at 1.

The following week, “nearly two months after [Ms. Dye] filed her 

Amended Complaint, [she] mailed a copy of the Amended Complaint to 

____________________________________________

2 See Pennsylvania Rule of Civil Procedure 1028(c)(1).
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[PMH’s] last known address by regular mail without first reinstating the 

Amended Complaint.” Trial Court Opinion, 2/11/19, at 2. Next, she reinstated 

her amended complaint with the Office of Judicial Records of Philadelphia 

County. Two days later, the process server posted the amended complaint at 

the 6040 Belfield Ave. office of PMH. However, Ms. Dye “did not mail a copy 

of the reinstated Amended Complaint to [PMH’s] last known address by 

regular mail, as required by the October 4, 2018 order granting alternative 

service.” Id. (emphasis in original).

PMH filed a new set of preliminary objections on November 15, 2018

and attached its president’s affidavit. He averred PMH “has not received a 

copy of [Ms.] Dye’s Amended Complaint in the mail.” Affidavit of Donald 

Pinkney, 11/10/18, at 1. The trial court sustained the preliminary objections

on December 10, 2018 and granted PMH the relief it sought – namely, 

dismissal of Ms. Dye’s amended complaint.

Ms. Dye sought reconsideration, which the trial court denied. This 

timely appeal followed. Although the trial court did not order Ms. Dye to 

comply with Pennsylvania Rule of Appellate Procedure 1925(b), it issued a

Rule 1925(a) Opinion detailing its factual findings and legal conclusions.

Ms. Dye raises one issue on appeal: “Did the [trial court] commit an 

error of law when [it] dismissed [her] Amended Complaint upon [PMH’s]

Preliminary Objections for an alleged defect in service?” Dye’s Brief at 5. 

While accepting the trial court’s finding that all of her many service 

attempts were invalid, Ms. Dye argues that dismissing her entire case was an 
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erroneous remedy. She relies on several opinions of this Court to support her 

position.

PMH responds with an argument it did not make below. It asserts that 

Ms. Dye violated the rule in Lamp v. Heyman, 366 A.2d 882, 889 (Pa. 1976) 

(announcing, prospectively, that “a writ of summons [or complaint] 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.”). Specifically, PMH contends that Ms. Dye’s failed 

attempts at service were not a good-faith effort to satisfy the Lamp Rule.

PMH’s brief implies that the trial court found Ms. Dye in violation of 

Lamp, because it determined she did not make a good faith attempt to perfect 

service of process. PMH argues that this Court must defer to that ruling, 

because it is fact-sensitive. It claims that:

Whether a plaintiff made a good faith effort to effectuate 

service within the period of time required by Pennsylvania 

law is a fact-based inquiry that courts make on a case-bycase basis . . . As such, [Ms. Dye’s] request that this Court 

rule that the trial court can never exercise its discretion to 

dismiss a complaint for improper service plainly contradicts”

various appellate-court precedents. 

PMH’s Brief at 7. 

PMH has correctly stated our standard of review for a determination of

a bona fide effort at service or a lack thereof. This “is a factual matter within 

[the trial court’s] sound discretion.” Englert v. Fazio Mechanical Services, 

Inc., 932 A.2d 122, (Pa. Super. 2007). However, PMH did not assert a Lamp
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Rule violation in its preliminary objections. Moreover, its implication that the 

trial court found Ms. Dye in violation of the Lamp Rule is troublesome, 

because the trial court made no such finding.

Such a finding would have required the trial court to have concluded

that Ms. Dye (1) intentionally delayed the service of process to stall the trial 

court’s proceedings or (2) that lack of perfected service prejudiced PMH.

3

 

Indeed, plaintiff intent and defendant prejudice are the twin touchstones of 

the Lamp Rule:

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 [v. Franklin, 575 A.2d 914 (Pa. Super. 

1990)] 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 v. City of Philadelphia, 888 A.2d 664, 674 (Pa. 2005). 

PMH’s preliminary objections claimed no prejudice, no lack of notice, 

and no intent by Ms. Dye to stall the judicial machinery. In fact, when this 

Court asked at oral argument what prejudice PMH suffered, its counsel stated 

that his client was not making a prejudice argument.

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3 PMH had actual notice of this lawsuit soon after Ms. Dye filed it, because her 

lawyer e-mailed its attorney a copy of the original complaint. “Actual notice 

has been defined as notice expressly and actually given, and brought home to 

the party directly.” Commonwealth v. Crockford, 660 A.2d 1326, 1330 

(Pa. Super. 1995). If PMH had not received actual notice, it likely would not 

have been able to file its original preliminary objections as early as it did.
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The same was true in the trial court. Instead of arguing that Ms. Dye 

had prejudiced PMH or intentionally violated her duty to prosecute her case in 

good faith, PMH contended that that court lacked jurisdiction, as a matter of 

law, due to the technicalities of service. See PMH’s Memorandum of Law in 

Support of Preliminary Objections, 11/15/18, at 3 – 4. The company’s 

argument was one paragraph:

[Ms. Dye] never mailed [a reinstated copy of] the

Amended Complaint to PMH and thereby failed to comply 

with [the trial court’s] order setting forth the method of 

alternative service that must be followed. See Exs. D, F, 

and G [of 11/15/18 Preliminary Objections]. In addition to 

failing to comply with [the trial court’s] Order on alternative 

service, [Ms. Dye] has otherwise failed to comply with the 

service requirements of the applicable Rules of Civil 

Procedure related to service of original process and her 

failure to do so in this instance is fatal to her claims against 

PMH. Since Plaintiff has not properly served process on 

PMH, PMH is not within [the trial court’s] jurisdiction and the 

claims asserted against it must be dismissed.

Id. at 4 – 5. Noticeably absent is any reference to Lamp, its progeny, and

Ms. Dye’s supposed lack of a good-faith in attempting to perfect service.

The trial court accepted PMH’s legal argument in full and adopted the 

company’s proposed remedy. It “sustained [PMH’s] Preliminary Objections 

because [Ms. Dye] improperly served her Amended Complaint upon [PMH] 

and, as a result, the trial court did not have personal jurisdiction over [PMH].” 

Trial Court Opinion, 2/11/19, at 4. The court opined:

following the reinstatement of the Amended Complaint on 

October 24, 2018, [Ms. Dye] posted a copy of the reinstated 

Amended Complaint at [PMH’s] Office on October 26, 2018. 

But, [she] never mailed a copy of the reinstated Amended 
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Complaint to [PMH’s] last known address by regular mail as 

required by the October 5, 2018 order granting alternative 

service. [Because Ms. Dye] failed to comply with the [trial 

court’s] October 4, 2018 Alternative Service Order – that is, 

by both posting it and sending it by regular mail – service 

was invalid, and the trial court lacked personal jurisdiction 

over the Defendant. As a result, the trial court . . . sustained 

[PMH’s] Preliminary Objections and dismissed [Ms. Dye’s] 

Amended Complaint.

Id. at 4 – 5 (emphasis in original)

The trial court did not apply the Lamp Rule. Hence, PMH’s reliance on 

Lamp and its progeny’s abuse-of-discretion standard of review is misplaced. 

Additionally, the trial court never made any findings of fact. Relying

upon the pleadings and paper record, the trial court made legal interpretations 

of the Rules of Civil Procedure. Hence, we face a question of law. As with all 

legal questions, “our scope of review is plenary, and our standard of review is 

de novo.” Kessock v. Conestoga Title Ins. Co., 194 A.3d 1046, 1056 (Pa. 

Super. 2018).

In Pennsylvania, the remedy for failure to perfect service of process is 

settled. We have long held that dismissal of a plaintiff’s complaint to punish 

her for improper service is legal error:

“The suit is not dead merely because the complaint 

has not been served within thirty days of its filing.” 

Lauterbach v. Lauterbach, 202 Pa. Super. 260, 195 A.2d 

159 (Pa. Super. 1963). Under Pa.R.C.P. 401(b), the 

complaint may be reinstated without requiring that the 

appellants commence a new lawsuit. Sherry v. TrexlerHaines Gas, Inc., --- Pa. Super. ---, 541 A.2d 341 (Pa. 

Super. 1988). The appellants properly followed all the 

necessary procedures in keeping their cause of action alive. 

The appellants filed the praecipe for writ of summons and 

request for service on October 15, 1985. In so doing, they 
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tolled the applicable statute of limitations, which would not 

have run until two years from that date. [Wible v. 

Apanowicz, 452 A.2d 545 (Pa. Super. 1982)]. The failure 

to complete service does not affect the appellants’ rights to 

reinstate the complaint within the statutory period.[4] Rule 

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4 “Statutory period” does not refer the original statute of limitations. Rather, 

the phrase as used here means the additional period that a plaintiff has to 

prefect service following the commencement of a lawsuit. The Pennsylvania 

Rules of Civil Procedure provide that a service-of-process period is the same 

length as the original statute of limitations. That period may be extended 

indefinitely, if service cannot be perfected upon an allusive defendant. 

As the Lamp Court explained:

filing a praecipe to commence an action is sufficient to toll 

the running of the statute of limitations and that, although 

Pa.R.C.P. [401(a)] provides that a writ shall be served 

within thirty days after issuance or filing, it may, pursuant 

to Pa.R.C.P. [401(b)(1)-(2)], be reissued at any time after 

the original issuance during a period equivalent to that 

permitted by the applicable statute of limitations for 

the commencement of the action; further, each valid 

reissuance gives rise to a new, equivalent period during 

which the writ may again be reissued. 

Lamp v. Heyman, 366 A.2d 882, 885-886 (Pa. 1976) (emphasis added). 

However, some plaintiff’s (like Ms. Lamp) were exploiting the Rules of Civil 

Procedure.

“We note that it has become a relatively common practice . . . for 

attorneys to file a praecipe with the prothonotary to toll the statute of 

limitations but then, whether because settlement negotiations are in progress 

or because more time is needed to prepare the case, to delay or prevent 

service upon the defendant.” Id. at 886. A crafty lawyer could file a writ and 

direct the prothonotary not to forward it to the sheriff for service. When the 

writ expired, the lawyer would simply praecipe for its reinstatement and again 

ask that the prothonotary to withhold it from the sheriff.

No longer willing to permit such gamesmanship, the Supreme Court 

announced the Lamp Rule – “a writ of summons shall remain effective to

commence an action only if the plaintiff then refrains from a course of conduct 
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401 clearly provides that a complaint which is not served 

within thirty (30) days of issuance may be reinstated. 

Although service made after the expiration of the thirty (30) 

days may be considered void, failure to serve the complaint 

within that period does not render the complaint a nullity. 

[Cannon v. Avco Corporation, 323 A.2d 290 (Pa. Super. 

1974). See Bowman v. Mattei, 455 A.2d 714 (Pa. Super. 

1983). Based upon the foregoing, we conclude that the trial 

court erred in granting appellee’s motion to strike the 

complaint on the basis that appellants failed to effectuate 

service.

Fox v. Thompson, 546 A.2d 1146, 1148–49 (Pa. Super. 1988) (footnote 

omitted). 

Here, Ms. Dye’s amended complaint alleges one count of negligence by 

PMH resulting in bodily injury. The statute of limitations for that cause of 

action is two years. See 42 Pa.C.S.A. § 5524(2). Ms. Dye commenced suit 

by filing a complaint against PMH on June 12, 2018, and she had two years 

from that date (June 12, 2020) to prefect service on the defendant, provided 

she made good faith efforts under Lamp to do so. Thus, she is clearly still 

within the time period to perfect her service upon PMH.

Because PMH did not seek and the trial court did not make a factual 

finding that Ms. Dye’s attempted, defective service was not in good faith, a 

“more appropriate remedy would have been to set aside the service.” 

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which serves to stall in its tracks the legal machinery he has just set in 

motion.” Id. at 889. In other words, a plaintiff must make a good-faith effort 

to server process within the relevant time period.
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Frycklund v. Way, 599 A.2d 1333, 1333 (Pa. Super. 1991). Accordingly, we 

now modify5the appealed from order as follows:

AND NOW, this 10th Day of December, 2018, upon 

consideration of Defendant PMH Enterprise, LLC’s 

Preliminary Objections, it is hereby ORDERED that the 

Defendant PMH Enterprise, LLC’s first preliminary objection

is SUSTAINED. It is further ORDERED that Plaintiff Joyce 

Fowler Dye’s service of process is set aside as improper. 

Plaintiff Dye may file a praecipe in the Office of Judicial 

Records of Philadelphia County to reinstate her Amended 

Complaint and thereafter perfect service upon PMH 

Enterprise, LLC, under the October 4, 2018 Order of the 

Court of Common Pleas of Philadelphia County.

Order affirmed as modified. Case remanded for further proceedings 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/19

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5 “An appellate court may . . . modify . . . any order brought before it on 

appeal . . . .” 42 Pa.C.S.A. § 706.