Melendez, F. v. The Good Samaritan Hospital ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FERNANDO MELENDEZ, AS : IN THE SUPERIOR COURT OF
ADMINISTRATOR OF THE ESTATE OF : PENNSYLVANIA
DAMARIS REYES, DECEASED
Appellant
v.
: No. 1496 MDA 2015
THE GOOD SAMARITAN HOSPITAL
OF LEBANON, PENNSYLVANIA;
LEBANON EMERGENCY PHYSICIANS;
THE GOOD SAMARITAN HOSPITAL
Appeal from the Order Entered August 3, 2015
In the Court of Common Pleas of Lebanon County
Civil Division at No(s): 2014-01221
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
DISSENTING MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 08, 2017
Appellant's failure to properly commence the instant wrongful
death/survival action by effectuating service prior to the expiration of the
statute of limitations should not be excused or characterized as a "good faith
effort." Thus, although the esteemed Majority has offered a thoughtful
analysis, I respectfully dissent.
When considering a case where service is delayed beyond the statute
of limitations, our courts have read a "good faith" requirement in Pa.R.C.P.
* Former Justice specially assigned to the Superior Court.
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401, which governs the service of original process. See Lamp v. Heyman,
469 Pa. 465, 366 A.2d 882, 889 (1976). What constitutes a "good faith"
effort to serve legal process is a matter to be assessed on a case by case
basis. Moses v. T.N.T. Red Star Exp., 725 A.2d 792, 796 (Pa.Super.
1999). The determination of a good faith effort lies within the discretion of
the trial court. See McCreesh v. City of Philadelphia, 585 Pa. 211, 888
A.2d 664 (2005). 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. See Englert v.
Fazio Mechanical Services, 932 A.2d 122, 124-25 (Pa.Super. 2007). It is
unnecessary for the plaintiff's conduct to constitute bad faith or an overt
attempt to delay before Lamp will apply. Id. "Lack of knowledge, mistake
or misunderstanding does not toll the running of the statute of limitations."
Booher v. Olczak, 797 A.2d 342, 345 (Pa.Super. 2002). Further, it is the
plaintiff's burden to demonstrate that his efforts at service were reasonable.
See Bigansky v. Thomas Jefferson Univ. Hosp., 658 A.2d 423, 433
(Pa.Super. 1995).
Appellant, who was the plaintiff below, failed to demonstrate that his
efforts at service were reasonable. As the trial court determined, on July 3,
2014, Appellant's counsel filed a complaint; however, the complaint was
returned to counsel's office on the same day for reasons unknown. Although
the trial court's docket entries contain a notation entered on July 3, 2014,
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indicating the complaint had been returned, Appellant's counsel proffers that
he "discovered" the error on August 6, 2014, at which time he reinstated the
complaint. The sheriff then effectuated service on August 11, 2014, which
was beyond the statute of limitations.
In explaining why the complaint was initially returned to his office,
Appellant's counsel avers that one of his staff members may have
mistakenly attempted service via a private process service, and the staff
member then left his employment during the time period that counsel
believed service was being attempted.
Contrary to the Majority's conclusion, I find that Appellant did not
meet his burden of demonstrating a good faith effort in effectuating service.
Counsel is ultimately responsible for deadlines and must adequately
supervise his staff. Moreover, a review of the trial court's docket entries at a
reasonable time and in a reasonable manner would have revealed to counsel
that Appellant's complaint had been returned to his office on July 3, 2014.
Consequently, the trial court did not abuse its discretion in finding a
lack of good faith. As I would affirm the trial court's grant of the motion for
judgment of the pleadings in favor of Appellee, I respectfully dissent.
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