Monday, March 7, 2022

Court Rejects Plaintiff's Blaming COVID-19 Pandemic As a Reason for Failing to Complete Good Faith Efforts at Service

In the case of Bellan v. Penn Presbyterian Medical Center, 2022 Pa. Super. 32 (Pa. Super. Feb. 22, 2022 Bender, P.J.E., Murray, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s dismissal of a Plaintiff’s medical malpractice Complaint with prejudice based upon service of process issues.

According to the Opinion, the issue presented to the appellate court was whether the medical provider Defendant being closed for service for several months due to COVID, and, therefore not accepting service of process, equitably provided more time for the Plaintiff to serve the Complaint.  The Plaintiff asserted that these circumstances should be found to allow the Complaint to remain effective despite the fact that the Complaint was not reinstated, where the Plaintiff allegedly previously made a good faith attempt at service and where the medical provider Defendant allegedly suffered no prejudice from the timing of the service.

The court noted that, it was undisputed that the Plaintiff failed to serve the Defendant within thirty (30) days of filing the Complaint and did not attempt to reinstate the Complaint.  

Approximately five (5) months after filing the Complaint, the Plaintiff attempted to serve the Defendant by email. It was emphasized by the Defendant that the Plaintiff never sought to reinstate the Complaint or file any Affidavit of No-Service. As such, the Defendant filed Preliminary Objections regarding lack of service.

The Plaintiff responded by arguing, in part, that the Plaintiff had previously attempted to serve the Defendant at its general counsel’s office but was unsuccessful. According to the Plaintiff, the process server was informed that the workers at the general counsel’s office would not return until after 2020. 

The Plaintiff argued that the Defendant should have had someone left in charge to accept service or provide instructions to those attempting service. The Plaintiff additionally asserted that the Defendant has not suffered prejudice with regards to service.

After providing a detailed analysis of the current status of Pennsylvania law regarding proper service of original process, including the Pennsylvania Supreme Court’s recent decision in the case of Gussom v. Teagle, 247 A.3d 1046 (Pa. 2021), the Pennsylvania Superior Court emphasized that, although the Plaintiff timely commenced the lawsuit, the Plaintiff did not serve the Defendant within the thirty (30) days of filing the Complaint and did not seek to reinstate the Complaint as required by the Rules of Civil Procedure to maintain the validity of the Complaint. [Click this LINK to view the Tort Talk Blog post on the Gussom case and to access a link to that Opinion.].

The court in this Bellan case also emphasized that the record and docket confirmed that the Plaintiff took no action to serve the Defendant until the Plaintiff filed an Affidavit five (5) months after the filing of the Complaint claiming that the Defendant had accepted service via email on a date which was months after the statute of limitations had expired. 

In that email, an associate of the Plaintiff’s law firm contacted the defense counsel and informed them that the Plaintiff had unsuccessfully attempted to personal served the Complaint and inquired whether the Defendant’s attorney would accept the Complaint via the email. The response from a claims administrator at the office of defense counsel was that she was able to accept service by email or, in the alternative, was able to meet the Plaintiff’s process server on Wednesdays. Within an hour of the Plaintiff’s initial email, the claims administrator at the defense attorney’s office confirmed that she had accepted service of the Complaint on behalf of the Defendant.

The Superior Court agreed with the trial court that the record confirmed that the Plaintiff had not made good faith efforts to complete service.

With regards to the Plaintiff’s reference that they had attempted to complete personal service that was unsuccessful when the process server was informed by a front desk security guard at the general counsel’s office that no one would be working in the office until after 2020, the Superior Court found that the Plaintiff failed to explain why the Plaintiff neither filed an Affidavit of No-Service with the trial court or informed the trial court in any way that the Defendant had not been served with the Complaint, all of which was in violation of Pa. R.C.P. 405(a).

The Superior Court otherwise indicated that, after the Plaintiff’s first attempt at service was unsuccessful, the Plaintiff did not offer any evidence that he diligently made efforts to discover on how to serve the Defendant or provide any notice to the Defendant of the lawsuit.

The court otherwise indicated that the Plaintiff also did not seek permission from the trial court to use an alternative method of service pursuant to Pa. R.C.P. 430.

The court noted that the Plaintiff offered no explanation as to why the Plaintiff’s counsel could not have sent the email inquiry regarding service of process months earlier than the five (5) months after the Complaint was served that the email was sent. The court noted that, to the contrary, the Plaintiff’s counsel’s lack of due diligence was apparent in the case and the Plaintiff’s attorney’s “attempt to blame the COVID-19 pandemic as the cause of the lack of timely service is [was] misplaced.”

Moreover, the Superior Court noted that there was no evidence in the record to show that the Plaintiff’s actions gave the actual Defendant actual notice of the filing of the lawsuit in the timely manner. The court emphasized that the courts of Pennsylvania have never modified the Plaintiff’s duty to act diligently to serve notice of the commencement of a lawsuit so as not to undermine the policies that drive the statute of limitations.

Overall, the Superior Court agreed with the trial court that the Plaintiff had failed to produce evidence to show that the Plaintiff’s counsel had acted diligently in making a good faith effort to serve the actual Defendant with notice that the Plaintiff had filed a Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Source of Image:  Photo by Edgar Moran on

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