Wednesday, August 9, 2023

Pennsylvania Superior Court Reinstates Med Mal Claim That Had Been Dismissed Due to Service of Process Issues [Non-Precedential Decision]

In the case of Harrigan v. Forsythe, No. 1421 MDA 2021 (Pa. Super. June 30, 2023 Bowes, J., McCaffery, J., and Stevens, P.J.E.) (Mem. Op. by McCaffery, J.) [Non-precedential decision], the Pennsylvania Superior Court reinstated a medical malpractice claim that was dismissed by a trial court judge because the Plaintiff had failed to properly serve the Defendant either in a timely manner or through the use of a Sheriff.

In this split decision, the Superior Court majority, led by Judge Daniel McCaffery (who is currently running for Pennsylvania Supreme Court) agreed that, although the Plaintiff had properly failed to give notice to the defense about the case under the Rules pertaining to service, it was Judge McCaffery’s Opinion that Pennsylvania Courts have moved away from a “rigid compliance requirement” or a “mechanical approach” to the notice to the Defendant of the filing of a lawsuit, so long as the Plaintiffs make a good faith effort to notify Defendants of the legal action.

In his dissenting Opinion, Judge Correale Stevens stated that the majority’s holding went too far. Judge Stevens stated, “while I agree with the Majority that the rules should be interpreted ‘liberally,’ such liberal interpretation should not lead to a complete nullification of the rules.” 

In this case, the Plaintiff had served original process through the use of a private process server as opposed to a Sheriff. Also, that attempt at service was outside the two year statute of limitations. 

The trial court had sustained Preliminary Objections and dismissed the case after finding that the Plaintiff failed to produce any evidence showing that she fulfilled her legal duty to make a good faith effort to serve the Complaint.

Judge McCaffery noted that the Plaintiff had filed her Complaint within the two (2) year statute of limitations, had filed a Motion to Admit her Out-of-State Attorney, and also hired a private process server to complete service. 

Accordingly, Judge McCaffery found that the Plaintiff had provided actual, albeit defective, notice to the Defendant when she employed a private process server as opposed to the Sheriff.  Judge McCaffery pointed out that the Defendants do not allege that they never received the Complaint from the private process service. 

As such, Judge McCaffery stated that it was undeniable that the Defendants had been put on notice of the impending lawsuit and that, as such, they did not suffer any unfair surprise or prejudice.

As noted, the Superior Court reinstated this medical malpractice action that had been dismissed by the trial court.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stevens Dissenting Opinion can be viewed HERE.

Source: Article - “Pa. Superior Court Stresses Liberal Application of Service Rules in Reinstating Med Mal Lawsuit,” By Max Mitchell The Legal Intelligencer (July 5, 2023).

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