Court Dismisses Complaint Due To Lack of Timely Service

In the case of Vargas v. United Modular Enter. LLC, No. 2022-05051 (C.P. Bucks Co. June 30, 2023 McMaster, J.), the Plaintiff filed an appeal challenging the trial court’s Order sustaining Preliminary Objections raised by the Defendants with regards to the Plaintiff’s failure to properly complete service of a Complaint.

The court trial court determined that the Plaintiff had failed to prove that he had made good faith efforts to timely serve the Defendants and, in this Rule 1925 Opinion, recommended that the Superior Court affirm the trial court's Order.

According to the Opinion, this case arose out of a motor vehicle accident.

The Plaintiff filed a Complaint eight (8) days before the statute of limitations expired but did not attempt service until well past the thirty (30) day requirement.

The trial court reviewed the case of Lamp v. Heyman and its progeny. The court emphasized the importance of a plaintiff demonstrating good faith efforts to serve the Complaint within the required time frame.

Here, the trial court found that there is no concrete evidence produced by the Plaintiff showing that good faith efforts were made to complete service in a timely fashion. According to the Opinion, it did not appear that the Plaintiff attempted to even initiate service attempts over the five (5) months after he filed the original Complaint.

Given that the statute of limitations had effectively expired before proper service was accomplished, the court requested the Superior Court to affirm its Order sustaining of the Defendant’s Preliminary Objections.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 22, 2023).

Case Dismissed Due To Lack of Good Faith Effort to Complete Service

In the case of Wakefield v. Wal-Mart Stores East, LP, No. 10201-CV-2023 (C.P. Beaver Co. Aug. 10, 2023 Ross, J.), the court granted summary judgment in favor of a Defendant after finding that a Plaintiff could not satisfy the requirements of Lamp v. Heyman merely by providing a copy of the Complaint to a private attorney who had represented the Defendant in other cases in the past.

The court noted that such informal procedures do not assure that the Defendant will receive actual notice of the lawsuit. The court also more specifically noted that the private attorney who was provided with a copy of the Complaint was neither an employee nor an agent of the Defendant. Furthermore, that attorney did not otherwise agree to accept service on behalf of the Defendant.

The court in this matter found that such informal actions in an attempt to complete service did not represent a good faith effort to complete service.

The court additionally held that, under the current status of Pennsylvania law, in the absence of a good faith effort to complete service upon a Defendant, there is no need to consider whether or not the Defendant was prejudiced due to the failure to complete service in a timely fashion before the case could be dismissed.

The court additionally stated that failing to make a good faith attempt at service need not go so far as to constitute bad faith in order to run afoul of the statute of limitations.

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


I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

A Good Time For a Good Cause

Appellate Court Addresses Liability Issues Relative to Placement of Bus Stop In Pedestrian Injury Case

Bus Stop

In the case of Essington v. Monroe Co. Trans. Auth., No. 1081 C.D. 2022 (Pa. Cmwlth. July 11, 2023 McCullough, J., Dumas, J., and Wallace, J.) (Op. by McCullough, J.), the Commonwealth Court of Pennsylvania affirmed in part and reversed in part and remanded in part a trial court decision regarding the liability of certain Defendants in a case where a pedestrian was struck by a motorist after exiting from a bus at a bus stop near a residential development.

The appellate court held that, although the trial court properly ruled that PennDOT and the residential development had no control over safety conditions of a local transit authority’s bus stop, the trial court erred in granting the local transit authority summary judgment where there were allegations that the transit authority’s driver’s use of high beams allegedly blinded the other driver who struck the decedent.

The appellate court otherwise affirmed the entry of summary judgment in favor of PennDOT and the residential homeowner’s association.

The trial court had ruled that PennDOT was not liable because the real estate exception did not apply to policies or activities such as designing state roads.

The trial court had ruled that the homeowner’s association was not liable because it had no control over the bus stops and owed no duty to permit the transit authority buses to enter the development.

Anyone wishing to review a copy of this decision may click this LINK.  To view the Court's September 23, 2023 Order changing its July 11, 2023 Opinion on the case from a Memorandum Opinion to an Opinion that shall be reported, please click HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Premises Liability Claim Against An Out-of-Possession Landlord Allowed To Proceed

In the case of Poplawski v. Jiunta, No. 3338 CIVIL 2023 (C.P. Monroe Co. Aug. 28, 2023 Williamson, J.), the court denied a Defendant’s Preliminary Objections to a Plaintiff’s Complaint in which the Plaintiff alleged that he was injured when a large mirror fell on him in a business leased from the Defendant landowner.

The Defendant asserted that, as an out-of-possession landlord Defendant, the Plaintiff had failed to state a cause of action against that particular Defendant.

The court noted that a Complaint must not only give notice of a claim but also summarize the essential facts at issue. 

In this case, the Complaint alleged that the Defendant was the owner of the building where the Plaintiff was a customer, that a defect existed on the property in the form of an allegedly improperly secured mirror, and that the Plaintiff suffered injury when the mirror fell. 

The court found that these factual allegations were sufficiently specific to assert a negligence cause of action against the Defendant landlord.

Judge David J. Williamson
Monroe County

While Judge David J. Williamson of the Monroe County Court of Common Pleas noted that, as a general rule, a landlord out-of-possession is not liable for injuries on a lease premises unless certain exceptions applied, he could not sustain the landlord Defendant’s Preliminary Objections in this case. The court found that it remained unclear as to whether or not any of the exceptions to the rule applied. 

As such, the court allowed the case to proceed into discovery so that there could be a determination if there were any additional facts to clarify the Defendant’s role and potential responsibility.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 19, 2023).

Source of image:  Photo by furkanfdemir on www.pexels.com.

Third Circuit Rules that Federal Tort Claims Act Does Not Incorporate Certificate of Merit Requirements

In the case of Wilson v. U.S., No. 22-1940 (3d Cir. Aug. 21 2023 Chagares, C.J., Bibas, J., and Matey, J.) (Op. by Chagares, C.J.), the Third Circuit Court of Appeals ruled that a district court erred in granting summary judgment to the government based upon the failure of a pro se prisoner to produce an expert report in a medical malpractice action.

The court ruled that the Federal Tort Claims Act did not incorporate the Certificate of Merit requirement found under Pa. R.C.P. 1042.3.

The appellate court also noted that the pro se prisoner Plaintiff did not otherwise have an adequate opportunity to seek out an expert or to conduct discovery due to his circumstances as an inmate during the COVID-19 pandemic.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Sept. 21, 2023).

Summary Judgment In Favor of Ambulance Company Upheld [Non-Precedential]

In the non-precedential decision in the case of Fry v. Montrose Minute Men, Inc., No. 50-MDA-2022 (Pa. Super. July 28, 2023 Dubow, J., McLaughlin, J., and Collins, J.) (Op. by Collins, J.) [non-precedential], the Pennsylvania Superior Court sustained the entry of summary judgment entered in favor of a Defendant ambulance company in a case in which a Plaintiff alleged negligence and gross negligence against the ambulance crew members after the Plaintiff decedent passed away. 

The appellate court confirmed the lower court’s decision that the Defendant employees, acting in their capacities as a paramedics and EMTs did not demonstrate gross negligence or willful misconduct. As such, those employees, and by extension, the ambulance crew company, were absolved of any potential liability given the language of the Emergency Medical Services System Act (EMSSA), 35 Pa. C.S.A. §8101, et. seq.

Under the EMSSA it is provided that “[n]o EMS agency, EMS agency medical director or EMS provider who in good faith attempts to render or facilitate emergency medical care authorized by this chapter shall be liable for civil damages as a result of an act or omission, absent a showing of gross negligence or willful misconduct.”

As noted, the appellate court affirmed the entry of summary judgment in favor of the Defendants.

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


I send thanks to Attorney Ryan McBride of the Scranton office of Weber Gallagher for bringing this case to my attention.