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Failure to Effectuate Service Within 30 Days Not Necessarily Fatal.

May 8th, 2017

In Fernando Melendez v. The Good Samaritan Hospital et al., 1496 MDA 2015 (Pa. Super May 8, 2017), a non-precedential decision, the Pennsylvania Superior Court reversed an order from the Court of Common Pleas of Lebanon that granted the defendant’s motion for judgement on the pleadings based on defective service in a medical malpractice suit.

Plaintiff conceded that proper service was not achieved within 30 days of filing the complaint, and after the two-year statute of limitations had run.  Instead, service was achieved 39 days after the complaint was filed, and 17 days after the Statute of Limitations had passed.  Plaintiff’s counsel attributed the delay to an error by one of his staff members, but argued a good faith effort was made to serve Defendants, and that Defendants were not prejudiced by the slight delay.

The Court agreed with Plaintiff, citing the Pennsylvania Supreme Court’s decision in McCreesh v. City of Philadelphia, 888 A.2d 664 (Pa. 2005), which adopted a more flexible approach to the technical non-compliance with the Rules of Civil Procedure.  The Court noted that the trial court’s determination could not be reconciled with McCreesh, as Plaintiff’s defective service was not meant to stall judicial proceedings and that Defendant had not been prejudiced by the delay.

The Court noted that Plaintiff had promptly reinstated the complaint and effectuated service within five days of learning of the error.  Accordingly, the trial court’s order was reversed.   Before Ford-Elliott, P.J.E, Bender, J., and Stevens, P.J.E., Memorandum Opinion by Fort-Elliott, P.J.E.

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