Harrigan v. Forsythe

1

KATHERINE HARRIGAN, ADMINISTRATRIX OF THE ESTATE OF JOSHUA C. BULLOCK Appellant v. KIRSTEN FORSYTHE, SCOTT MASSEY AND OM MEDICAL GROUP, P.C. T/A RED LION PAIN & PRIMARY CARE

No. 1421 MDA 2021

No. J-A23039-22

Superior Court of Pennsylvania

June 30, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered October 22, 2021 In the Court of Common Pleas of York County Civil Division at No(s) 2021-SU-000053

BEFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E. ^[*]

MEMORANDUM

MCCAFFERY, J.

Katherine Harrigan (Appellant), administratrix of the Estate of Joshua C. Bullock (Decedent), appeals from the order entered in the Court of Common Pleas of York County sustaining the preliminary objections filed by Kirsten Forsythe, Scott Massey, and OM Medical Group, P.C. t/a Red Lion Pain &amp Primary (collectively, Appellees), and dismissing Appellant's claims against them in their entirety. Appellant contends the trial court erred in finding that she failed to properly serve Appellees in a timely manner, and therefore, it lacked personal jurisdiction pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(1)^[1] to review the matter. Based on the following, we reverse the court's October 22, 2021, order and remand for further proceedings.

The relevant facts and procedural history are as follows:

[Appellant] was . . . appointed Administratix of the Estate of Joshua C. Bullock [(Decedent)], pursuant to Letters of Administration issued on May 15, 2020. [Appellant] is the Mother of [D]ecedent.

[Appellee] Kristen Forsythe is an adult individual and Certified Registered Nurse Practitioner (CRNP) who, at the time of the events was an employee, agent, servant, partner, or shareholder, actual or ostensible/apparent with one or more of the other defendants (herein "[Appellee] Forsythe"). [Appellee] Scott Massey, MD, is an adult individual and medical doctor who is an employee, agent, servant, partner, or shareholder, actual or ostensible/apparent with Defendant OM (herein "[Appellee] Massey"). [Appellee] OM Medical Group, P.C. t/a Red Lion Pain & Primary Care, is a Professional Corporation formed and organized under the laws of the Commonwealth of Pennsylvania. The corporation is engaged in the business of providing health care services to the general public, and, at all times relevant to the events of this case, maintained a principal place of business at Red Lion Pain & Primary Care, 718 S. Main Street, Red Lion, Pennsylvania 17356 (herein "[Appellee] OM"). [Appellant] is asserting a professional liability claim and wrongful death cause of action against [Appellees].

[D]ecedent was born July 22, 1991 and was [27] years old at the time of his death on January 16, 2019. Decedent was never married and had no children.

Decedent first visited Red Lion Pain & Primary Care on August 27, 2018, complaining of right knee pain. He was seen by [Appellee] Forsythe who determined he had "right progressive Osgood Schlatter's disease with tibial bone/ligament separation" and "left medical tibial plateau fracture." [Appellee] Forsythe prescribed [five milligrams two times per] day of Oxycodone to be taken orally and [ten milligrams two times per] day of Oxycontin also to be taken orally. Decedent's total medication was equal to 45 MME/day.^[2] It is alleged that [a] dosage above 90 MME/day is associated with an increased risk of harm, including death. [Appellee] Massey reviewed [D]ecedent's case on September 1, 2018, and agreed with [Appellee] Forsythe's assessment, findings, and plan.

Over the course of the next few months, . . . Decedent's medication was adjusted multiple times, and at each stage of the change in medication [Appellee] Forsythe submitted the medication change and [Appellee] Massey reviewed and agreed with the assessment. One of the changes involved replacing Oxycontin with Fentanyl transdermal patches.

On January 8, 2019, [D]ecedent's medication was changed to substitute Dilaudid for Oxymorphone [five milligrams two times per] day and the Fentanyl prescription remained the same. This changed prescription kept [D]ecedent's opioid levels above 120 MME/day. The decedent died on January 16, 2019, eight days after his last visit to Red Lion Pain & Primary Care. The cause of death was determined to be "acute fentanyl toxicity." . . .

Trial Ct. Op., 8/3/21, at 1-4 (some paragraph breaks added).

On January 12, 2021, Appellant filed a complaint against Appellees, asserting negligence and professional liability claims, as well as a wrongful death cause of action. On February 2, 2021, Appellant filed a motion for the admission of Ray M. Shepard, Esquire as additional counsel pro hac vice.^[3]Three days later, the court granted Appellant's motion concerning Attorney Shepard. See Order, 2/5/21. The certified docket entries include a notation that the York County Prothonotary's Office provided notice of the trial court's order pursuant to Pennsylvania Rule of Civil Procedure 236 that same day.

During this time, counsel for Appellee Massey entered his appearance in the matter. See Praecipe to Enter Appearance, 4/12/21.

On April 15, 2021, Appellant filed three notarized affidavits of service. With respect to Appellee Massey, Appellant filed a notarized affidavit of service wherein Richard William DeLauder, a process server, indicated that "on April 5, 2021, at 1:03 p.m.," he served, inter alia, Appellant's complaint "to hand." DeLauder Affidavit of Service, 4/15/21, at 1 (unpaginated; emphasis omitted). The affidavit of service further indicated that the documents were delivered to Appellee Massey in the following manner: "Sub-Served, Victoria Wynegar, Office Assistant." Id. As for Appellee Forysthe, Appellant filed a notarized affidavit of service wherein Steven M. Silver, who is a process server, indicated he "served upon Kristen Forsythe P/K/A Kirsten Forsythe . . . on the 11th day of April, 2021, at [ ] Plank Road, Stewartstown, Pennsylvania 17363 at 11:45 a.m. [by] delivering and leaving with the person served [inter alia, the complaint]." Silver Affidavit of Service, 4/15/21, at 1 (unpaginated). Lastly, with regard to Appellee OM, Appellant filed a notarized affidavit of service wherein Roger Metzgar, a process server, indicated he received the complaint to be served on "OM Medical Group, P.C., United States Corporation Agents, Inc., [ ] Tilghman Street, Rear, Allentown, PA 18109." Metzgar Affidavit of Service, 4/15/21, at 1 (unpaginated). He indicated that, on April 2, 2021, at 1:17 p.m., he "substitute served by delivery a true copy [of the documents] to Cory Douglas as Operations Manager, a person employed therein and authorized to accept service for OM Medical Group, P.C. at . . . the within person's usual place of Work[.]" Id. (some emphasis omitted).

On April 20, 2021, Appellee Massey filed preliminary objections to Appellant's complaint for improper service and lack of personal jurisdiction pursuant to Rule 1028(a)(1). See Preliminary Objections of Appellee, Scott Massey, M.D., to Appellant's Complaint, 4/20/21, at 5. Appellee Massey pointed out that Appellant filed her complaint on January 12, 2021, in relation to the purported negligence that resulted in the death of Decedent on January 16, 2019. Id. He noted that the applicable statute of limitations is two years,^[4] and Appellant "ha[d] neither effectuated proper service upon [Appellee] Massey, nor ha[d] she exhibited the good-faith requirement to effectuate service necessary to toll the applicable statute of limitations." Id. at 4. Appellee Massey alleged:

8. In this regard, the docket reflects that no actions were taken on behalf of [Appellant] between the filing of the Complaint, January 12, 2021, and April 15, 2021, to effectuate service in accordance with the precise requirements of the Rules of Civil Procedure, including, a request to the York County Sheriff for Service, reinstatement of the Complaint and/or an affidavit of non-service.

9. Instead, on April 15, 2021, [Appellant] filed an Affidavit of Service indicating that [Appellee] Massey was served by a private process server at [ ] Main Street, Red Lion, PA. . . .

10. In Pennsylvania, "original process shall be served within the Commonwealth only by the sheriff." Pa.R.C.P. 400(a). There is absolutely no exception to this long standing procedural mandate for service within the Commonwealth absent prior Court Order.

11. Consequently, as [Appellee] Massey is a private citizen residing in this Commonwealth, service by a private process server is legally improper and ineffective.

Id. at 5-6 (record citation & emphases omitted). Appellee also complained that Appellant "failed to take necessary actions to toll the statute of limitations in order to effectuate proper service as [Appellant] has continually failed to reinstate the [c]omplaint." Id. at 7. He further stated that "actual notice cannot be established as the improper [a]ffidavit of [s]ervice confirms that actual notice was not provided until, at the earliest, April 2, 2021, approximately [three] months after the expiration of the applicable statute of limitations." Id.

On May 10, 2021, Appellant filed a motion in opposition to Appellee Massey's preliminary objections. She alleged that Appellee Massey "received actual notice of commencement of the action against him in February 2021, and within [30] days of the [c]omplaint being filed, when the Prothonotary mailed a copy of the [o]rder admitting [Attorney] Shepard into the case pro hac vice to him on February 5, 2021." Appellant's Opposition to Appellee Massey's Preliminary Objections to Appellant's Complaint, 5/10/21, at 5.

One day later, Appellee Forsythe filed preliminary objections to Appellant's complaint, alleging similar arguments to those presented by Appellee Massey....