On November 13, 2025, the Superior Court of Pennsylvania, in Vargas v. United Modular Enterprise, 2025 LX 598559, 2025 WL 3172328 (Pa. Super. Ct. Nov. 13, 2025), sustained the preliminary objections of United Modular Enterprise (“UME”) and William Fertsch (“Mr. Fertsch”) (collectively, “Appellees”) and affirmed an Order dismissing the plaintiffs’ complaint, with prejudice, as time barred. In a published memorandum, the Court applies the rule set forth in Lamp v Heyman, 366 A.2d 882, 884 (Pa. 1976), as the grounds for the dismissal of a time barred complaint.
On February 12, 2021, Rafael Vargas (“Vargas”), initiated a negligence action concerning a motor vehicle accident between him and a tractor-trailer, driven by Mr. Fertsch, and owned or leased by UME; the accident occurred on February 20, 2019. Appellee’s counsel entered their appearance the same day that the complaint was filed; however, Vargas did not serve the complaint on Appellees. In July—August 2021, Vargas reinstated his complaint, and the sheriff made a total of seven (7) attempts of service, all of which were unsuccessful. On December 28, 2021, Vargas filed a motion for alternative service, which was denied based on the court finding that Vargas had not made a good-faith effort to locate Appellees and he had not shown practical efforts to serve the complaint on Appellees. In late January 2022, Vargas again reinstated his complaint. On February 14, 2022, Vargas filed a second motion for alternative service, and it was granted by the court. Vargas was authorized to serve his complaint on Appellees by mail and posting; service was perfected on February 27, 2022. After preliminary objections, including an affidavit from Mr. Fertsch completed four (4) days prior to service, resulted in the filings of amended complaints and a transfer of venue from Philadelphia County to Bucks County, Appellees filed preliminary objections to the third amended complaint arguing that the complaint should be dismissed because the statute of limitations had expired. The trial court sustained Appellee’s preliminary objection and dismissed the case, and Vargas appealed.
Pursuant to Lamp and its progenies, Farinacci v. Beaver Cnty. Indus. Dev. Auth., 511 A.2d 757, 758 (Pa. 1986) and Gussom v. Teagle, 247 A.3d 1046, 1049 (Pa. 2021), a plaintiff is required to make a good faith effort in diligently and timely serving process on a defendant and the plaintiff carries an evidentiary burden to demonstrate they met the good faith mandate. Id. Whether a plaintiff demonstrated a good faith effort to effectuate service of process is a question of law. Ferraro v. Patterson-Erie Corp., 313 A.3d 987, 1011 (Pa. 2024). Additionally, actual notice is relevant only when a plaintiff makes “improper but diligent attempts at service” that result in actual notice and plaintiff has not “evinced an intent to stall the judicial machinery or otherwise prejudiced the defendant.” Gussom, 247 A.3d at 1057.
In his appeal, Vargas argued that the unsuccessful attempts of service by the sheriff and motions for alternative service demonstrate his good faith effort to serve Appellees and the affidavit attached proved Appellees were put on notice of the action before service was made. The Vargas Court, however, noted that the complaint was filed eight days before the statute of limitations expired and Vargas failed to serve Appellees within thirty (30) days of filing the complaint. In fact, Vargas did not attempt service for five months after filing his complaint, and service was not effectuated for approximately one year after Vargas filed a complaint. The Court further emphasized that actual notice, which does not result from a plaintiff’s good-faith efforts to timely serve a complaint, does not satisfy a plaintiff’s evidentiary burden. Furthermore, the courts do not consider whether attempts at service were made in good faith when ruling on a motion for alternative service, so that argument was without merit. Based primarily on this timeline of Vargas’s attempts of service, or lack thereof, the Superior Court affirmed the trial court’s order to dismiss the complaint as time barred by the applicable statute of limitations.
A plaintiff is able to serve a defendant after the statute of limitations has expired, granted they meet their burden to prove good faith efforts were made in diligently and timely service process on a defendant. Vargas argued that the three (3) reinstatements of the complaint, the seven (7) unsuccessful attempts of service by a sheriff, the granting of a motion for alternative service, and Appellees’ actual notice of the action evidenced a good faith effort to serve Appellees. Still, the Vargas Court determined those attempts were untimely and Vargas failed to satisfy his evidentiary burden pursuant to Lamp. In other words, the Superior Court emphasized that actual notice, which does not result from a plaintiff’s good-faith efforts to timely serve a complaint, and/or efforts made more than thirty (30) days after the complaint was filed do not automatically satisfy the plaintiff’s evidentiary burden and dismissal of the complaint may be appropriate.
The Vargas Memorandum can be found here.
For additional questions, please contact Conrad James Benedetto, Esq. and/or Steven E. Tambon, Esq.
This article was prepared by McCormick & Priore, P.C. to provide information on recent legal developments of interest to our readers. This publication is in no way intended to provide legal advice or to create an attorney-client relationship. All Rights Reserved. This article may not be reprinted without the express written permission of McCormick & Priore, P.C.