HomeMy WebLinkAbout93-3537 Civil SUSAN AIKENS SEDERES, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
BRETT CESSNA, :
Defendant : NO. 3537 CIVIL 1993
IN RE: DEFENDANT'S PRRLIMINARY OBJECTIONS
BEFORE HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this 2~ ~ day of April, 1994, upon careful
consideration of Defendant's Preliminary Objections, as well as the
briefs and arguments presented on the matter, the Court ORDERS the
following:
1. The service of process is SET ASIDE, and Plaintiff is
DIRECTED to effectuate service of process in accordance with
Pennsylvania Rule of Civil Procedure 400;
2. All other relief requested by Defendant is DENIED.
BY THE COURT,
J~Wesley Ole ,~jr.7/j?
carolyn M. Anner, Esq.
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiff
William A. Add--s, Esq.
28 South Pitt Street
P.O. Box 208
Carlisle, PA 17013
Attorney for Defendant
: rc
SUSAN AIKENS SEDERES, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION - LAW
:
BRETT CESSNA, :
Defendant : NO. 3537 CIVIL 1993
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE HOFFER and OLER, JJ.
OPINION AND ORDER OF COURT
Oler, J.
At issue in the present case is a preliminary objection filed
by Brett Cessna (Defendant)~ challenging service of original
process in a negligence action commenced by Susan Aikens-Sederes
(Plaintiff). For the reasons set forth in this Opinion, although
we agree with Defendant's objection with respect to the service of
process, the relief requested of dismissal of the action will be
denied.
The factual allegations of Plaintiff's Complaint may be
summarized as follows. Plaintiff is an adult individual residing
at 5130 Haverford Road, Harrisburg, Dauphin County, Pennsylvania.2
Defendant is an adult individual residing at R.D. #4, Box 304,
Bedford, Pennsylvania.3
On November 22, 1991, Plaintiff was driving her 1983 Honda
Accord southbound on U.S. Route 11, approaching the North Middlesex
~ Although Defendant's pleading is captioned "Preliminary
Objections," only one objection has been raised.
2 Plaintiff's Complaint, paragraph 1.
3 Plaintiff's Complaint, paragraph 2.
NO. 3537 CIVIL 1993
Road intersection in Middlesex Township, Cumberland County,
Pennsylvania.4 At the same time, Defendant was operating his 1987
Toyota pickup on U.S. Route 11 and following Plaintiff.5 As
Plaintiff was approaching a red light at the intersection, she
stopped her vehicle. Subsequently, Defendant's vehicle struck
Plaintiff's vehicle in the rear. As a result of this collision,
Plaintiff "has suffered severe bodily injury."6
On November 8, 1993, Plaintiff.filed a Praecipe for Writ of
Summons, directing the Prothonotary to issue a writ in this case.
In turn, Plaintiff's attorney mailed the writ to Defendant on
November 9, 1993.7 An appearance was entered on behalf of
Defendant on December 29, 1993, and at Defendant's direction a rule
was issued upon Plaintiff to file a complaint.8
Following the filing of the Complaint, the instant preliminary
Plaintiff's Complaint, paragraphs 4, 6.
Plaintiff's Complaint, paragraphs 3, 7.
Plaintiff's Complaint, paragraph 10.
Defendant's Preliminary Objections, paragraph 1;
Plaintiff's Answer to Preliminary Objections, paragraph 1.
8 Under Pennsylvania Rule of Civil Procedure 1012, entry of
an appearance does "not constitute a waiver of the right to raise
any defense including questions of jurisdiction." In addition,
"[f]iling a praecipe for a rule on the plaintiff to file a
complaint does not constitute a waiver of the defendant's right to
challenge the jurisdiction of the court over his person."
Shughart, Pennsylvania Civil Practice §3.6, at 44 n.23 (2d ed.
1993), citing Scheffner v. Hayden, 73 Erie 32 (1990).
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NO. 3537 CIVIL 1993
objection to service of the writ of summons was filed,9 contending
that Plaintiff "did not have the original process properly served"
and requesting that the writ and complaint be stricken and the
Complaint dismissed.~° In response to this objection, Plaintiff
filed an answer, averring that she did attempt to have the original
process served by the sheriff:
...Plaintiff contacted the Sheriff's office
for such service, and such service was denied,
as the Sheriff could not service a post office
box and Plaintiff had no other address. In
order to adhere to the thirty-day rule of
service of a Writ, Plaintiff served the Writ
by certified mail on November 9, 1993 in order
to give proper and timely notice to Defendant.
Defendant signed for the certified mail
addressed to him at R.D. 4, P.O. Box 304,
Bedford, PA 15522 on November 15, 1993.
Further, negotiations in this case started in
July 1993 and continued in good faith until a
general appearance was entered by Defendant's
counsel on December 29, 1993.~
No depositions were taken on the matter,~2 and on January 19,
9 "[N]ew Rule 1028(a)(1) provides for a preliminary objection
to the ... service of a writ of summons. However, the preliminary
objection may not be filed to the writ of summons if no complaint
has been filed. A writ is not a pleading and any objection to it
must await the filing of the complaint." Pa. R.C.P. 1017,
Explanatory Comment -- 1991.
~0 Defendant's Preliminary Objections, paragraph 5 and request
for relief clause.
~ Plaintiff's Answer to Preliminary Objections, paragraph 5.
~2 "If an issue of fact is raised [in a preliminary objection
under Pennsylvania Rule of Civil Procedure 1028(a)(1), inter alia],
the court shall consider evidence by depositions or otherwise."
Pa. R.C.P. 1028(c)(2).
3
NO. 3537 CIVIL 1993
1994, Defendant listed the preliminary objections for argument.~3
Briefs were submitted on behalf of the parties, and the matter was
argued on February 23, 1994.
With certain exceptions not here relevant, Pennsylvania Rule
of Civil Procedure 400 requires that "original process shall be
served within the Commonwealth only by the sheriff." In this
regard, it has been observed that "[t]he rules relating to service
of process must be strictly followed, and jurisdiction of the court
over the person of the defendant is dependent upon proper service
having been made." Sharp v. Valley Forge Medical Center, 422 Pa.
124, 127, 221 A.2d 185, 187 (1966).TM This requirement of strict
adherence to the rules relating to service of process stems from
the fact that "[s]ervice of process upon the defendant is designed
to provide him with notice of the lawsuit. Notice is extremely
important, as it is the constitutional touchstone for the power of
the court to act." Rosenberg v. Nicholson, 408 Pa. Super. 502,
506-07, 597 A.2d 145, 147 (1991), appeal denied, 530 Pa. 633, 606
A.2d 903 (1992). Furthermore, when service is improperly made, it
cannot be viewed as "merely a procedural defect which can be
ignored when the defendant, by whatever means, becomes aware that
an action has been commenced against him or her." Frycklund v.
~3 Praecipe for Listing Case for Argument (January 19, 1994).
~ See, e.g., Mooney v. Commonwealth of Pennsylvania, Borough
of West Mifflin, 134 Pa. Commw. 557, 578 A.2d 1384 (1990) (use of
certified mail held to be defective method of service of process).
4
NO. 3537 CIVIL 1993
Way, 410 Pa. Super. 347, 351-52, 599 A.2d 1332, 1334 (1991), appeal
denied, 531 Pa. 654, 613 A.2d 560 (1992).
In an appropriate case, the result of a defective service of
original process may be a dismissal of the proceeding. See, e.g.,
Farinacci v. Beaver County Industrial Development Authority, 510
Pa. 589, 511 A.2d 757 (1986); Mooney v. Commonwealth of
Pennsylvania, Borough of West Mifflin, 134 Pa. Commw. 557, 578 A.2d
1384 (1990). On the other hand, the dismissal of an action may
effectively foreclose a plaintiff's claim by reason of the statute
of limitations; consequently, considerations as to whether a
plaintiff acted in good faith to effect service, whether a
plaintiff engaged in a course of conduct "forestalling the legal
machinery put in motion by his/her filings," and whether the defect
in service has "affected any substantial rights" of the defendant
have assisted courts in evaluating the issue of dismissal on a
case-by-case basis. Leidich v. Franklin, 394 Pa. Super. 302, 311-
13, 575 A.2d 914, 918-19, appeal denied, __ Pa. , 584 A.2d 319
(1990). A lower court will be reversed where a dismissal of an
action has been granted on the basis of defective service under
circumstances supporting only the setting aside of the service.
Frycklund v. Way, 410 Pa. Super. 347, 599 A.2d 1332 (1991), appeal
denied, 531 Pa. 654, 613 A.2d 560 (1992).
In the present case, the service of the writ of summons was
defective and must be set aside. The Court is not in a position to
5
NO. 3537 CIVIL 1993
conclude, however, from the record as it presently exists, that
considerations pertinent to the issue warrant an outright dismissal
of Plaintiff's action. For these reasons, the following Order will
be entered:
ORDER OF COURT
AND NOW, this ~ ~ day of April, 1994, upon careful
consideration of Defendant's Preliminary Objections, as well as the
briefs and arguments presented on the matter, the Court ORDERS the
following:
1. The service of process is SET ASIDE, and Plaintiff is
DIRECTED to effectuate service of process in accordance with
Pennsylvania Rule of Civil Procedure 400;
2. All other relief requested by Defendant is DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Carolyn M. Anner, Esq.
319 Market Street
P.O. Box 1177
Harrisburg, PA 17108-1177
Attorney for Plaintiff
William A. Addams, Esq.
28 South Pitt Street
P.O. Box 208
Carlisle, PA 17013
Attorney for Defendant
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