April 28, 2022

The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) stated in its opinion filed on February 22, 2022: “It is well-established that “[s]ervice of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her.””

In the Pennsylvania medical malpractice case the Pennsylvania Appellate Court was deciding, the plaintiff alleged that he had attempted to serve the defendant, Penn Presbyterian Medical Center (“PPMC”), at its General Counsel’s Office on September 29, 2020 but was unsuccessful. Specifically, the plaintiff claimed that his process server was informed that personnel would not return to the General Counsel’s Office until after 2020. The plaintiff argued that PPMC failed to leave anyone in charge to accept service or provide instructions to those attempting service. The plaintiff alleged that he tried to find an agent of PPMC who would accept service of his complaint, but was unable to do so.

Pennsylvania Rule of Civil Procedure 401(a) provides that “[o]riginal process shall be served within 30 days after the issuance of the writ or the filing of the complaint.” Pa.R.C.P. 401(a). If the plaintiff is unable to serve the complaint within the period prescribed by Rule 401(a), the plaintiff may file a praecipe for the reissuance of the writ or reinstatement of the complaint in order to continue its validity. Pa.R.C.P. 401(b). Pennsylvania courts have provided that “[s]o long as the plaintiff files her writ or complaint before the expiration of the statute of limitations applicable to her cause of action, the original filing, as well as any subsequent reissuances or reinstatements, tolls the statute of limitations.”

The Pennsylvania Appellate Court stated in the case it was deciding: “We reject Appellant’s argument that he made a good faith effort to serve PPMC with the complaint, solely based on his allegation that he made one attempt to serve PPMC on September 29, 2020. Appellant indicated that his attempt to complete personal service was unsuccessful as the process server was informed by front desk security in the General Counsel’s office that no one would be working in the office until after 2020.”

“Appellant fails to explain why he neither filed an affidavit of no-service with the trial court nor informed the trial court in any way that PPMC had not been served with the complaint in violation of Pa.R.C.P. 405(a). Moreover, after Appellant’s first attempt at service was unsuccessful, Appellant offers no evidence that he diligently made an effort to discover how to serve PPMC or provide any notice to PPMC of the action. Appellant did not seek permission from the trial court to use an alternative method of service pursuant to Pa.R.C.P. 430.”

“Instead, Appellant’s counsel took no action until five months later on February 15, 2021 when an associate in his firm contacted PPMC’s Office of General Counsel through email, informed them that Appellant had unsuccessfully attempted to personally serve his complaint, and asked if PPMC’s Office of General Counsel would accept his complaint via email.”

“Nancy VanTrieste, claims administrator at the Office of General Counsel, promptly replied to this email and indicated that she was able to accept service by email or, in the alternative, was able to meet with Appellant’s process server on Wednesdays. Within an hour of Appellant’s initial email, Ms. VanTrieste confirmed that she accepted service of Appellant’s complaint on behalf of PPMC. Appellant offers no explanation as to why he could not have made this inquiry months earlier. To the contrary, Appellant’s lack of due diligence is apparent in this case, and his attempt to blame the COVID-19 pandemic as the cause of the lack of timely service is misplaced.”

The Pennsylvania Appellate Court held: “we conclude that Appellant failed to produce evidence to show he acted diligently in making a good-faith effort to serve PPMC with notice that he had filed his complaint. Accordingly, we affirm the trial court’s decision to sustain PPMC’s preliminary objection with respect to Appellant’s improper service of the complaint pursuant to Pa.R.C.P. 1028(a)(1) and dismissing Appellant’s complaint.”

Source Bellan v. Penn Presbyterian Medical Center, 2022 PA Super 32.

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