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How Long is Too Long to Wait before Reattempting Service of a Complaint? (PA)

May 29, 2019

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<p style="text-align: justify;">On May 22, 2019, the Superior Court of Pennsylvania affirmed an entry of judgment on the pleadings in favor Antoine’s Timbering, Inc. in<em> <a href="">Pa Electric Co. v. Antoine's Timbering</a> </em> The case stems from Antoine’s Timbering allegedly cutting down a tree that caused damage to poles, wires and facilities of Penelec as well as a loss of power to its customers.  Nonetheless, the issue before the Superior Court involved service of the complaint on Antoine’s Timbering.</p>
<p style="text-align: justify;">On February 19, 2016, prior to filing the complaint, Penelec reviewed the address listed for Antoine’s Timbering on the Corporation Bureau which showed that Antoine’s Timbering could be located at RT 438, Box 86, La Plume, PA 18440.  However, on April 19, 2016 the Sullivan County Sheriff’s Office filed an affidavit stating service had not been perfected on Antoine’s Timbering because the address was invalid.  Even though counsel for Penelec received this information, Penelec did not make another service attempt until <strong>18 months later</strong> on October 10, 2017.  During that time, the statute of limitations had expired on April 24, 2017 and therefore service was improper.  Nonetheless, Antoine’s Timbering was eventually served on December 8, 2017 at the correct address.</p>
<p style="text-align: justify;">Upon receiving the complaint, Antoine’s Timbering filed preliminary objections arguing Penelec failed to effect service in a timely manner and therefore violated the statute of limitations.  Penelec countered by arguing it had made attempts to secure Antoine’s address and therefore had undertaken a good faith search and therefore the “equivalent period doctrine” applied.  The Court sustained Penelec’s preliminary objections and, after the pleadings closed, Antoine’s Timbering filed a motion for judgment on the pleadings making the same argument.  This time, the Court agreed and granted the motion filed by Antoine’s Timbering.  The Court ruled that the 18 month delay “unnecessarily delayed the legal process” and therefore Penelec did not make a good faith effort to serve Antoine’s Timbering.</p>
<p style="text-align: justify;">On appeal, Penelec attempted to argue it made a good faith effort in serving Antoine’s Timbering but the Superior Court again disagreed.  The Court stated the “equivalent period doctrine” was inapplicable here because Penelec had provided no justification as to why it waited 18 months to attempt to effect service on Antoine’s Timbering again.  The Court noted that Penelec had not even tried to locate another address for Antoine’s Timbering during that time.  As such, the Court affirmed the lower court’s ruling.</p>
<p style="text-align: justify;">This fact pattern also offers some insight as to why defense counsel should be careful before agreeing to waive jurisdictional defenses in exchange for an extension of time to answer a complaint.   Jurisdictional defenses include lack of personal jurisdiction and improper service, and those defense come in handy -- especially when approaching the statute of limitations deadline.  Thanks to Garrett Gittler for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.</p>

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