Wade Clark Mulcahy LLP

The Pennsylvania Superior Court recently reversed the trial court’s sustaining of preliminary objections on the grounds of improper service of defendants.  In <a href="https://www.wcmlaw.com/wp-content/uploads/2019/05/AICB-v.-Benjamins-Desk.pdf">AICB v. Benjamin's Desk</a><em>, LLC, </em>No. 3257 EDA 2017 (2019 PA Super 77), AICB appealed the lower court’s sustaining of Benjamin’s Desk’s preliminary objections for improper service. Benjamin’s Desk retained a general contractor who then hired AICB as a subcontractor for constructing office space improvements.  AICB alleged that the general contractor failed to pay AICB over $89,000 for services rendered, and therefore asserted a mechanics’ lien against Benjamin’s Desk.

AICB served Benjamin’s Desk with notice of the mechanics lien via FedEx.  The notice was delivered and signed for on March 21, 2017.  Benjamin’s Desk filed preliminary objections arguing that AICB failed to comply with Philadelphia County’s service-of-notice requirements because a private postmark is not equivalent to a United States Postal Service postmark.  The trial court sustained the preliminary objections and dismissed the case.

On appeal, AICB argued that it served Benjamin’s Desk via a competent adult (private FedEx courier) and complied with the applicable service rules.  The Superior Court explained that the applicable rule for service of original process in Philadelphia states that original service may be served “within the county by the sheriff or a competent adult.”  A “competent adult” means an individual eighteen (18) years of age or older who is neither a party to the action nor an employee or a relative of the party.  Furthermore, original process may be served by handing a copy any office or usual place of business to the defendant or its agent.

In its decision, the Superior Court relied on PA Supreme Court precedent that technical noncompliance with the civil procedure rule for service of original process may be excused absent “intent to stall the judicial machinery” or actual prejudice.  In this case, the Court noted that even if AICB failed to comply with the technical postmark requirements, Benjamin’s Desk did receive actual notice.  Thus, the court concluded that the trial court committed an error of law in sustaining the preliminary objections and reversed the dismissal and remanded the matter for further proceedings.  Thanks to Greg Herrold for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.