Opinion
No. 695 WDA 2000.
Filed: March 20, 2001. Petition for Reargument Filed March 30, 2001.
Appeal from the Order Entered March 24, 2000, In the Court of Common Pleas, Allegheny County, Civil Division, at No. GD 99-16566.
BEFORE: DEL SOLE, LALLY-GREEN and BROSKY, JJ.
OPINION
¶ 1 Shirley and William Herlihy appeal pro se from the order of the trial court granting Appellee's preliminary objections and dismissing their complaint. The basis for the preliminary objections is Appellants' failure to effectuate service of original process on Appellee. After careful review, we reverse the trial court's order.
¶ 2 The facts, as gleaned from the sparse record, are as follows. This action arises from an automobile accident on October 30, 1997 involving Appellant/Wife and Appellee. Appellants, who have never been represented by counsel, filed a praecipe for writ of summons on October 18, 1999. Although the writ was issued, Appellants did not deliver it to the sheriff's office with directions for service, as is the practice in Allegheny County. Appellants assert to do so would have been fruitless as they had no address for Appellee to provide to the sheriff.
Pa.R.C.P. 401(a) requires that "[o]riginal process shall be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint."
¶ 3 On October 19, 1999, Appellant/Wife spoke with a representative of Liberty Mutual Group, which insured Appellee, regarding settlement of the claim. A copy of that letter is included in the record. However, instead of agreeing to the settlement offer, Appellant/Wife asked Liberty Mutual to provide her with the address of Appellee. The Liberty Mutual representative refused to do so after speaking with Appellee, who would not give her permission to release that information. On October 26, 1999, Appellants served a written request on Liberty Mutual Group, styled an interrogatory, requesting Appellee's address and telephone number. Liberty Mutual did not respond. Appellants also tried calling several telephone numbers in the local directory but were unsuccessful in reaching or locating Appellee.
¶ 4 On December 23, 1999, a praecipe for appearance was filed by counsel on Appellee's behalf, and on January 5, 2000, Appellee filed a praecipe for a rule to file complaint. Appellants filed their complaint on February 16, 2000, to which Appellee filed preliminary objections in the nature of a motion to strike, challenging the absence of proper service of process. Appellants responded with an affidavit of Appellant/Wife together with a copy of the written interrogatory directed to Liberty Mutual and the October 19, 1999 letter from Liberty Mutual to Appellant/Wife. The trial court entered its order on March 24, 2000 granting the preliminary objections and dismissing Appellants' complaint. This timely appeal followed.
This Court has held that the filing of an appearance pursuant to Pa.R.C.P. 1012, without more, does not result in a waiver of the right to challenge, by preliminary objection, a defect in service. Cathcart v. Keene Industrial Insulation, 471 A.2d 493 (Pa.Super. 1984). Recognizing that a party may waive objections to personal jurisdiction by consenting to the court's authority, we stated that "[f]or waiver to occur a party must take some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forego objection to the defective service." Id. at 499 (emphasis added). Cf. Cinque v. Asare, 585 A.2d 490 (Pa.Super. 1990) (entry of appearance together with request for discovery was "affirmative action to defend the case" where objection to service was not made until two years later).
By way of factual background, Appellants allege in their complaint that Appellant/Wife was stopped in her vehicle behind Appellee, when Appellee put her vehicle in reverse and backed into Appellant/Wife.
The docket does not contain any entry indicating reissuance of the writ or reinstatement of the complaint.
¶ 5 We note initially that a defect in service of process is a matter which must be raised by preliminary objections, and that the failure to attack such a defect by preliminary objection will result in waiver of such defects. See Cinque, supra n. 2; Pa.R.C.P. 1028. On appellate review of rulings on preliminary objections which result in dismissal of the action, this Court will affirm only if the case is clear and free from doubt. Fidelity Leasing, Inc. v. Limestone County Board of Education, 758 A.2d 1207 (Pa.Super. 2000).
¶ 6 Appellants assert that because they made a "good faith" effort at attempting to notify Appellee of the lawsuit against her, their complaint should not have been dismissed for lack of service. Appellee, in contrast, contends that because there has been no service, the trial court properly dismissed the action.
¶ 7 Appellee is correct in her assertion that proper commencement of a lawsuit requires two actions: the filing of a writ or complaint within the applicable statute of limitations, and timely service of process. Cahill v. Schults, 643 A.2d 121 (Pa.Super. 1994). However, we conclude that the trial court erred by dismissing Appellants' complaint at this stage of the proceedings simply because service had not been effectuated.
¶ 8 In Fryckland v. Way, 599 A.2d 1332 (Pa.Super. 1991), appeal denied, 613 A.2d 560 (Pa. 1992), the plaintiff attempted to serve the defendant at an address where defendant no longer resided. The trial court concluded that service was invalid because the defendant had moved before service was attempted there, and sustained the defendant's preliminary objections and dismissed the complaint. On appeal, this Court agreed that service was not properly made on the defendant. However, we stated that the proper remedy was to set aside the improper service, and that dismissal of the action was improper, citing Nicolosi v. Fittin, 252 A.2d 700 (Pa. 1969). Similarly, in Collins v. Park, 621 A.2d 996 (Pa.Super. 1993), this Court determined that where the attempted service on the defendant was defective, the proper remedy in ruling on preliminary objections was to set aside the service, not dismissal of the complaint. We stated that "the action remains open, but it cannot proceed against a defendant unless the plaintiff can thereafter effect service on such defendant which is sufficient to vest jurisdiction in the court." 621 A.2d at 999.
¶ 9 While it is true in this case that there has been no "service" to set aside, that does not mean that the proper remedy is dismissal of the action. Instead, the action remains open, and Appellants must be given the opportunity to properly bring Appellee into the proceeding if they can. See Fryckland, supra. We therefore conclude that the trial court erred in dismissing Appellants' complaint.
We do not decide whether this action may be barred by the applicable statute of limitations. Pursuant to Pa.R.C.P. 1030, the statute of limitations is an affirmative defense which must be pleaded in new matter, should Appellants successfully obtain service on Appellee. See Collins v. Park, 621 A.2d 999 (Pa.Super. 1993).
¶ 10 Order reversed, and case remanded for further proceedings. Jurisdiction relinquished.