In this matter, the case originally was brought in the state
court but was removed to federal court.
The Federal Court noted that, even though initial service of process may
have been improper in a matter, under 28 U.S.C.§1448, a Plaintiff is permitted
to reserve the right to correct such deficiencies once a case has been removed
to Federal Court.
Although the Plaintiff did reserve such rights, the court
found that dismissal was still proper on the grounds of improper service of
process.
More specifically, the court ruled that, under Pennsylvania
law, Plaintiff’s failure to serve the Defendant properly within ninety (90)
days of a filing a Praecipe for Writ of Summons precluded the Writ from tolling
the statute of limitations. Given that
the two (2) year tort statute of limitations had expired, the court found that
all of the Plaintiff’s products liability and tort claims must be dismissed.
In its Opinion, the court noted that a defective attempt of
service at the last minute to the wrong address did not amount to proper service,
or even a good faith attempt at service.
The court emphasized that the Defendant never received actual notice of
the suit until after the statute of limitations had expired.
On the breach of warranty claims, the court noted that only
the filing of a actual Complaint, and not the defective service of the Writ,
could serve to toll the four (4) year statute of limitations applicable to that
type of cause of action.
In this matter, the Complaint did not allege the date that
the product was delivered and, as such, the Complaint was deemed to be
deficient in pleading the warranty claims.
Accordingly, the court dismissed the breach of warranty claim without
prejudice to the Plaintiff’s right to amend the Complaint with allegations of a
delivery of the product within the four (4) year period.
Anyone wishing to review a copy of this decision may click
this LINK. The court's companion Order can be viewed HERE.
I send thanks to Attorney James M. Beck of the Philadelphia
office of the law firm of Reed Smith for bringing this case to my attention.