Monday, October 29, 2018

A Primer on Joining and Serving Additional Defendants

Lackawanna County Courthouse

In the medical malpractice case of Mayer v. Delserra, No. 17–CV-03968 (C.P. Lacka.  Co. Oct. 5, 2018 Nealon, J.), the trial court in Lackawanna County addressed objections to a Defendant’s service of a third party Complaint upon an Additional Defendant. 

More specifically, the Additional Defendant who was served with the Joinder Complaint filed Preliminary Objections challenging the service of original process of the Joinder Complaint as improper after the original Defendant-hospital attempted to serve that Additional Defendant via certified mail at an incorrect office address.  

The joined Additional Defendant also asserted that the Joinder Complaint should be dismissed since the statute of limitations had expired.  

The non-moving original Defendant-hospital argued in response that the service of process by certified mail was proper and that the Additional Defendant had waived the right to object to the allegedly defective service by virtue of the Additional Defendant’s attorney’s attendance at the two (2) depositions that have been conducted in the case to date.  

After reviewing the Pennsylvania Rules of Civil Procedure pertaining to the service of a Joinder Complaint upon a Pennsylvania Additional Defendant, the court noted that these Rules required that such service be effectuated by the Sheriff hand-delivering the original process to the Additional Defendant or an appropriate person at that Defendant’s residence or business.  An exception to those Rules was that service could be completed by the Defendant's attorney agreeing to accept service.

Here, the court set aside the improper service in this matter and directed the Defendant-hospital to reinstate the Joinder Complaint and serve the same properly.  

In so ruling, Judge Nealon found that the attendance of the Additional Defendant’s attorney at previously scheduled depositions, which depositions occurred after the Preliminary Objections at issue had already been filed, did not constitute such action on the merits of the case by that Additional Defendant so as to waive the right to object to defective service.  Rather, the court noted that such attendance at the deposition instead served to cure any prejudice that may have resulted from the improper service and the Additional Defendant’s belated entry into the case.  

The court further ruled that, since the applicable statute of limitations period relative to the Defendant-hospital’s contribution and indemnification claims had not yet begun to run, the proper remedy for the defective service was to simply set it aside and allow the joining party to attempt to properly serve that Additional Defendant.

Anyone wishing to review this case may click HERE.

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