Court Denies Preliminary Objections Based on Statute of Limitations Issues Where Plaintiff Made Good Faith Effort to Complete Service

In the case of Rosenwald v. Finkelstein, No. 4813-CV-2022 (C.P. Monroe Co. April 17, 2023 Williamson, J.), the court overruled Preliminary Objections filed by a Defendant to a Plaintiff’s Complaint alleging lack of proper service and the expiration of the statute of limitations.

This case arose out of a motor vehicle accident.

The Plaintiff admitted that they mistakenly attempted to complete service via a process servicer in reliance upon Pa. R.C.P. 400.1, instead of Pa. R.C.P. 400.

The court noted that Pa. R.C.P. 400.1 allows service of original process in the First Judicial District (Philadelphia) by the sheriff or a competent adult.

The court noted that, after realizing their mistake, the Plaintiff promptly filed a Praecipe to Reinstate the Complaint and engaged the local county Sheriff’s Office in Monroe County to make personal service which was completed.

Relative to the Preliminary Objections, the court first noted that the central focus of the Defendant’s Preliminary Objections was the expiration of the statute of limitations. Judge Williamson initially noted that the defense of the expiration of the statute of limitations is an affirmative defense that is not generally properly raised during Preliminary Objections.

Regardless, the court went on to review the merits of the Preliminary Objections. These objections were denied given that the Plaintiffs sought to remedy their error within days of the filing of the Preliminary Objections.

More specifically, the court found that the procedural history in the case did not suggest a course of conduct by the Plaintiff that was meant to stall the action. Rather, the record revealed that the Plaintiff had made a simple mistake and corrected the same promptly. 

The court also noted that the Plaintiffs had informed the Defendant’s insurer of the accident so that the Defendant was able to begin working on the defense of the case. 

As such, the court found that the Defendant did not suffer any harm.

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Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 16, 2023).