JOSEPH GREEN v. ANTHONY FAROLE, D.M.D., AND ANTHONY FAROLE, D.M.D., INC.
No. 1483 EDA 2024
IN THE SUPERIOR COURT OF PENNSYLVANIA
APRIL 14, 2025
2025 PA Super 84
J-S43029-24. Appeal from the
BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.
FILED APRIL 14, 2025
Appellant, Joseph Green, appeals from the April 9, 2024 order dismissing his complaint in professional negligence against Anthony Farole, D.M.D. аnd Anthony Farole D.M.D., Inc. (collectively, “Appellee“), for failure of service. We affirm.
Appellant alleges that Appellee committed malpractice during a dental implant procedure Appellee performed on August 14, 2020. Complaint, 4/27/2023, at ¶¶ 6-7. According to the complaint, Appellant first became aware of Appellee‘s malpractice on April 27, 2021, during an appointment with another doctor. Id. at ¶ 8. Appellant filed this complaint on April 27, 2023—exactly two years after he claims he learned of Appellee‘s malpractice and thus the last possible date under the statute of limitations, assuming Appellant properly invoked the discovery rule.1 Appellant forwarded the complaint, with payment, to the Montgomery County Sheriff‘s Office for service on that date. Appellant took no further action until June 9, 2023, when he filed a praecipe to reinstate his complaint. On July 5, 2023, Appellant received correspondence from the Montgomery County Sheriff‘s Office informing him that his complaint was not served beсause of errors in the way he submitted it—because there are two named defendants, the sheriff‘s office required a form for each defendant.2 Also on July 5, 2023, Appellant filed another praecipe to rеinstate the complaint and engaged a private process server. Appellees were served by a private server on July 10, 2023. Appellant never effected service by sheriff, as required under
On August 2, 2023, Apрellee filed preliminary objections alleging, among other things, improper service of the complaint pursuant to
Appellant‘s argument on appeal is twofold. First he claims the trial court erred in entertaining Appellees’ statute of limitations argumеnt during the pleading stage. Second, he argues that the trial court was wrong in determining that Appellant did not make a diligent effort to effect service of the complaint.
Appellant‘s first argument does not merit relief. While he is correct that the statute of limitations is an affirmative defense which should be reserved for an answer and new matter (see
We now turn to the sufficiency of Appellant‘s efforts in this case. Our Supreme Court recently addressed this issue in Ferraro v. Patterson-Erie Corp., 313 A.3d 987 (Pa. 2024):
Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed. Importantly, without valid service, a court laсks personal jurisdiction of a defendant and is powerless to enter judgment against him or her[.] Validity of service is essential, and failure to perfect service is fatal to a lawsuit.
Id. at 999 (internal citations and quotatiоn marks omitted). Service of process also notifies the defendant that it is a party to a lawsuit and must defend itself. Id. To that end, the purpose of the statute of limitations is to “protect defendants from stale сlaims.” Gussom, 247 A.3d at 1048. Thus, in some circumstances, the trial court may dismiss a complaint where the plaintiff fails to make a diligent attempt to effect service of process.
[A] trial court has discretion to dismiss a complаint when a plaintiff fails to offer proof that she diligently attempted to serve process on a defendant in a timely manner and there is no evidence to indicate that the defendant had actual notice of the commencement of the action in the relevant time frame, regardless of whether the plaintiff acted or failed to act intentionally.
The Ferraro Court clarified that actual notice must come from an attempt to serve process in accordance with the
In Ferraro, the plaintiff suffered a slip and fаll and filed her complaint on March 4, 2020, more than five months before the statute of limitations would have expired. Id. at 990. As in this matter, the plaintiff filed paperwork with the local sheriff‘s office to have the complaint filed but, for reasons unexplained, the sheriff‘s office did not do so. There was no dispute, however, that the plaintiff provided the proper fee, paperwork, and instructions to the sheriff. Id. at 994. At some point after the complaint lapsed and without filing a praecipe to reinstate it, the plaintiff had the complaint served on the defendant by a private process server. Finally, more than two months after the stаtute had run, the plaintiff reinstated the complaint and had the sheriff serve it on the defendant. Id. at 990. The trial court denied the defendant‘s motion for judgment on the pleadings, and this Court affirmed.
Our Supreme Court reversed. The plaintiff argued that she should not be punished for technical missteps where, because of the plaintiff‘s efforts, the defendant had actual notice of the complaint. Id. at 997. The Supreme Court disagreed. Forwarding the сomplaint with payment to the sheriff was not a good faith effort to serve process. The plaintiff did not inquire whether the defendant was successfully served until eight months after the filing of the complaint and more than two months after the expiration of the statute of limitations. Id. at 1009. The plaintiff produced no evidence that restrictions arising from the COVID-19 pandemic delayed the sheriff‘s services. Id. at 1010. One effort at service prior to thе expiration of the statute and no further effort for more than two months afterward was “the opposite of diligence.” Id. Significant for present purposes is the Ferraro Court‘s holding that providing a defendant with actual notice through the use of a private process server does not satisfy the plaintiff‘s obligation. Id. at 1011. Rather, as explained above, a good faith effort requires diligent but imperfect attempts at rule-based service of process. Id.
Ferraro is controlling here. Appellant filed the complaint on April 27, 2023, the day the statute expired. As in Ferraro, Appellant forwarded the complaint and payment to the Sheriff, though this case is distinct from Ferraro in that the instant record demonstrates that Appellant‘s filing with the sheriff was technically deficient. Appellant took no further action until well after the statute expired, filing a praecipe to reinstate the complaint on June 9, 2023. On July 5, 2023, upon receipt of notice from the sheriff‘s officе that service was not completed, Appellant arranged for service to be made by a private process server, but Appellant never again attempted to effect service by Sheriff in accordance with
Per Ferraro, Appellant did not satisfy his obligation of diligence by using a private process server to provide actual notice to Appellee. Further, Ferraro held that filing the appropriate paрerwork and fee with the sheriff‘s office and then waiting more than two months after the expiration of the statute of limitations to effect service by sheriff is the “opposite of diligence.” Instantly, Appellant exhibited even
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 4/14/2025