Joseph Green v. Anthony Farole, D.M.D., and Anthony Farole, D.M.D., Inc.

Summary

The Pennsylvania Superior Court affirmed dismissal with prejudice of Joseph Green’s professional-negligence complaint against Anthony Farole, D.M.D., and his corporation for failure to effect proper and timely service. The court held that forwarding the complaint to the sheriff on the limitations deadline, failing to follow up, and later using a private process server did not constitute a diligent, rule-based effort under Pennsylvania service rules. The court applied Ferraro v. Patterson-Erie Corp. and held that actual notice through private service did not cure the failure to serve by sheriff.

Holdings

1. Although the statute of limitations ordinarily is an affirmative defense reserved for an answer and new matter, a plaintiff's diligent attempt or failure to attempt proper service within the limitations period is cognizable through preliminary objections alleging improper service under Pennsylvania Rule of Civil Procedure 1028(a)(1).
2. Green did not make a diligent, good-faith effort to effect timely service because he filed on the last day of the alleged limitations period, submitted technically deficient materials to the sheriff, waited more than two months without further action, and then used a private process server without ever effecting service by sheriff as required by the Pennsylvania Rules of Civil Procedure.

Questions Presented

1. Whether the trial court could address the plaintiff's lack of diligence in effecting service within the limitations period through preliminary objections under Pennsylvania Rule of Civil Procedure 1028(a)(1), even though the statute of limitations is generally an affirmative defense.
2. Whether the plaintiff made a diligent, good-faith effort to effect timely service of original process where he filed the complaint on the last day of the alleged limitations period, submitted technically deficient paperwork to the sheriff, delayed taking further action, and ultimately used a private process server rather than the sheriff.

Disposition

affirmed