Green v. Farole, 335 A.3d 771 (April 14, 2025) Stabile, J.
Judges: BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.
OPINION BY STABILE, J.
Appellant, Joseph Green, appeals from the April 9, 2024, order dismissing his complaint in professional negligence against Anthony Farole, D.M.D. and Anthony Farole D.M.D., Inc. (collectively, “Appellee”), for failure of service. We affirm.
The statute of limitations is an affirmative defense which should be reserved for an answer and new matter (see Pa.R.Civ.P. 1030(a)), a party’s diligent attempt (or lack thereof) to effect proper service within the limitations period is cognizable as a preliminary objection under Rule 1028(a)(1). In Gussom v. Teagle, 665 Pa. 189, 247 A.3d 1046 (Pa. 2021), for example, the plaintiff failed to effect service within the statute of limitations, and the defendant filed preliminary objections based on improper service. The trial court sustained the preliminary objections, and both this Court and our Supreme Court affirmed that order. Id. at 1058; see also, McCreesh v. City of Philadelphia, 585 Pa. 211, 888 A.2d 664 (Pa. 2005) (reviewing, at the preliminary objections stage, an argument that the plaintiff failed to make a diligent effort to effect service within the limitations period).
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 lacks 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.
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 office 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 Rule 400(a).
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 paperwork 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 less diligence than was evident in Ferraro. He waited until the last day of the limitations period to file the complaint, then waited more the two months after the expiration of the statute—without making any inquiries to the sheriff’s office—to engage a private process server. Unlike the plaintiff in Ferraro, Appellant never served Appellee by sheriff. For the foregoing reasons, we discern no error or abuse of discretion in the trial court’s decision to dismiss Appellant’s complaint with prejudice. Order affirmed. Judgment Entered.
• This case was properly dismissed because of failure of service of process.
• Ferraro is controlling. See Ferraro v. Patterson-Erie Corp., 313 A.3d 987 (Pa. 2024)
• Appellant did not satisfy his obligation of diligence by using a private process server to provide actual notice to Appellee.
• Ferraro held that filing the appropriate paperwork and fee with the sheriff’s office and waiting two months after the expiration of the statute of limitations to affect service by sheriff is the opposite of diligence.
• The Appellant waited until the last day of the limitations to file a complaint. They then waited more than two months after the expiration of the statute without making any inquiry to the sheriff’s office, to engage a private process server.
• The Appellant never served Appellee by sheriff.
