Sherry v. Trexler-Haines Gas, Inc.

MONTEMURO, Judge,

dissenting:

While I agree with the majority view that under the new rules Sun would be able to obtain relief through avenues other than dismissal of the joinder complaint, for the following reasons I strongly disagree that those rules apply.

The majority observes that because Sun claimed only improper joinder, rather than defective service of the joinder complaint in its preliminary objections, no claim as to service has been preserved. The problem with this conclusion is its mistaken assumption that the issuance of the complaint is sufficient to achieve joinder; that is, the inclusion of an additional party. However, the joinder process is merely commenced by means of the complaint; no joinder actually occurs until service of the complaint has been effected. See 3 Standard Pa. Practice § 14:186 (1981). See also 8 Goodrich Amram 2d § 2254(a):l (1977). “After the process to join the additional defendant has been issued, it must be served on him personally to acquire jurisdiction over his person. Otherwise joinder will not be effected and no legally effective judgement can be entered against the additional defendant.” Id. This is because “one who is not served with process does not have the status of a party to the proceeding” 62 Am.Jur.2d § 4 (1972). The notion that filing a document with the prothonotary is sufficient in and of itself to assure the proper inclusion of an additional litigant is therefore erroneous.

The governing Rule of procedure in force at the time the complaint was filed, that is Pa.R.C.P. 2254(b), allowed appellants thirty (30) days from the filing of the joinder complaint within which to accomplish service. Failing that, *339leave of court upon cause shown was required to extend time within which service was to be made. Because appellant neither made service nor obtained an extension, Sun was never actually joined. Its assertion of improper/late joinder is therefore appropriate.1 Conversely, a claim of defective service would have been at best a misnomer, since under the strictures of the applicable Rule, service was nonexistent rather than faulty. In Bandes v. Klimoski,2 260 Pa.Super. 137, 393 A.2d 1050 (1978), an en banc panel of this court found that the trial court properly dismissed the joinder of proposed additional defendants who were not served with the writ of joinder until more than four months after its issuance. See also 8 Goodrich-Amram § 2254(a):l (1977). Rule 2254 was in force at the time Bandes was decided, it governed as well when appellant’s complaint lapsed for want of service. The majority has failed to cite authority for the proposition that the subsequent promulgation of Rule 425 was sufficient to validate ex post facto a complaint which had expired two years earlier. I would analogize the operation of the Rule to that *340of a statute of limitations: the period during which the vitality of the cause exists is determined by the statute in effect at the time the action is filed. Passage of a longer statute of limitations after the cause has already expired does not serve to raise it, Lazarus-like, from extinction. To the contrary, “in additional defendant proceedings, it is the law that is in effect on the date service is to be made” which governs. Id. To achieve joinder under the rule contemporary with filing of the complaint, service was to be made on or before November 22, 1983. This is more than two years prior to the January 1, 1986 effective date of Rule 425 upon which the majority relies to legitimize eventual service. The majority seems to recognize this as an incongruity by its admission that “the result in the instant case may seem anomalous in that, from February 1984 when the sheriff marked on the service forms ‘not found’ until May 1986, appellant made no attempt to comply with the then-in-effect Rule 2254(b) to effectuate service.” (Majority Op. at 336).

Appellant’s nearly two year bout of inertia demonstrates not only gross dereliction in protecting its rights, but a total failure to exercise good faith. This latter element is crucial, since its absence violates the principle enunciated by our Supreme Court in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1977), and reiterated by this court in Bandes, that the plaintiff must do “all that is required” by the Rules governing procedure. It is not enough simply to have taken no affirmative step to frustrate service. Appellant has offered no evidence of any attempt to achieve service on appellee by alternate means, or to have discovered appellee’s true whereabouts. Given the facts of appellee’s size as one of the largest corporate entities in the Philadelphia area, and its prior business relationship with appellant as a supplier, its elusiveness is astonishing.

Both prior Rules 2070, and current Rule 430, neither of which is itself germane to this inquiry, nevertheless are attended by the same comment, which provided an illustration of what is involved in a good faith effort to locate a defendant.

*341(1) inquiries of postal authorities, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.

Appellant makes no claim of having done any of these things or others to enable it to seek an extension of time for service under Rule 2254. Nor indeed has it offered “to the lower court, or to our court, compelling reasons to excuse the obvious violation of the Rule.” Bandes at 142, 393 A.2d at 1052.

Under these circumstances, I am not persuaded that appellee should now be forced to resort to curative measures to ameliorate a situation of appellant’s making.

Accordingly, for the reasons stated above, I would affirm the Order of the trial court.

. The majority also find that the trial court improperly addressed sua sponte the "procedural question” of faulty service. I would point out that "in order to acquire jurisdiction over the person of one sought to be joined as an additional defendant, the process by which joinder is to be effected must be issued and served. The court should dismiss an additional defendant who has not been legally served with the process that effects joinder.” 3 Standard Pennsylvania Practice § 14:186 (1981).

I would also note that appellee raised in its preliminary objections, and therefore in a procedurally unacceptable manner, appellant’s violation of the statute of limitations. Blair v. Guthrie Development Corp., 305 Pa.Super. 292, 451 A.2d 537 (1982). The reinstatement of a complaint must be accomplished within the same period as was required for filing of the original complaint. 1 Goodrich Amram § 1010(b):l (1977). This appellant failed to do since, as the majority points out, the joinder action was initiated on Nov. 10, 1983, and was not reinstated until May 28, 1986.

. The majority label citation to this case inapposite, quoting a section which finds "joinder” to have been timely accomplished. A close reading of the text reveals that the term joinder is used to refer to both the document naming additional defendants, and the process by which they are incorporated into the action. Rule 2254(b), however, is clear in speaking of "commencement of the action to join,” that is institution of a process.