Brown v. Verizon Pennsylvania Inc.

Filing 15

ORDER granting motion to dismiss for improper service 4 . (See order for complete details.) Signed by Honorable Christopher C. Conner on 10/17/12. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LOUIS D. BROWN, Jr.,
Plaintiff,

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:
:
v.
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VERIZON PENNSYLVANIA, INC., :
Defendant
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:

Civil Action No. 1:12-cv-1381

(Judge Conner)

ORDER
AND NOW, this 17th day of October, 2012, upon consideration of defendant
Verizon Pennsylvania, Inc.’s (“Verizon”) motion (Doc. 4) to dismiss for failure to
effect proper service of process, and plaintiff Louis D. Brown, Jr.’s (“Brown”)
response thereto (Doc. 9), and the court recognizing that Brown initiated this action
in the Dauphin County Court of Common Pleas by filing a writ of summons on
October, 13, 2010, which writ was served by the sheriff pursuant to Pennsylvania
Rule of Civil Procedure 400 (a), and the court noting that Brown subsequently filed
a complaint on June 15, 2012, in the Dauphin County Court of Common Pleas1
which complaint Brown mailed to counsel for Verizon on June 28, 2012, and the
court observing that,

1

Verizon removed this case to federal court on July 17, 2012 (Doc. 1). Federal
Rule of Civil Procedure 4(e)(1) states that “an individual . . . may be served in a
judicial district of the United States by [] following state law for serving a summons
in an action brought in courts of general jurisdiction in the state where the district
court is located or where service is made . . . .” Fed. R. Civ. Pro. 4(e)(1). In the
instant case, the writ of summons was issued and the complaint filed before this
action was removed; therefore, the court will analyze the applicable state law
governing service of process.

If an action is commenced by writ of summons and a complaint is
thereafter filed, the plaintiff instead of reissuing the writ may treat the
complaint as alternative original process and as the equivalent for all
purposes of a reissued writ, reissued as of the date of the filing of the
complaint. Thereafter the writ may be reissued, or the complaint may
be reinstated as the equivalent of a reissuance of the writ, and the
plaintiff may use either the reissued writ or the reinstated complaint as
alternative original process[,]
Pa. R. Civ. Pro. 401(b)(5), but the court also noting that, “[a] reissued, reinstated or
substituted writ or complaint shall be served within the applicable time prescribed
in subdivision (a) of this rule[,]” Pa. R. Civ. Pro. 402(b)(4), which provides
“[o]riginal process must be served within the Commonwealth within thirty days
after the issuance of the writ or the filing of the complaint[,]” Pa. R. Civ. Pro.
402(a), and the court concluding that uncertified mail is not a proper form of service
under either state or federal law, see Pa. R. Civ. Pro. 403 (if original process is
authorized by mail, it must be by a form of mail requiring a signed receipt by the
defendant) (emphasis supplied); Fed. R. Civ. Pro. 4 (not authorizing service by
mail), therefore, it is hereby ORDERED, the motion (Doc. 4) to dismiss for improper
service is GRANTED.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge