United States District Court, E.D. Pennsylvania
January 6, 2004.
ANTHONY JOHNSON, Plaintiff
AQUEELAH JACKSON, SOJOURNER RUDISILL, UNITED STATES OF AMERICA, and UNITED STATES ARMY, Defendants
The opinion of the court was delivered by: CYNTHIA RUFE, District Judge
This is a personal injury action arising from a March 11, 2002
automobile accident. Plaintiff initiated suit in this Court on October
16, 2003. Defendants United States of America and United States Army have
responded to the Complaint. Plaintiffs have been unable to effect service
on Defendants Sojourner Rudisill and Aqueelah Jackson. Presently before
the Court are Plaintiff's Petitions to Allow Service of Process pursuant
to Pennsylvania Rule of Civil Procedure 430(a). For the reasons below,
the Petitions are denied.
Under Federal Rule of Civil Procedure 4(e), service may be effected
pursuant to the law of the state in which the district court sits. Under
Pennsylvania law, in an action commenced in the First Judicial District
(i.e., Philadelphia County, where this Court is located), original
process may be served within the county by the sheriff or a competent
adult. Pa. R. Civ. P. 400.1(a)(1). "If service cannot be made" under Rule
400.1, "the plaintiff may move the court for a special order directing
the method of service." Pa. R. Civ. P. 430(a). Such a motion must be
accompanied by "an affidavit stating the nature and extent of the
investigation which has been made to determine the
whereabouts of the defendant and the reasons why service cannot be
Before requesting an alternative method of service, a plaintiff must
make a "good faith" effort to locate the defendant and properly
effectuate service, Clayman v. Jung, 173 F.R.D. 138, 139 (E.D.Pa. 1997).
Alternative methods of service are an "option of last resort."
Witherspoon v. City of Philadelphia, 768 A.2d 1079, 1089 n.3 (Pa. 2001)
(Newman, J., dissenting). The commentary accompanying Rule 430(a) lists
examples of the types of procedures contemplated by the Rule, but the
list is not exhaustive. Deer Park Lumber. Inc. v. Major, 559 A.2d 941,
946 (Pa. Super. 1989). At minimum, it requires more than a "mere paper
search." Id. Thus, good faith efforts might include (1) inquiries of
postal authorities, (2) inquiries of relatives, neighbors, friends and
employees of the defendant, and (3) examinations of local telephone
directories, voter registration records, local tax records, and motor
vehicle records. See Pa. R. Civ. P. 430(a), Note.
Many of Plaintiff's efforts to locate Jackson and and Rudisill reflect
the kind of procedures suggested by the Rule 430(a) commentators.
Nonetheless, because it appears on this record that Plaintiff has left
several stones unturned, the Court will deny the Petitions without
prejudice to re-file.
Plaintiff made the following efforts to locate Defendant Jackson: (1)
On October 27, 2003, a professional process server attempted personal
service at Jackson's address listed on the police accident report, Green
way Avenue in Philadelphia. That property was vacant. (2) On October 29,
2003, Plaintiff requested address information about Jackson from the
Postmaster, who responded that Jackson had moved but left no forwarding
address. (3) Plaintiff searched the Coles Telephone Directory, which
lists residents by street address. Jackson's name did not appear in the
listing for the Greenway Avenue address. (3) On October 29, 2003,
Plaintiff requested information about
Jackson from the Superintendent of Elections, who responded that
one Aqueelah Jackson lived on Walnut Street in Philadelphia. Plaintiff
did not contact this individual because her date of birth did not match
the date of birth on the police accident report. (4) On October 29, 2003,
Plaintiff requested basic information about Jackson from the Pennsylvania
Department of Transportation, who replied that the information requested
does not exist. (5) On December 2, 3 and 9, 2003, a private investigator
went to the Greenway Avenue residence attempting to locate Jackson. There
was no answer at the residence, neighbors did not know Jackson, and a
passerby told him that someone named "Stacey" lives at the residence.
Prior to this litigation, Plaintiffs counsel learned from Jackson's
mother that Defendant Rudisill also lived at the Greenway Avenue
residence. Plaintiff made the following efforts to locate Defendant
Rudisill: (1) On October 27, 2003, a professional process server
attempted personal service at the Greenway Avenue residence and found
that residence vacant. (2) On October 24, 2003, Plaintiff requested
address information about Rudisill from the Postmaster, who responded
that Rudisill had moved but left no forwarding address. (3) Plaintiff
searched the Coles Telephone Directory. Rudisill's name did not appear in
the listing for the Greenway Avenue address. (4) On October 24, 2003,
Plaintiff requested information about Rudisill from the Superintendent of
Elections, who responded that no current voter registration record exists
in her/his name. (5) On October 29, 2003, Plaintiff requested basic
information about Rudisill from the Pennsylvania Department of
Transportation, who replied that the information requested does not
From the evidence submitted with Plaintiffs Petitions, it appears that
other avenues exist whereby Plaintiff may yet locate these Defendants.
Some of these methods are suggested by
the Note to Rule 403, other courts, and the record before this Court: (1)
searching local tax records; (2) interviewing the Aqueelah Jackson
residing on Walnut Street in Philadelphia;*fn1 (3) seeking assistance
from Jackson's automobile insurer, American Insurance Company, which is
listed on the police accident report, along with Jackson's insurance
policy number; (4) calling Jackson's telephone number listed on the police
accident report; (5) talking to Jackson's mother, who previously assisted
Plaintiff's counsel with efforts to locate Rudisill; (6) searching local
telephone directories; (7) seeking assistance from Rudisill's insurer,
State Farm, who previously corresponded with Plaintiffs counsel on
October 24, 2002 (see Ex. A).
Plaintiff seeks an Order permitting service of process on Jackson and
Rudisill by ordinary mail and certified mail at the Greenway Avenue
residence. However, before permitting this form of service, the Court is
of the opinion that a more extensive search for these Defendants is
warranted. Alternative service is only appropriate when service "cannot
be made" under the applicable Rule, and only as a last resort. Pa. R.
Civ. P. 430(a) (emphasis added). Accordingly, until the Court is
satisfied that service under Rule 400.1(a) cannot be made, alternative
service will not be permitted.
An appropriate Order follows.
AND NOW, this 6th day of January, 2004, upon consideration of the
Petition to Allow Service on Aqueelah Jackson [Doc. # 6] and the Petition
to Allow Service on Sojourner Rudisill [Doc. # 7], and for the reasons
set forth in the attached Memorandum Opinion, it is hereby ORDERED that
the Petitions are DENIED WITHOUT PREJUDICE.
It is so ORDERED.