The opinion of the court was delivered by: Slomsky, J.
On November 2, 2008, Plaintiff Eric Voicheck was driving his 2000 Ford Ranger on Valleybrook Road in Chester Heights, Delaware County, Pennsylvania, when he suddenly lost control of the Ranger and crashed into a tree. (Doc. No. 1 at 14--15.) Plaintiff suffered multiple injuries in the accident. (Id. at 15.) His Ranger was designed and manufactured by Defendant Ford Motor Company ("Ford"). (Id. at 14.) Plaintiff alleges that his injuries were caused by the Ranger's defective seatbelt restraint and airbag system. (Id.)
On October 29, 2010, one year, eleven months, and twenty-seven days
after the accident, Plaintiff filed a Complaint against Ford in the
Court of Common Pleas of Delaware County alleging in three counts: (1)
negligence; (2) strict liability; and (3) breach of the implied
warranties of merchantability and fitness for a particular purpose.
(Id. at 13--23.) On November 8, 2010, in accordance with the
Pennsylvania Rules of Civil Procedure, Plaintiff attempted to serve
Ford at 1910 Cochran Road, Pittsburgh, Pennsylvania.*fn1
(Doc. No. 7-3 at 3; Doc. No. 10 at
2.) On November 23, 2010, the deputy sheriff who had attempted service
returned the process receipt form with a comment that Ford had "moved
in the 90's" and was no longer located at that address. (Doc. No. 7-3
Plaintiff did not make another attempt to serve Ford within the thirty-day period provided by Pennsylvania Rule of Civil Procedure 401(a). Under the Pennsylvania Rules of Civil Procedure, the original process became invalid after thirty days, and Plaintiff made no attempt to continue its validity by reissuing the writ or reinstating the Complaint until October 19, 2012, when he reinstated the Complaint.*fn2 This occurred nearly two years after filing the original Complaint. (Id.) On October 31, 2012, Plaintiff finally served the reinstated Complaint on Ford at a "newly located site" in Harrisburg, Pennsylvania. (Doc. No. 10 at 2.)
On November 20, 2012, Ford removed the case to this Court. (Doc. No. 1 at 1--11.) On December 12, 2010, Ford moved for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c), arguing that all three counts in the Complaint are barred by the statute of limitations.*fn3 (Doc. No. 7-1.) Ford asserts that because a good faith attempt to make service was not made during the nearly two years between the original attempt at service and the service made in Pittsburgh on October 19, 2012, the two-year statute of limitations for negligence and strict liability expired. Further, Ford asserts that the four-year statute of limitations for breach of an implied warranty began to run sometime in 2000, well before the original Complaint was filed, and also lapsed.*fn4
On January 11, 2013, Plaintiff filed a Response in Opposition to the Motion. (Doc. Nos. 9, 10.) On February 5, 2013, the Court held a hearing on the Motion. On February 27 and 28, 2013, the parties filed supplemental briefs. (Doc. Nos. 18, 20.) The matter is now ripe for disposition and for reasons that follow, the Court will grant Ford's Motion for Judgment on the Pleadings.
"After the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "A motion for judgment on the pleadings is a procedural hybrid of a motion to dismiss and a motion for summary judgment." Westport Ins. Corp. v. Black, Davis & Shue Agency, Inc., 513 F. Supp. 2d 157, 162 (M.D. Pa. 2007). "To succeed on a motion under Rule 12(c), 'the movant [must] clearly establish  that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.'" Id. at 163 (quoting Hayes v. Cmty. Gen. Osteopathic Hosp., 940 F.2d 54, 56 (3d Cir. 1991)).
"When deciding a motion for judgment on the pleadings pursuant to [Federal Rule of Civil Procedure] 12(c), the Court applies the same standard as that on a motion to dismiss pursuant to Rule 12(b)(6)." Chirik v. TD BankNorth, N.A., No. 06--04866, 2008 WL 186213, at *5 (E.D. Pa. Jan. 15, 2008) (citing Turbe v. Gov't of the Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991)). "The Court must accept as true all well-pleaded allegations . . . and draw all reasonable inferences therefrom in favor of the nonmoving party." Mobley v. Tarlini, 641 F. Supp. 2d 430, 437 (E.D. Pa. 2009) (citing Consol. Rail Corp. v. Portlight Inc., 188 F.3d 93, 94 (3d Cir. 1999)). "Similarly, as in a 12(b)(6) motion, the Court may look only to the facts alleged in the pleadings and any attachments." Id. However, "[e]xhibits attached to a pleading may be considered on a 12(c) motion, since under Rule 10(c), '[a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.'" Id. (quoting Fed. R. Civ. P. 10(c)).
A.Negligence and Strict Liability
Under Pennsylvania law, a cause of action for injuries caused by negligence or a strict liability tortious act must be commenced within two years from the date of injury. 42 Pa. Cons. Stat. § 5524. "An action may be commenced by filing with the prothonotary . . . a complaint." Pa. R. Civ. P. 1007. "Original process shall be served within the Commonwealth within thirty days after . . . the filing of the complaint." Pa. R. Civ. P. No. 401(a). "If service within the Commonwealth is not made within the time prescribed by subdivision (a) of this rule . . . the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by . . . reinstating the complaint . . . ." Pa. R. Civ. P. 401(b)(1). "[A] complaint [may be] reinstated at any time and any number of times." Id. 401(b)(2).
"Once an action is commenced by . . . complaint the statute of limitations is tolled only if the plaintiff then makes a good faith effort to effectuate service." Englert v. Fazio Mech. Servs., Inc., 932 A.2d 122, 124 (Pa. Super. Ct. 2007). A plaintiff bears the burden of establishing that he or she made a good faith effort to serve process on a defendant. Miller v. Klink, 871 A.2d 331, 336 (Pa. Commw. Ct. 2005). Action sufficient to constitute a good faith effort to serve process on a defendant is to be assessed on a case-by-case basis. Moses v. T.N.T Red Star Exp., 725 A.2d 792, 796 (Pa. Super. Ct. 1999). Determining whether a plaintiff acted in good faith is "in the sound discretion of the trial court." McCreesh v. City of Philadelphia, 888 A.2d 664, 672 (Pa. 2005). "Simple neglect and mistake," or "conduct that is unintentional that works to delay the defendant's notice of the action may constitute a lack of good faith on the part of the plaintiff." Englert, 932 ...