United States District Court, E.D. Pennsylvania
March of 2017, Plaintiff Roseann Iaconelli slipped and fell
on an unlevel portion of asphalt. Plaintiff suffered numerous
injuries as a result of her fall. She filed a personal injury
suit against the entities that manage and control the
property, Pennsylvania CVS Pharmacy, LLC (“CVS”)
and BT Washington, Inc. Defendant BT Washington filed a
motion to dismiss Plaintiff's claims on the grounds that
it did not receive proper service and that it does not, in
fact, own the property in question. For the reasons that
follow, BT Washington's request will be denied.
Washington moves for dismissal under Federal Rule of Civil
Procedure Rule 12(b)(2), (5), and (6). The court must accept
all well-pleaded facts in the complaint as true and make all
inferences in the non-moving party's favor. Miller
Yacht Sales, Inc. v. Smith, 384 F.3d 93, 97 (3d Cir.
2004). Rule 12(b)(2) allows the court to dismiss a complaint
for lack of personal jurisdiction. Under Rule 12(b)(5), the
court can dismiss claims where service of process was
insufficient. The plaintiff bears the burden of establishing
proper service. Grant Entm't Grp., Ltd. v. Star Media
Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993) (citations
omitted). Dismissal under Rule 12(b)(6) is appropriate only
if plaintiff fails to state a claim upon which relief can be
granted. The claim must be “plausible on its
face” and “raise a right to relief above the
speculative level.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556, 670 (2007). In deciding the
motion, the court may look only to “the facts alleged
in the complaint and its attachments, matters of public
record, and undisputedly authentic documents if the
complainant's claims are based upon these
documents.” Pension Benefit Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993).
Sufficiency of Plaintiff's Service of Process
initially filed her complaint in the Philadelphia Court of
Common Pleas and served process on the defendants pursuant to
Pennsylvania state law. Pa. R. Civ. P. 404. See also
Fed. R. Civ. P. 4(e) (permitting service to be made according
to the state law of the jurisdiction where the district court
is located). One way to serve process is through “any
form of mail requiring a receipt signed by the defendant or
his authorized agent.” Pa. R. Civ. P. 403. Plaintiff
attempted mail service in this suit by sending the complaint
via certified mail to a New York City address for BT
Washington it found on the Philadelphia Office of Property
Assessment's filing for the CVS property in question. An
individual named Jeff Santana signed for the complaint.
Washington claims it does not maintain an office at the
listed New York City address and that it did not know about
this lawsuit until it was recently contacted by its
co-defendant. It thus alleges that the complaint must be
dismissed due to insufficient service and lack of personal
jurisdiction. See Lampe v. Xouth, Inc., 952 F.2d
697, 701 (3d Cir. 1991) (explaining that personal
jurisdiction is acquired “over a defendant when the
plaintiff serves the defendant with the complaint in a manner
specified by Rule 4 of the Federal Rules of Civil
Plaintiff mailed notice to the wrong address, service was not
properly made. But that does not necessarily mean the
complaint must be dismissed. A good faith effort at service
may suffice. Pa. R. Civ. P. 401; McCreesh v. City of
Philadelphia, 888 A.2d 664, 668 (Pa.
question of what constitutes good faith “is a matter to
be assessed on a case by case basis.” Englert v.
Fazio Mechanical Servs., Inc., 932 A.2d 122, 124 (Pa.
Super. 2007) (internal quotations omitted). Determining the
existence of good faith “lies within the sound
discretion of the trial court.” McCreesh, 888
A.2d at 672. Pennsylvania courts are to “dismiss only
those claims where plaintiffs have demonstrated an intent to
stall the judicial machinery or where plaintiffs' failure
to comply with the Rules of Civil Procedure has prejudiced
defendant.” Id. at 674.
the cases where courts have dismissed the plaintiff's
claim due to a lack of good faith involve more serious
shortcomings or egregious missteps than the ones evinced by
Plaintiff. For example, a plaintiff who used the wrong
address to serve process, despite being in a landlord-tenant
relationship with the defendant and thus having ready access
to the correct address, did not act in good faith. Callan
v. Patel, 2018 WL 4635962, at *7 (M.D. Pa. Sept. 27,
2018). In another instance, the plaintiff's process
server tried once to serve the complaint but was unsuccessful
because no agent was present. It made no follow-up attempts.
Witherspoon v. City of Philadelphia, 768 A.2d 1079,
1081 (Pa. 2001).
Plaintiff used the address that BT Washington itself
presumably provided to the Philadelphia Office of Property
Assessment. She properly sent the complaint via certified
mail, as permitted under the Pennsylvania rules, and received
confirmation of acceptance. Admittedly, Plaintiff could have
taken steps to actively confirm that the person who signed
for the complaint was an agent of BT Washington. See
Furin v. Reese Teleservices, Inc., 2008 WL 5068955, at
*1 (W.D. Pa. Nov. 24, 2008) (faulting plaintiff for failing
to confirm that an authorized agent signed for the
complaint). But that she arguably could have done more does
not mean she did not act in good faith. There is no evidence
that Plaintiff engaged in behavior “which serves to
stall in its tracks the legal machinery [she] has just set in
motion.” Lamp v. Heyman, 366 A.2d 882, 478
(Pa. 1976). Nor has BT Washington alleged that it was
prejudiced by Plaintiff's shortcomings.
McCreesh, 888 A.2d at 674. The court thus declines
to exercise its discretion in this case to dismiss the
complaint and “punish a plaintiff for technical
missteps” made in its service of process efforts.
Plausibility of Plaintiff's Complaint
Washington also asserts that Plaintiff failed to state a
claim upon which relief can be granted because the company
did not own the property in question at the time of the
accident. To support its assertion, it attached a purported
deed of sale granting the ...