Chappell v. Powell, 2023 Pa. Super. LEXIS 440, 2023 WL 6325000 (September 29, 2023) (Lazarus, J.)
Nichole S. Chappell appeals from the order, entered in the Court of Common Pleas of Blair County, sustaining Appellee Hannah M. Powell’s preliminary objections and dismissing Chappell’s complaint for failing to make good faith efforts to serve Powell. After careful review, we reverse and remand.
Chappell and Powell were involved in a motor vehicle accident on May 10, 2020, when Powell, attempting to make a left-hand turn directly in front of Chappell’s approaching vehicle at an intersection, “failed to slow her vehicle down or otherwise ensure traffic was clear[, and then] proceed[ed] through and enter[ed] the intersection where she collided with” Chappell. On April 25, 2022, Chappell filed a negligence complaint against Powell alleging that she sustained multiple injuries as a result of the accident. On April 28, 2022, Chappell unsuccessfully attempted to serve Powell with the complaint at a residence located at 1519 Princeton Road, Altoona. On August 22, 2022, Chappell received a letter, dated 8/15/22, from the Postmaster indicating that there was a “good C[hange] o[f] A[ddress] on file” for Powell.
On August 26, 2022, the trial court entered an “Alternative Service Order,” stating:
AND NOW, THIS 26th DAY of August, 2022, OUR REVIEW OF THE DOCKET IN THE ABOVE[-]CAPTIONED MATTER INDICATES THAT SERVICE HAS BEEN ATTEMPTED BUT NOT MADE ON THE COMPLAINT. IN LIGHT OF OUR COMMITMENT TO PROMPT AND FAIR DISPOSITION OF CIVIL CASES, YOU WILL BE GIVEN FORTY-FIVE (45) DAYS FROM THE DATE OF THIS NOTICE TO PETITION THIS COURT FOR ALTERNAT[IV]E SERVICE, UNLESS YOU ARE ABLE TO REINSTATE THE COMPLAINT (IF NECESSARY) AND PERFECT SERVICE WITHIN THIS FORTY-FIVE (45) DAY TIME FRAME.
IF SERVICE IS NOT PERFECTED BY THIS DEADLINE OR YOU DO NOT PETITION THE COURT FOR ALTERNAT[IV]E SERVICE, THE COMPLAINT WILL BE DISMISSED WITH PREJUDICE IN ACCORDANCE WITH THE POWER GIVEN TO THIS COURT UNDER RULE 1901 OF THE PENNSYLVANIA RULES OF JUDICIAL ADMINISTRATION.
On August 30, 2022, Chappell sent the Postmaster a letter asking “what Ms. Powell’s current address is” and included a self-addressed stamped envelope. See Letter, 8/30/22. Chappell filed a praecipe to reinstate the complaint on September 12, 2022; the complaint was reinstated on that date. See Pa.R.C.P. 401(b)(1). On October 5, 2022, in compliance with the trial court’s August 26, 2022 order, Chappell filed a “Motion to Serve Powell Pursuant to Pa.R.C[.]P. 430,” seeking permission to alternatively serve Erie Insurance Co. (Erie), Powell’s insurer, on behalf of Powell. See Pa.R.C.P. 430.
On November 2, 2022, the court issued an order granting Chappell’s motion for alternative service, stating that “Chappell[] may serve Erie Insurance . . . by mailing within 10 days . . . a copy of the [c]omplaint” in the matter. One day later, on November 3, 2022, Chappell served Erie with the complaint, on behalf of Powell. A sheriff’s return of service form in the record also reveals that Chappell served the complaint personally on Powell on November 15, 2022. The requested complaint in civil action (CICA) was served by the Sheriff of Indiana County upon Hannah Powell, personally, at 7919 Route 403 Hwy[.] South, Armagh, PA[,] 15290.
The court reversed dismissal of the case. To extend Chappell the opportunity, by court order, to petition the court for alternative service (which he did) and then find that she did not put forth a good-faith effort to serve Powell based on her pre-motion inactivity from the date of unsuccessful service to the date of case management/alternative service order is disingenuous. A clear reading of Rule 430 implicit requires a trial judge first to make a determination of whether petitioner has provided proof that he or she has made a good faith effort to effect service under the normal service rules before issuing an order authorizing a method of substitute service.
We conclude that the trial court erred as a matter of law in granting Powell’s preliminary objections where: (1) on August 26, 2022, the court explicitly gave Chappell 45 days to either effectuate proper service on Powell or move for alternative service; (2) Chappell moved for alternative service within 45 days of the court’s August 26, 2022 order; (3) on November 2, 2022, the court granted Chappell permission to alternatively serve Erie, Powell’s insurer, within 10 days; and (4) Chappell served Erie one day later, on November 3, 2022.
Because the trial court concluded Chappell made a good faith effort to effectuate service under normal methods as of November 2, 2022, see Deer Park, supra at 944, and Chappell fully complied with the court’s alternative service order, the trial court erred in granting Powell’s preliminary objections.15 See Bank of N.Y. Mellon v. Johnson, 2015 PA Super 174, 121 A.3d 1056 (Pa. Super. 2015) (where appellee effectuated service pursuant to “special [Rule 430] order,” appellant not entitled to have default judgment struck based on claim appellee failed to prove service of original process under normal service rules).
Order reversed. Case remanded. Jurisdiction relinquished
