Harris v. Couttien

• Court: Superior Court of Pennsylvania
• Citation: 261 A.3d 527
• Docket Number: No. 1008 EDA 2020,1008 EDA 2020
• Parties: Hal H. HARRIS and Terrence A. Colbert v. Jordan Victoria COUTTIEN and Leticia Romain Couttien Appeal of: Hal H. Harris
• Decision Date: 13 August 2021

261 A.3d 527

Hal H. HARRIS and Terrence A. Colbert
v.
Jordan Victoria COUTTIEN and Leticia Romain Couttien

Appeal of: Hal H. Harris

No. 1008 EDA 2020

Superior Court of Pennsylvania.

Argued June 22, 2021
Filed August 13, 2021

Hal H. Harris, appellant, pro se.

Elizabeth J. Anderson, Hawley, for appellee.

BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY DUBOW, J.:

261 A.3d 529

Appellants, Hal H. Harris and Terrance A. Colbert, appeal from the trial court's March 19, 2020 Order dismissing their Complaint due to improper service. They aver that the court erred by finding that the improper service prejudiced Appellees. After careful review, we vacate and remand.

On September 23, 2019, Appellants pro se filed a Complaint alleging that Appellees committed Wrongful Use of Civil Proceedings, Abuse of Process, Malicious Prosecution, and Civil Conspiracy. On September 24, 2019, Appellants served the Complaint upon Appellees via U.S. Mail.

Appellees filed Preliminary Objections ("PO's") to Appellants' Complaint arguing, inter alia , that Appellants violated the Pennsylvania Rules of Civil Procedure ("Rules") by serving their Complaint by U.S. Mail instead of by sheriff.

On March 19, 2020, following oral argument, the court sustained Appellees' PO's and dismissed Appellants' Complaint for failure to perfect service over Appellees.¹

Appellants pro se timely filed a Notice of Appeal and complied with Pa.R.A.P. 1925. The trial court filed a responsive Rule 1925(a) Opinion.

Appellants raise several issues on appeal, including the following:

Did [the] trial court commit [an] error of law [or] abuse its[ ] discretion by dismissing [Appellants'] Complaint in contravention of [the] Pennsylvania Supreme Court's holding in McCreesh v. City of Philadelphia, [585 Pa. 211] 888 A.2d 664 (Pa. [ ] 2005), when documentary evidence proved [Appellants'] Complaint was timely served on both [ ]Appellees?

Appellant's Br. at 3 (unnecessary capitalization omitted).²

We review an order sustaining PO's to service of process and dismissing an action pursuant to a de novo standard of review and plenary scope of review. Sawyers v. Davis , 222 A.3d 1, 5 (Pa. Super. 2019). We consider the evidence in the light most favorable to the nonmoving party. Id. We may only affirm if the case is clear and free from doubt. Baker v. Cambridge Chase, Inc. , 725 A.2d 757, 764 (Pa. Super. 1999).

Rule 400 requires, with limited exception not applicable here, that "original process shall be served within the Commonwealth only by the sheriff." Pa.R.C.P. 400(a). The Rule, however, does not require the trial court to dismiss a complaint for defective service. Rather, when a plaintiff fails to perfect service but has supplied the defendant with actual notice of the litigation, the court should only dismiss the complaint "where plaintiffs' failure to comply with the Rules of Civil

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