           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Williams,                             :
                             Appellant        :
                                              :
              v.                              :    No. 1402 C.D. 2019
                                              :    Submitted: January 24, 2020
Kyle A. Russell, Amanda Benner,               :
and Dr. Megan                                 :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                       FILED: April 13, 2020

              Anthony Williams, an inmate at the Lehigh County Jail, representing
himself, appeals an order of the Court of Common Pleas of Lehigh County (trial
court) that dismissed his petition for writ of habeas corpus, without prejudice, for
improper service. Williams contends that the trial court erred because he served his
petition by First-Class Mail, which he believes is sufficient. Discerning no merit to
this argument, we affirm.
              On June 4, 2019, Williams filed a petition for writ of habeas corpus
against Kyle A. Russell, Amanda Benner and Dr. Megan (collectively, Defendants).1
The petition alleged that upon his commitment to the county jail, Williams informed
medical staff that he suffered from neck and back problems caused by a 2010 motor
vehicle accident, for which he needs muscle relaxants. The county jail refused his

1
 Kyle A. Russell is the Warden of Lehigh County Jail (Warden Russell), and Amanda Benner and
Dr. Megan are employees of PrimeCare Medical, Inc., the medical provider at Lehigh County Jail.
Williams erroneously identified Megan Hughes as “Dr. Megan” in the petition for writ of habeas
corpus. Trial Court Order, 9/6/2019, at 1.
request for this medication and assigned him to a top bunk bed without a ladder. The
climb onto the top bunk aggravated his back pain.
                The petition also alleged that on March 30, 2019, he spoke to Dr.
Megan about having to climb onto the top bunk and how doing this caused him
“extreme pain[.]” Petition at 2, ¶10; Original Record (O.R.) Item No. 3 at 2. Without
conducting “any examination,” she denied his request for a bottom bunk assignment.
Petition at 2, ¶10; O.R. Item No. 3 at 2. Williams filed grievances regarding his
medical care and bunk assignment, but Warden Russell denied the grievances. The
petition sought the following relief:

                (1) Order [Defendants] to grant [him] bottom bunk status.

                (2) Order that ladders be put on the bunk beds in accord[ance
                    with the Americans with Disabilities Act.2]

                (3) Order medical treatment be given to [him].

Petition at 4-5; O.R. Item No. 3 at 4-5. Williams served the petition on the named
defendants by First-Class Mail.
                Defendants filed preliminary objections, asserting, inter alia, improper
service of process. On September 6, 2019, the trial court sustained the preliminary
objections and dismissed the petition for lack of jurisdiction. In its opinion filed
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), PA. R.A.P. 1925(a),
the trial court explained that the petition was, “in actuality, a civil complaint.”
1925(a) Opinion at 1; C.R. Item No. 23 at 1. Under the Pennsylvania Rules of Civil
Procedure, a civil complaint must be served personally by a sheriff, but Williams
served the petition by First-Class Mail. On this basis, the trial court concluded that
service was improper.

2
    42 U.S.C. §§12101-12213.
                                            2
               On appeal,3 Williams raises two arguments. First, he argues that
Pennsylvania Rule of Criminal Procedure 576(B)4 controls the service of habeas
petitions, and it allows service by First-Class Mail. Second, he argues that the trial
court erred in dismissing his petition because Defendants had actual knowledge of
his filing and were not prejudiced by the lack of personal service.
               Service of process is the mechanism “by which a court obtains
jurisdiction over a defendant.” City of Philadelphia v. Berman, 863 A.2d 156, 160


3
  “Where a trial court dismisses a complaint based on preliminary objections, this Court’s review
is limited to determining whether the trial court committed an error of law or an abuse of
discretion.” Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014). “When considering
preliminary objections this Court must consider as true all well-pled material facts set forth in the
complaint and all reasonable inferences that may be drawn from those facts.” Id.
4
  This Rule states, in pertinent part, as follows:
        (B) Service.
                                                   ***
               (2) Service on the parties shall be by:
                     (a) delivery of a copy to a party’s attorney, or the
                     party if unrepresented; or
                     (b) personal delivery of a copy to the party’s
                     attorney’s employee at the attorney’s office; or
                     (c) mailing a copy to a party’s attorney or leaving
                     a copy for the attorney at the attorney’s office; or
                                               ***
                     (e) sending a copy to an unrepresented party by
                     certified, registered, or first class mail addressed to
                     the party’s place of residence, business, or
                     confinement; or
                     (f) sending a copy by facsimile transmission or
                     other electronic means if the party’s attorney, or the
                     party if unrepresented, has made a written request for
                     this method of service for the document; or
                     (g) delivery to the party’s attorney, or the party if
                     unrepresented, by carrier service.
PA. R.CRIM.P. 576(B).
                                                 3
(Pa. Cmwlth. 2004). The rules governing service of process must be strictly
followed. Township of Lycoming v. Shannon, 780 A.2d 835, 838 (Pa. Cmwlth.
2001). “The burden to comply with all procedural rules lies with the plaintiff who
chose to initiate the suit[.]” Fraisar v. Gillis, 892 A.2d 74, 77 (Pa. Cmwlth. 2006).
Notably, there is no exception to these rules because a plaintiff is a prisoner. See
Messina v. Sprankle (Pa. Cmwlth., No. 586 C.D. 2010, filed July 23, 2010)
(unreported).5 The return of service itself must demonstrate that the service was
made in conformity with the applicable rules. Township of Lycoming, 780 A.2d at
838. A party may file preliminary objections for lack of jurisdiction where service
of a complaint is defective.         Gregor v. Commonwealth of Pennsylvania (Pa.
Cmwlth., No. 1381 C.D. 2016, filed June 13, 2017), slip op. at 5 (citing PA. R.C.P.
No. 1028(a)(1)) (unreported).
              A writ of habeas corpus is civil in nature. Pew v. Mechling, 929 A.2d
1214, 1218 (Pa. Cmwlth. 2007). The rules governing service of original process for
civil matters are set forth in the Pennsylvania Rules of Civil Procedure. See PA.
R.C.P. Nos. 400-430. Rule 400 designates who is authorized to make service, and




5
  An unreported panel decision of this Court, “issued after January 15, 2008,” may be cited “for
its persuasive value[.]” Section 414(a) of the Commonwealth Court’s Internal Operating
Procedures, 210 Pa. Code §69.414(a).
                                               4
Rule 402 designates the required manner of service. PA. R.C.P. Nos. 4006 and 402.7
These rules require that a sheriff must effect personal service upon a defendant.
                  With these principles in mind, we turn to Williams’ first claim that
service of his petition by First-Class Mail effected proper service. Williams argues
that service of the petition is governed by the Pennsylvania Rules of Criminal




6
    It states, in relevant part, as follows:
         (a) Except as provided in subdivisions (b) and (c) and in Rules 400.1 and 1930.4,
         original process shall be served within the Commonwealth only by the sheriff.
         (b) In addition to service by the sheriff, original process may be served also by a
         competent adult in the following actions:
                 (1) civil action in which the complaint includes a request for
                 injunctive relief under Rule 1531, perpetuation of testimony under
                 Rule 1532 or appointment of a receiver under Rule 1533,
                 (2) partition, and
               (3) declaratory judgment when declaratory relief is the only relief
               sought.
PA. R.C.P. No. 400(a), (b).
7
  This Rule states, in pertinent part, as follows:
        (a) Original process may be served
               (1) by handing a copy to the defendant; or
               (2) by handing a copy
                        (i) at the residence of the defendant to an adult
                        member of the family with whom he resides; but if
                        no adult member of the family is found, then to an
                        adult person in charge of such residence; or
                        (ii) at the residence of the defendant to the clerk or
                        manager of the hotel, inn, apartment house, boarding
                        house or other place of lodging at which he resides;
                        or
                        (iii) at any office or usual place of business of the
                        defendant to his agent or to the person for the time
                        being in charge thereof.
PA. R.C.P. No. 402(a).
                                                 5
Procedure.8 In support, Williams cites the unreported decision of the Pennsylvania
Superior Court in Bozic v. Folino (Pa. Super., No. 207 WDA 2014, filed July 18,
2014). There, the Superior Court affirmed an order of the Court of Common Pleas
of Greene County (Greene County Court) transferring a prisoner’s praecipe for writ
of habeas corpus ad subjiciendum to the Philadelphia County Court of Common
Pleas.    The Greene County Court explained that because the prisoner was
challenging the legality of his commitment and confinement at a state prison, the
court where he was convicted had exclusive jurisdiction. In so holding, the Greene
County Court referred to PA. R.CRIM.P. 108(a) as establishing the venue for the
petitioner’s writ. Bozic is inapposite.
               Here, Williams challenges the adequacy of his medical treatment and
bunk assignment, which do not relate to a criminal proceeding. This Court has stated
that, “regardless of whether a prisoner has been detained pursuant to a civil or
criminal process,” a writ of habeas corpus is a civil remedy. Pew, 929 A.2d at 1218.
We reject Williams’ claim that his service on the named defendants was governed
by the Rules of Criminal Procedure.
               Williams argues, alternatively, that the defendants were not prejudiced
by the First-Class Mail service. In support, Williams cites McCreesh v. City of
Philadelphia, 888 A.2d 664 (Pa. 2005).
               In McCreesh, the plaintiff served the defendant by certified mail but did
not effect personal service until after the statute of limitations had run. The county
court refused to dismiss the action because the writ of summons was received by the

8
  The Rules of Criminal Procedure define the term “[c]riminal proceedings” to “include all actions
for the enforcement of the Penal Laws.” PA. R.CRIM.P. 103. The term “[p]enal laws” means “all
statutes and embodiments of the common law which establish, create, or define crimes or offenses,
including any ordinances which may provide for imprisonment upon conviction or upon failure to
pay a fine or penalty.” PA. R.CRIM.P. 103.
                                                6
defendant prior to the expiration of the statute of limitations. This Court reversed,
holding that service by certified mail did not constitute a good faith effort. The
Supreme Court then reversed this Court. It held that a dismissal on grounds of the
statute of limitations was appropriate only where the plaintiff has “demonstrated an
intent to stall the judicial machinery or where [the plaintiff’s] failure to comply with
the Rules of Civil Procedure has prejudiced [the] defendant.” Id. at 674. The
Supreme Court remanded the case to the county court for a determination as to
whether the defendants were prejudiced by the plaintiff’s failure to effect proper
service within the statute of limitations.
             Here, the statute of limitations is not at issue, and Williams’ petition
was not dismissed with prejudice. McCreesh is inapposite.
             Williams failed to have the sheriff serve the petition. “Whether a court
may disregard a litigant’s defective service of process … is vested within the sound
discretion of the court.” Miller v. Klink, 871 A.2d 331, 337 (Pa. Cmwlth. 2005)
(quoting Konya v. District Attorney of Northampton County, 669 A.2d 890, 892 (Pa.
1995)). This Court will not overturn a lower court’s enforcement of the service rules
unless the lower court abused its discretion. Id. Here, the trial court found that
Williams “failed to make a good faith effort to comply with said procedural rules.”
1925(a) Opinion at 2. There is no basis to hold that the trial court abused its
discretion in so finding and dismissing Williams’ petition without prejudice.
Williams may refile the petition and make proper service.
             For all of the foregoing reasons, we affirm the decision of the trial court.


                                             _______________________________
                                             Mary Hannah Leavitt, President Judge



                                             7
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Anthony Williams,                    :
                       Appellant     :
                                     :
           v.                        :   No. 1402 C.D. 2019
                                     :
Kyle A. Russell, Amanda Benner,      :
and Dr. Megan                        :


                                   ORDER


           AND NOW, this 13th day of April, 2020, the order of the Court of
Common Pleas of Lehigh County in the above-captioned matter, dated September
6, 2019, is hereby AFFIRMED.

                                     _______________________________
                                     Mary Hannah Leavitt, President Judge
