                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 18-2686



         *THE ESTATE OF VITTORIO GINZBURG, BY ADMINISTRATORS
               SOFIA ERMEY AND LIONEL ARTOM-GINZBURG,
                                               Appellant

                                       v.

                   ELECTROLUX HOME PRODUCTS, INC.

          (*Amended Pursuant to Clerk’s Order entered January 18, 2019)

                                ______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                     (D.C. Civ. Action No. 2-17-cv-03384)
               District Judge: Honorable Nitza Quiñones Alejandro
                                 ______________

                             Argued April 16, 2019
                               ______________

       Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges.

                       (Opinion Filed: September 4, 2019)
                               ______________


Lionel C. Artom-Ginzburg [ARGUED]
1628 John F. Kennedy Boulevard
8 Penn Center Plaza
Philadelphia, PA 19103, USA
       Counsel for Appellant
Melissa L. Yemma [ARGUED]
David A. Herman
Nicolson Law Group
1400 North Providence Road
Rose Tree Corporate Center II, Suite 4045
Media, PA 19063, USA
      Counsel for Appellee
                                    ______________

                                        OPINION*
                                     ______________

GREENAWAY, JR., Circuit Judge.

       In McCreesh, the Pennsylvania Supreme Court adopted a “flexible approach” to

determine the efficacy of a plaintiff’s service of process, thus abandoning “the draconian

action of dismissing claims based on technical failings that do not prejudice the

defendant.” McCreesh v. City of Philadelphia, 888 A.2d 664, 666 (Pa. 2005). We

believe that the District Court’s dismissal of this action was such a draconian action.

While service here may have been technically late by a matter of days, we see no

prejudice. This action should proceed. We will reverse.



       On February 6, 2015, at approximately 2:00 a.m., a fire started in the kitchen of

Appellant Vittorio Ginzburg’s (“Ginzburg’s”)1 condominium, located at 323 S. 17th



       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.


       1
        This appeal is brought by Lionel Artom-Ginzburg and Sofia Ermey,
administrators of Vittorio Ginzburg’s estate. This opinion refers to the Appellant as
“Ginzburg” in conformity with the District Court’s opinion and the parties’ briefs.
                                             2
Street, Unit 2, Philadelphia, Pennsylvania 19103. The fire destroyed three rooms of

Ginzburg’s home and caused smoke and fire damage to three other units in the building.

According to Ginzburg, a defective clothes dryer manufactured by Appellee Electrolux

Home Products, Inc. (“Electrolux”) caused the fire.

       Ginzburg commenced this action by filing a writ of summons in the Court of

Common Pleas on February 6, 2017. He sued Electrolux for negligence (Count 1);

negligent failure to warn (Count 2); breach of express and implied warranties (Count 3);2

and strict product liability (Count 4).

       Under Pennsylvania law, Ginzburg’s claims for negligence (Count 1), negligent

failure to warn (Count 2), and strict liability (Count 4) are subject to a two-year statute of

limitations which accrues on the date that the injury was inflicted. 42 Pa. Con. Stat. Ann.

§ 5524(7) (listing “[a]ny . . . action or proceeding to recover damages for injury to person

or property which is founded on negligent, intentional, or otherwise tortious conduct”



       2
         Ginzburg’s claim for breach of express and implied warranties is subject to a
four-year statute of limitations that commences “when tender of delivery [was] made.”
13 Pa. Con. Stat. Ann. § 2725(a), (b); Nationwide Ins. Co. v. Gen. Motors
Corp./Chevrolet Motor Div., 625 A.2d 1172, 1174 (Pa. 1993) (“[A] breach of warranty
action accrues on, and suit must be filed within four years of, the date the seller tenders
delivery of the goods, even if the breach is not apparent until after delivery has been
tendered.”). Since Ginzburg did not allege facts about when the Electrolux dryer was
delivered, the District Court dismissed this claim without prejudice with leave to file an
Amended Complaint within 30 days. Ginzburg did not file an Amended Complaint, and
the claim was subsequently dismissed with prejudice. This issue was not briefed;
therefore, we will consider it waived. “We have long recognized, consistent with Federal
Rule of Appellate Procedure 28(a) and Third Circuit Local Appellate Rule 28.1, that an
appellant’s opening brief must set forth and address each argument the appellant wishes
to pursue in an appeal.” Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877
F.3d 136, 145 (3d Cir. 2017) (citations omitted).
                                              3
among the “actions and proceedings [that] must be commenced within two years”). “An

action may be commenced by filing . . . (1) a praecipe for a writ of summons, or a

complaint.” Pa. R. Civ. P. 1007 (emphasis in original). The Pennsylvania Rules of Civil

Procedure further require “[o]riginal process [to] be served” on out-of-state parties

“within ninety days of the issuance of the writ.” Pa. R. Civ. P. 404.

       To toll the statute of limitations, Ginzburg was required to commence this action

by February 6, 2017, which he did by filing the Praecipe for a Writ of Summons (the

“Writ”) in the Philadelphia Court of Common Pleas on that date. Ginzburg was also

required to serve Electrolux, an out-of-state party, within ninety days, or by May 8,

2017.3 See Pa. R. Civ. P. 404. Ginzburg sent the Writ to Electrolux via certified mail on

May 5, 2017, eighty-eight days after filing it. He addressed it to 250 Bobby Jones

Expressway, Martinez, Georgia 30907, and it was marked “delivered” to a P.O. Box in

Augusta, Georgia on May 9, 2017—one day after service was required to toll the statute

of limitations.

       According to an affidavit by the Facility Manager for Electrolux, Scott Stanley,

not only did Ginzburg get Electrolux’s address wrong by listing “Martinez, Georgia”

instead of “Augusta, Georgia;” the office located at 250 Bobby Jones Expressway,

Augusta, Georgia 30907 was vacated in September 2011—over five years prior to

Ginzburg’s attempted service. On August 4, 2017, Joanne Chatley, the Litigation

Manager for Electrolux North America, attested to the fact that she was unaware of the


       3
        The ninetieth day fell on a Sunday, May 7, 2017, and was therefore excluded.
Pa. R. Civ. P. 106(b).
                                             4
writ at the time it was delivered to the Augusta Post Office. Chatley later revised her

statement in an affidavit dated August 28, 2017, to reflect that she did receive Ginzburg’s

Writ of Summons among other things in an email on May 12, 2017, which she had

previously not noticed.

       On June 30, 2017, Ginzburg filed a Complaint against Electrolux in the same

proceeding, raising the same claims stated in his Writ. Electrolux subsequently removed

this case to the United States District Court for the Eastern District of Pennsylvania. On

August 4, 2017, Electrolux moved to dismiss Ginzburg’s Complaint pursuant to Federal

Rules of Civil Procedure 12(b)(5) and 12(b)(6), for insufficiency of service of process,

and for failing to state a claim upon which relief can be granted based on the running of

the applicable statutes of limitations, respectively.

       On January 19, 2018, the District Court granted Electrolux’s Motion to Dismiss

pursuant to Rule 12(b)(6), holding that Ginzburg’s belated attempt at service to an

outdated and incorrect address for Electrolux did not constitute proper service or a good

faith attempt to serve the Writ. The District Court rejected Electrolux’s Rule 12(b)(5)

argument, however, concluding that Ginzburg had perfected service within the

parameters of Rule 4(m) by serving Electrolux with the Complaint within the requisite

ninety days from removal to federal court. See Fed. R. Civ. P. 4(m).

       On February 19, 2018, Ginzburg filed a Motion for Reconsideration of the District

Court’s January 19th Order. In an order dated July 16, 2018, the District Court denied

Ginzburg’s motion on the merits. This timely appeal followed.



                                               5
                                                   4



       The District Court granted Electrolux’s Motion to Dismiss pursuant to Rule

12(b)(6), concluding that Ginzburg’s claims were time-barred due to his ineffective

service of process. Given the guidance provided by the Pennsylvania Supreme Court in

McCreesh, we will reverse.5

       “We exercise plenary review of a district court’s order granting a motion to

dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and apply the same

standard as does the District Court.” Edinboro Coll. Park Apartments v. Edinboro Univ.

Found., 850 F.3d 567, 572 (3d Cir. 2017) (citation omitted). Under this standard, the

complaint must “contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Id. (quoting In re Vehicle Carrier Servs. Antitrust

Litig., 846 F.3d 71, 79 n.4 (3d Cir. 2017); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

When reviewing a 12(b)(6) motion, we “accept as true all well-pled factual allegations in

the complaint and all reasonable inferences that can be drawn from them.” Taksir v.

Vanguard Grp., 903 F.3d 95, 96–97 (3d Cir. 2018).




       4
          The District Court had jurisdiction under 28 U.S.C. § 1332. This Court has
jurisdiction under 28 U.S.C. § 1291.
        5
          The parties also allude to the District Court’s rejection of Electrolux’s Rule
12(b)(5) arguments in their briefing, see Appellant’s Br. 10–11; Appellee’s Br. 25–27,
but we decline to reach this ruling. Assuming arguendo that it would be appropriate for
us to address Rule 12(b)(5), to the extent the Rule 12(b)(5) analysis is premised on the
same underlying issues as those in the Rule 12(b)(6) analysis—i.e., the timeliness of
Ginzburg’s claims and the efficacy of Ginzburg’s service of process—we need not
analyze it separately.
                                               6
       “As a federal court sitting in diversity, we must apply the substantive law as

decided by the state’s highest court.” Travelers Indem. Co. of Ill. v. DiBartolo, 131 F.3d

343, 348 (3d Cir. 1997) (citation omitted). Here, the underlying substantive issue of law

is whether Ginzburg tolled the relevant statute of limitations. “[S]tate tolling principles

are generally to be used by a federal court when it is applying a state limitations period.”

Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991) (quoting Vernau v. Vic’s Market, Inc.,

896 F.2d 43, 45 (3d Cir.1990) (internal quotation marks omitted)). In cases, such as this

one, where the substantive state law is not clear, “we must forecast the position the

supreme court of the forum would take on the issue,” Clark v. Modern Grp. Ltd., 9 F.3d

321, 326 (3d Cir. 1993) (collecting cases), and “[t]he ‘carefully considered statement[s]’

of the Supreme Court in dicta . . . also inform our prediction.” Travelers, 131 F.3d at 348

(quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 n.21 (3d Cir. 1980)). “Our

review of the district court’s prediction and application of state law is plenary.” Clark, 9

F.3d at 327.

       To determine whether Ginzburg’s Complaint was time-barred, we must examine

whether Ginzburg complied with the relevant Pennsylvania procedural rules. Pursuant to

42 Pa. Con. Stat. Ann. § 5524(7), Ginzburg was required to bring this action within two

years of the event giving rise to his claims, or by February 6, 2017. Ginzburg’s

obligations under the Pennsylvania Rules of Civil Procedure did not stop there; he was

required to serve Electrolux within ninety days of February 6, 2017 to toll the statute of

limitations. Pa. R. Civ. P. 404. “Service is complete upon delivery of the mail,” Pa. R.

Civ. P. 403, and service by mail must include “a return receipt signed by the defendant

                                              7
or, if the defendant has refused to accept mail service and the plaintiff thereafter has

served the defendant by ordinary mail, (1) the returned letter with the notation that the

defendant refused to accept delivery, and (2) an affidavit that the letter was mailed by

ordinary mail and was not returned within fifteen days after mailing,” Pa. R. Civ. P.

405(c).

       Here, it is clear that Ginzburg did not strictly abide by each of these rules. He

attempted to serve Electrolux at an address that was incorrect and outdated. He did not

include the requisite return receipt. And even when the Writ serendipitously was

delivered to a P.O. Box in Augusta, Georgia, it was still past the ninety-days allotted

under Pennsylvania procedure rules. Nonetheless, we consult the guidance given by

Pennsylvania’s state courts to determine whether the sum of Ginzburg’s technical

missteps necessarily results in his claims being time-barred.

       In Lamp v. Heyman, the Pennsylvania Supreme Court addressed what it observed

to be a common practice of “stall[ing] . . . the legal machinery” by reissuing a writ or

complaint pursuant to the rule now codified at Pa. R. Civ. P. 401(b)(2). 366 A.2d 882,

889 (Pa. 1976). Prior to the Lamp decision, the reissuance rule allowed a filing party to

effectively circumvent the timely service requirement, because “each valid reissuance

[would give] rise to a new equivalent period during which the writ may again be

reissued. Id. at 885. Lamp held that “a writ of summons shall remain effective to

commence an action only if the plaintiff then refrains from a course of conduct which

serves to stall in its tracks the legal machinery he has just set in motion.” Id. at 889. The

“good faith effort” rule was later articulated in Farinacci v. Beaver County Industrial

                                              8
Development Authority, wherein the Pennsylvania Supreme Court stated that “Lamp

required of plaintiffs a good-faith effort to effectuate notice of commencement of the

action.” 511 A.2d 757, 759 (Pa. 1986).

       After several years of contradictory applications of the Lamp/Farinacci rule by the

lower courts, the Pennsylvania Supreme Court adopted the “flexible approach” to the

good-faith attempt rule in McCreesh v. City of Philadelphia. 888 A.2d 664 (Pa. 2005).

According to the McCreesh Court, “plaintiffs’ initial procedurally defective service” is

considered a good-faith attempt “where the defendant has actual notice of the

commencement of litigation and is not otherwise prejudiced.” McCreesh, 888 A.2d at

674. The Pennsylvania Supreme Court “note[d] that there may be situations where actual

notice may not be absolutely necessary so long as prejudice did not result,” albeit it

declined to reach this issue. McCreesh, 888 A.2d at 674, n.20. We believe that this is

one such situation.6

       Electrolux concedes that there was no prejudice at the time of Ginzburg’s belated

service. Oral Argument https://www2.ca3.uscourts.gov/oralargument/audio/18-

2686TheEstateofVittorioGinzburg.mp3 (“Oral Arg.”) at 10:28–10:38 (argued April 16,

2019) ([Judge Greenaway, Jr.]: “Aren’t we supposed to look at the prejudice back [at the

time of the attempted service of process] and not today?” [Counsel for Electrolux]: “I

would agree with you on that one.”); Oral Arg. at 10:52–10:58 ([Judge Greenaway, Jr.]:



       6
        Our conclusion here does not attempt to expand Pennsylvania law, instead it
“forecast[s] the position the supreme court of the forum would take on the issue,” Clark,
9 F.3d at 326.
                                             9
“So if you go back in time . . . you’ll agree that there was no prejudice?” [Counsel for

Electrolux]: “Yes, your Honor, at that time.”).7 Ginzburg’s Writ arrived in Augusta,

Georgia on May 9, 2017, and the Litigation Manager for Electrolux North America

received it via email on May 12, 2017. Although Electrolux did not have actual notice on

the ninetieth day after Ginzburg filed his Writ, it was not prejudiced by receiving the Writ

a few days later. Electrolux subsequently participated in this litigation, removing the

matter to Federal Court and appearing in case conferences. We predict that this is the

situation anticipated by the carefully considered footnote in McCreesh: despite a lack of

timely actual notice, the non-filing party was not prejudiced. See 888 A.2d at 674, n.20.

Ginzburg should not be punished for his technical missteps where his missteps do not

contradict a finding of good faith. Cf. McCreesh, 888 A.2d at 674. Therefore, the

District Court’s dismissal for failure to state a claim under Rule 12(b)(6) was improper.



       For the foregoing reasons, we will reverse the District Court.8




       7
         Instead, Electrolux argues that the prejudice arises from Ginzburg’s death, since
they can no longer depose him. Oral Arg. at 10:10–10:26.
       8
         In so holding, we deny Ginzburg’s Motion Requesting Certification of State Law
to the Supreme Court of Pennsylvania pursuant to 3d Cir. L.A.R. Misc. 110.

                                            10
