NOT PRECEDENTIAL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. (*Ame n ded P u r suant 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 App ellant2

Melissa L. Yemma [ARGUED] David A. Herman Nicolson Law Grou p 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 matte r 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 t o the Appellant as “Ginzburg” in conformity with the District Court’s opinion and the parties’ briefs.3

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 Electrolu x 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 o f 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 otherwi se 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 deliv ery [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 sel ler 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 w ith 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, cons istent 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 P anther Valley Sch. Dist. , 877 F.3d 136, 145 (3d Cir. 2017) (citations omitted).4

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 Penns ylvania 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 d ays , or by May 8,
2017

. 3 See Pa. R. Civ. P. 404. Ginzburg sent the Writ to Electrolux via certified m ail 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 “delive red” 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 Cha tley, 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).5

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
W rit of S ummons 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 W rit. 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
R ules of Civil Procedure 12(b)(5) a nd 12(b)(6) , for insufficiency of service of process, and for failing to state a claim upon which relie f can be granted based on the running of the applicable statute s of limitation s, respectively

. On January 19, 2018, t he District Court granted Electrolux’s M otion to D ismiss 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 th e 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 f ederal 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.6 4

The District Cou rt 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 infer ences 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 C ourt 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. As suming 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 effica cy of Ginzburg’s service of process

— we need not analyze it separately.7

“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. DiBart olo , 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 app lying 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 t here; he was required to serve Electrolux within ninety days of February 6, 2017 to toll the statute of
l imitations

. 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 defendant8

or, if the defendant has refused to accept mail service and the plaintiff ther eafter 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 maili ng , ” 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 t he 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 result s 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 re issuing 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 “e a ch 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 88 9. The “good faith effort” rule was later articulated in Farinacci v. Beaver County Industrial9

Development Authority , wherein the Pennsylvania Supreme Co urt 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 Pen nsylvania 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 con cedes 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

.10

“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 ema il 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
mat ter 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. Ginzbur g 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 R ule 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, w e deny Ginzburg’s Motion Requesting Certification of State Law to the Supreme C ourt of Pennsylvania pursuant to 3d Cir. L.A.R. Misc. 110

.