PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3852

___________

ANDREW PANICO,

Appellant

v.

PORTFOLIO RECOVERY ASSOCIATES, LLC

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-15-cv-01566)

District Judge: Honorable Brian R. Martinotti

____________________________________

Argued: March 30, 2017

Before: VANASKIE, KRAUSE, and RESTREPO, Circuit 

Judges

(Opinion Filed: January 2, 2018)

_____________
2

PHILIP D. STERN, ESQ. [ARGUED]

ANDREW T. THOMASSON, ESQ.

Stern Thomasson

150 Morris Avenue

2nd Floor

Springfield, NJ 07081

Counsel for Appellant Andrew Panico

DAVID N. ANTHONY, ESQ. [ARGUED]

STEPHEN C. PIEPGRASS, ESQ.

Troutman Sanders

1001 Haxall Point

P.O. Box 1122

15th Floor

Richmond, VA 23219

AMANDA L. GENOVESE, ESQ.

Troutman Sanders

875 Third Avenue

New York, NY 10022

CINDY D. HANSON, ESQ.

Troutman Sanders

600 Peachtree Street, N.E. 

Suite 5200

Atlanta, GA 30308

Counsel for Appellees Portfolio Recovery

Associates, LLC

___________

OPINION OF THE COURT
3

RESTREPO, Circuit Judge.

In this putative class action, Plaintiff-Appellant Andrew 

Panico, who resides outside of the state of Delaware but signed 

a contract with a choice-of-law provision specifying 

application of Delaware state law, asserts that DefendantAppellee Portfolio Recovery Associates (“PRA”) violated the 

Fair Debt Collection Practices Act (“FDCPA”) and the New 

Jersey Consumer Fraud Act (“NJCFA”) by suing to collect 

debts after the applicable Delaware statute of limitations had 

run. The District Court granted Defendant’s motion for

summary judgment, after finding that a Delaware tolling 

statute served to prevent the Delaware statute of limitations 

from running as to a party residing outside the state of 

Delaware through the pendency of the credit relationship, 

default, collections attempts, and ensuing litigation. For the 

reasons that follow, we will reverse the District Court’s grant 

of summary judgment and remand the case for further 

consideration.

I

1

Panico is a resident of the state of New Jersey, who, by 

early 2010, allegedly incurred substantial debt on a credit card 

account with MBNA America Bank (“MBNA”). As it arose 

from spending for personal or household purposes, Panico’s 

obligation qualifies as “debt” under 15 U.S.C. § 1692a(5) of 

the FDCPA. On June 18, 2010, MBNA regarded Panico as 

delinquent on his then-outstanding balance. MBNA assigned 

the rights to the debt to Appellee PRA, a debt collector. 

 

1 For purposes of summary judgment in the District 

Court, the parties stipulated to all of the facts as related here.
4

Although PRA engaged in attempts to collect the debt, it did 

not succeed.

On October 20, 2014—more than three but fewer than 

six years after the cause of action for debt collection accrued—

PRA sued Panico in New Jersey Superior Court to recover the 

balance. New Jersey’s relevant statute of limitations barred 

collection of such debts after six years; Delaware’s statute of 

limitations, by contrast, proscribed collection of such debts 

after only three years. The credit agreement governing the 

relationship between Panico and MBNA provided for 

application of “the laws of the State of Delaware, without 

regard to its conflict of laws principles, and by any applicable 

federal laws.” App. 54. Panico moved for summary judgment, 

on the ground that the collections action was time-barred. 

Rather than litigate the issue of whether Delaware’s tolling 

statute applied to stop the state’s three year statute of 

limitations from running as to defendants residing outside the 

state, PRA agreed to a stipulated dismissal.

In March 2015, Panico filed this putative class action in 

the District Court for the District of New Jersey. The class 

action alleged violations of the FDCPA and the NJCFA, on the 

grounds that PRA had sought to collect on a time-barred debt. 

PRA moved for summary judgment on the basis that the debt 

it had sought to collect was not time-barred. That motion

presented squarely the issue of whether the Delaware tolling 

statute would apply to abrogate the statute of limitations that 

would otherwise have barred the collection of the underlying 

debt. The parties agreed to address that issue before addressing 

class certification, and ultimately, the District Court granted 

PRA’s motion for summary judgment on September 14, 2016. 

Panico timely appealed.
5

II

The District Court had jurisdiction under 15 U.S.C. 

§ 1692k(d)—the relevant section of the FDCPA—and 28 

U.S.C. § 1331. We have jurisdiction over an appeal from a 

final decision of a District Court under 28 U.S.C. § 1291. Our 

review of a District Court’s grant of summary judgment is 

plenary. NAACP v. City of Philadelphia, 834 F.3d 435, 440 

(3d Cir. 2016). Summary judgment is appropriate when “the 

movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). 

III

The parties agree, for the purpose of this appeal, that 

under New Jersey conflict-of-law rules, Delaware law governs 

this action.2 They disagree, however, as to the interaction of 

Delaware’s statute of limitations and statutory tolling 

provision. Delaware’s statute of limitations for actions to 

recover debts based on a credit relationship between two 

parties bars filing against defendants “after the expiration of 

3 years from the accruing of the cause of such action.” Del. 

Code Ann. tit. 10, § 8106a. PRA’s suit, filed in October of 

 

2 PRA’s memorandum of law in support of its motion 

for summary judgment before the District Court acknowledged

that, “[f]or the purposes of this motion only, PRA will presume 

that [Panico]’s allegation as to the applicable state law and 

statute of limitation is correct.” Supp. App. 1. PRA confirmed

at oral argument that it agreed to so presume, rather than 

litigate the issue of conflict of laws, based on PRA’s firm belief 

that it would prevail even if Delaware law applies.
6

2014 to collect an alleged debt regarded as delinquent as of 

June 2010, falls outside the applicable statute of limitations. 

PRA asserts, however, that the Delaware tolling statute applies 

to stop the statute of limitations from running because Panico 

resided outside of Delaware during the entirety of the credit 

relationship, the debt collection efforts, and the period of time 

preceding the commencement of litigation. The Delaware 

tolling statute provides that: 

If at the time when a cause of action accrues 

against any person, such person is out of the 

State, the action may be commenced, within the 

time limited therefor in this chapter, after such 

person comes into the State in such manner that 

by reasonable diligence, such person may be 

served with process. If, after a cause of action 

shall have accrued against any person, such 

person departs from and resides or remains out 

of the State, the time of such person’s absence 

until such person shall have returned into the 

State in the manner provided in this section, shall 

not be taken as any part of the time limited for 

the commencement of the action.

Del. Code Ann. tit. 10, § 8117.

Our role is to apply the law of the appropriate 

jurisdiction. City of Philadelphia v. Lead Indus. Ass’n, 994 

F.2d 112, 123 (3d Cir. 1993). Contrary to PRA’s argument, 

Delaware courts have interpreted the state’s tolling statute not 

to abrogate the statute of limitations against defendants within 

reach of the state’s long-arm statute. See, e.g., Hurwitch v. 

Adams, 155 A.2d 591 (Del. 1959); Sternberg v. O’Neil, 550 
7

A.2d 1105, 1114 (Del. 1988). In Hurwitch, the Delaware 

Supreme Court noted that applying the tolling statute literally 

“would result in the abolition of the defense of statutes of 

limitations in actions involving non-residents.” Hurwitch, 155

A.2d at 594. Rather than countenance such a result, the Court 

held that the tolling statute “has no tolling effect . . . when the 

defendant in the suit is subject to personal or other service to 

compel his appearance.”3 Id. at 593. As such, the limitations 

period “runs continuously without interruption when there is 

available to the plaintiffs throughout the period an acceptable 

means of bringing the defendant into court.” Id. at 594

(citation omitted). Within Delaware, Hurwitch has guided 

state courts to find that statutory tolling does not stop the 

statute of limitations from running as to defendants who would 

have been amenable to service. See, e.g., Sternberg, 550 A.2d 

at 1114 (confirming, in the context of an Ohio corporation, that 

there “is no tolling effect on the applicable statute of limitations 

in any action when the nonresident defendant in the suit is 

subject to substituted service of process.”). 

PRA points to Saudi Basic Industries Corp. v. Mobil 

Yanbu Petrochemical Co., where the Delaware Supreme Court 

applied statutory tolling to an out-of-state entity so as to 

abrogate an otherwise-applicable statute of limitations. 866 

A.2d 1 (Del. 2003). But Saudi Basic only underscores that the 

lynchpin of the analysis is whether the defendant could 

reasonably be served. In that case, the court held that “the 

purpose and effect of [the tolling statute] is to toll the statute of 

 

3 Since Hurwitch, the tolling statute has been recodified at Del. Code Ann. tit. 10, § 8117, as cited above. At 

the time, the tolling statute was codified at Del. Code Ann. tit. 

10, § 8116.
8

limitations as to defendants who, at the time the action accrues, 

are outside the state and are not otherwise subject to service of 

process in the state.” Id. at 18. In those circumstances, the 

statute of limitations is tolled until the defendant “becomes 

amenable to service of process.” Id. The defendant in Saudi 

Basic was a corporation based in Saudi Arabia, and could not 

have been served even under Delaware’s long-arm statute.4 

There is no dispute that the tolling statute applies in such a 

case—but serving a resident of New Jersey differs 

substantially from serving a Saudi Arabian corporation. 

Indeed, PRA had no trouble serving Panico when it sued him 

in New Jersey state court.5

The Hurwitch line of cases has guided out-of-state 

courts in answering the question that Delaware courts cannot 

sit in a posture to answer: whether Delaware’s tolling statute 

 

4 That statute provides that “[a]ny person . . . submits 

to the jurisdiction of the Delaware courts” when he or she, 

among other things, “[t]ransacts any business . . . in the State.” 

Del. Code Ann. tit. 10, § 3104(b)-(c). The same statute 

provides for “service of process outside the State” in a variety 

of ways—including personal delivery as prescribed for service 

within Delaware, or personal delivery as prescribed for service 

within the jurisdiction of the person to be served—so long as it 

is “reasonably calculated to give actual notice.” Id. § 3104(d).

5 The parties stipulated at the summary judgment stage 

that Plaintiff was not amenable to service of process in 

Delaware, App. 47; however, while it may have been true that 

Plaintiff was not subject to process while physically located in 

Delaware, it is beyond peradventure that Plaintiff was subject 

to service of process, even out of state.
9

stops the Delaware statute of limitations from running in suits 

commenced, as here, in out-of-state jurisdictions against outof-state parties based on agreements governed by Delaware 

law. Out-of-state courts have uniformly declined to apply the 

Delaware tolling provision to stop the statute of limitations

from running in perpetuity. E.g., Portfolio Recovery Assoc., 

LLC v. King, 927 N.E.2d 1059, 1062 (N.Y. 2010) (concluding 

the Delaware tolling provision did not extend the Delaware 

statute of limitations in an action by the same party in this suit 

to collect a debt against a non-resident of Delaware); 

McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, 1276 (M.D. 

Fla. 2008) (finding that an argument that the Delaware tolling 

statute stopped the Delaware statute of limitations from 

running, “although wrong . . . was a good faith mistake”); 

Resurgence Fin., LLC v. Chambers, 173 Cal.App. 4th Supp. 1, 

6 (2009) (finding that the Delaware tolling statute “can be most 

reasonably read to apply only to actions that are actually filed 

in a Delaware court or actions that could have been filed in a 

Delaware court”).

6

 

6 See also Izquierdo v. Easy Loans Corp., No. 2:13-cv1032-MMD-VCF, 2014 WL 2803285, *7 (D. Nev. June 19, 

2014) (finding that the Delaware tolling statute only stopped 

the Delaware statute of limitations from running when the 

action was or could have been filed in a Delaware court); 

Lehman Bros. Holdings, Inc. v. First Cal. Mortg. Corp., No. 

13-cv-02113-CMA-KMT, 2014 WL 1715120, *4 (D. Colo. 

April 30, 2014) (rejecting the argument that Delaware’s tolling 

statute stops the statute of limitations from running when such 

application would result in “an absurd result: tolling the 

limitations period in perpetuity”).
10

The only courts that have accepted arguments 

analogous to PRA’s here—that the Delaware tolling statute 

stops the Delaware statute of limitations from running—have 

done so in contexts where doing so would not create “the 

‘absurd’ result of a claim surviving in perpetuity” or result in 

“the abolition of a statute of limitations affirmative defense.” 

Unifund CCR Partners v. Sunde, 260 P.3d 915, 925 (Wash. 

App. 2011); see also CACV of Colorado, LLC v. Stevens, 274 

P.3d 859 (Or. Ct. App. 2012). In both of those cases, the courts 

applied the forum state’s limitations period to preserve the

availability of a statute of limitations defense. Unifund, 260 

P.3d at 915 (applying Washington’s limitations period); 

CACV, 274 P.3d at 859 (applying Oregon’s limitations period). 

No court, then, has accepted the argument that PRA makes 

here—that the Delaware tolling statute may stop the Delaware 

statute of limitations from running in perpetuity as to the many 

out-of-state consumers who sign contracts of adhesion with 

Delaware corporations without ever setting foot in the state.

We believe those courts have the correct reading of the 

interaction of the Delaware tolling and limitations statutes as 

to such out-of-state defendants. For decades, the Delaware 

tolling statute has abrogated the State’s statute of limitations 

only as to defendants not otherwise subject to service of 

process. We have heard no evidence that the Delaware 

legislature intended to export the state’s tolling statute into outof-state forums so as to substantially limit the application of 

the Delaware statute of limitations. Departing from that 

precedent would also have the effect of eliminating the 

protections of the FDCPA, NJCFA, and other state statutes 

intended to protect debtors and regulate debt collection. We 

see no reason to predict that the Delaware Supreme Court 

would reject the Hurwitch line of cases in contravention of 
11

federal and out-of-state consumer protection law in a manner 

that would result in indefinite tolling of the state statute of 

limitations. Accordingly, we decline to do so.

IV

For the foregoing reasons, we reverse the order of the 

District Court, and remand for further proceedings consistent 

with this opinion.