Anzalone v. Vormack

ORIE MELVIN, Judge,

dissenting.:

I dissent. While I agree with the Majority that merely alleging defective service is not sufficient to undermine the jurisdiction of the District Justice and the Court of Common Pleas, there exists a dispute of fact concerning Mr. Vormack’s residence on the date of service of the complaint. He should be given the opportunity to resolve the dispute by presentation of evidence at an evidentiary hearing.

Mr. Vormack’s act of seeking a protective order prohibiting Ms. Anzalone from scheduling depositions should not preclude him from presenting evidence and testimony at a hearing. Despite the Majority’s position, it is not clear that Mr. Vormack filed the protective order to prevent the resolution of the notice question. Rather, a review of the motion indicates that Mr. Vormack’s grounds for prohibiting discovery were based on procedural rules which he alleges bar discovery in certain cases. Furthermore, deposition testimony is not the only avenue to resolve the question of whether service of the complaint was defective. I would reverse and remand for an evidentiary hearing to give Mr. Vor-mack an opportunity to establish that service was improper.