Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-1-1995

Petrucelli v Bohringer
Precedential or Non-Precedential:

Docket 94-1425




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Recommended Citation
"Petrucelli v Bohringer" (1995). 1995 Decisions. Paper 31.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/31


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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                            No. 94-1425


                        DAVID PETRUCELLI;
              TRACY A. PETRUCELLI, Husband and Wife

                                v.

      BOHRINGER AND RATZINGER, GMBH AUSDEREITUNGSANLAGEN;
             JAKE DIEL CONSTRUCTION MACHINE, INC.;
            TECO ELECTRIC AND MACHINE COMPANY, LTD.

                                v.

             EXCEL RECYCLING & MANUFACTURING, INC.,

                                 Third-Party Defendant

                    David Petrucelli and Tracy A. Petrucelli,

                                 Appellants



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                     (D.C. No. 91-cv-02098)



                   Argued: September 22, 1994
                BEFORE: Becker, Cowen and Garth
                          Circuit Judges

                   (Filed   February 1, l995 )



John R. Vivian, Jr.
Gus Milides
Michael A. Snover (Argued)
Law Offices of John R. Vivian, Jr.
654 Wolf Avenue
Easton, PA 18042
          Counsel for Appellants
          David and Tracy A. Petrucelli

Warren E. Voter
J. Michael Kunsch (Argued)
Sweeney, Sheehan & Spencer
1515 Market Street
Three Penn Center Plaza
Philadelphia, PA 19102

          Counsel for Appellee
          Bohringer and Ratzinger, GMBH
          AUSDEREITUNGSANLAGEN

Christopher C. Fallon, Jr.
Josh M. Greenbaum (Argued)
Cozen & O'Connor
The Atrium
1900 Market Street
Philadelphia, PA 19103

          Counsel for Appellee
          Jake Diel Construction Machine, Inc.




                              OPINION



COWEN, Circuit Judge.


          This appeal arises from an order dismissing a personal

injury suit without prejudice after the plaintiff failed to serve

a summons upon the defendant within 120 days of filing the

complaint as required by Rule 4 of the Federal Rules of Civil

Procedure.   The issue of whether, subsequent to a recent rule

change, Rule 4(m) permits a district court to extend time for

service even absent a showing of good cause is one of first

impression at the federal appellate level.   We conclude that,

under the former rule, the district court did not abuse its
discretion in refusing to extend time beyond the 120 days within

which service was to be effected after finding no good cause

present.   Nevertheless, because we conclude that the new rule

affords a district judge greater discretion, we remand to the

district court for reconsideration on this issue only.

Additionally, we will affirm the order of the district court

granting summary judgment in favor of one of the defendants.

Finally, it was not error to deny plaintiff's motions for a

default judgment and to compel discovery.


                                I.

                      A.   Factual Background

           Plaintiff David Petrucelli ("Petrucelli")1 was employed

by American Fuel Harvester in East Bangor, Pennsylvania, where he

was involved in recycling demolition materials.    The recycling

process consisted of obtaining materials from demolished

buildings, and dumping the material into an impact rotor crusher

machine ("rotor crusher").   The rotor crusher chopped and

pulverized the material into smaller pieces which were then

discharged from the bottom of the rotor crusher.    The material

was discharged through a transition chute to a vibrating feeder,

and then to a hopper on the discharge conveyor.    All of the

component parts of the recycling machine, including the rotor


1
 . Tracy Petrucelli was also a plaintiff in the suit, claiming
loss of consortium. For purposes of this appeal, both David and
Tracy Petrucelli will be referred to collectively as
"Petrucelli."
crusher, were ordered by American Fuel Harvester from defendant

Jake Diel Construction Machinery, Inc. ("Jake Diel").

            Jake Diel designed and manufactured the recycling

machine and later assembled it on the premises of American Fuel

Harvester.    Many of the component parts of the recycling machine,

including the transition chute, the vibrating screen, the machine

chassis, the control booth, and the discharge conveyor, were made

by Jake Diel.    Jake Diel bought for incorporation into the

recycling machine other components, such as the rotor crusher

made by defendant Bohringer & Ratzinger ("Bohringer").       Although

the rotor crusher and the discharge conveyor were all part of the

same recycling machine, there were three independent components

between the rotor crusher and the discharge conveyor.    From the

recycling machine's control booth, most of the various conveyor

belts could be individually turned on and off, but from that

vantage point, most or all of the discharge conveyor could not be

seen.   Bohringer did not participate in the decisions regarding

the design or the location of the control booth and its operating

controls.

            On August 8, 1989, while working with the recycling

machine, Petrucelli noticed that the conveyor was not functioning

properly.    One of his co-workers went to the control booth to

turn off the machine.    After the machine was turned off,

Petrucelli attempted to dislodge some wire caught in the roller

of the discharge conveyor of the recycling machine.    While

performing this task, one of his co-workers turned on the
recycling machine.    Petrucelli's left arm was torn off after

being pulled into the conveyor mechanism.



                        B. Procedural History

          Petrucelli filed a complaint on April 1, 1991, and

thereafter an amended complaint in the United States District

Court for the Eastern District of Pennsylvania.    In the amended

complaint, Petrucelli asserts claims for negligence, strict

products liability, breach of warranty, misrepresentation, and

punitive damages.    Petrucelli enlisted the aid of Attorney

Process Service ("APS") to assist in serving process upon the

defendants.   He informed APS that the nameplate on the machinery

indicated that Jake Diel was located in both Texas and Oklahoma.

APS advised Petrucelli that "Jake Diehl (sic) Construction" could

be served through the Secretary of State of Oklahoma, but that

"Jake Diehl (sic) Construction and Machinery Co." was not subject

to service in Texas (March 26, 1991 letter from APS; App. at 66.)

because its corporate charter was revoked by the Secretary of

State of Texas on November 1, 1988.    Inexplicably, prior to

sending the summons and complaint, Petrucelli never confirmed or

otherwise verified with the Secretary of State of Oklahoma that

Jake Diel was a corporation in good standing with the State of

Oklahoma, capable of being served through the Secretary of State

of that jurisdiction.

          On July 25, 1991, Petrucelli sent a copy of the summons

and complaint and a copy of a Notice of Acknowledgment of Receipt

of Summons and Complaint to the Secretary of State of Oklahoma,
who received these documents on July 29, 1991.     On March 19,

1992, the Secretary of State of Oklahoma issued a certificate of

proof of service which stated that it had been served as the

agent for "Jake Diehl (sic) Construction and Machinery Co." on

August 5, 1991.     The certificate of service also indicated that

on August 7, 1991, the Secretary of State of Oklahoma sent the

summons and complaint to an address in Hereford, Texas, via

certified mail, return receipt requested, but that the letter had

been returned undelivered on August 14, 1991.     However,

Petrucelli contends that in August of 1991, he communicated with

the offices of the Secretary of State of Oklahoma by telephone,

and was verbally assured by someone in that office that Jake Diel

had been served via certified mail.

             Meanwhile, Bohringer impleaded Excel Recycling &

Manufacturing, Inc. ("Excel") as a third-party defendant,

believing that Jake Diel had legally changed its corporate name

to Excel.2    After Jake Diel failed to respond, Petrucelli, in May

of 1992, moved for a default judgment against Jake Diel or

alternatively to extend time for service.     Both of these motions

were denied, resulting in the dismissal of Jake Diel from these

proceedings as a direct defendant.3


2
 . Excel confirmed in its answer on March 6, 1992 that it was
formerly known as Jake Diel Construction Machinery, Inc. prior to
Jake Diel's filing of a Name Change Certificate on December 29,
1989 (and was incorrectly named in Petrucelli's amended complaint
filed October 19, 1991, as Jake Diel Construction Machine, Inc.).
3
 . The district court denied entry of a default judgment for
failure to properly serve the defendant Jake Diel. While the
suit was dismissed without prejudice, the statute of limitations
             Defendant Bohringer subsequently moved for summary

judgment.4    Petrucelli opposed Bohringer's motion and filed a

motion seeking to compel Bohringer: (1) to answer the

interrogatories that Excel had served on Bohringer; and (2) to

produce the documents that Excel had previously demanded of

Bohringer.     The district court granted summary judgment in favor

of Bohringer and denied Petrucelli's motion.

             Petrucelli appeals the orders of the district court:

(1) denying his motions for default judgment against Jake Diel

or, alternatively, to extend the time for service on Jake Diel;

(2) granting summary judgment in favor of defendant Bohringer;

and (3) denying Petrucelli's motion to compel discovery from

Bohringer.     We will affirm the orders of the district court.


                                  II.



              A.   Denial of Motion for Default Judgment

             Petrucelli argues that the district court erred by not

granting his motion for a default judgment against Jake Diel.

Assuming that proper service of process was effected on Jake

Diel, we can reverse the district court only if we find that it

abused its discretion in denying the motion for a default
(..continued)
on the underlying causes of action had run at the time of
dismissal of Jake Diel from these proceedings.
4
 . The    amended complaint also named Teco Electric and Machine
Company   ("Teco") as an additional defendant. Teco also moved for
and was   granted summary judgment. Petrucelli did not oppose this
motion,   and thus Teco is not a party to this appeal.
judgment.    See Farzetta v. Turner & Newall, Ltd., 

,

153 (3d Cir. 1986).     Insofar as this issue pertains to whether

Jake Diel was properly served, our standard of review is plenary.

Stranahan Gear Co. v. NL Industries, Inc., 

, 56 (3d

Cir. 1986).     See also Grand Entertainment Group, Ltd. v. Star

Media Sales, Inc., 

, 481 (3d Cir. 1993) ("We exercise

plenary review over issues concerning the propriety of service

under Federal Rule of Civil Procedure 4.").      We note that if a

default judgment had been entered when there had not been proper

service, the judgment is, a fortiori, void, and should be

vacated.     Gold Kist, Inc. v. Laurinburg Oil Co., 

, 19

(3d Cir. 1985).

             Petrucelli filed the complaint on April 1, 1991.

Pursuant to former Rule 4(j), the predecessor to Rule 4(m), of

the Federal Rules of Civil Procedure, he had 120 days (until July

30, 1991) to serve the summons and complaint upon Jake Diel.5

The return receipt from the mailing indicates that the Secretary

of State of Oklahoma received the summons and complaint on July

29, 1991, just within the 120-day limit.     Petrucelli contends

that since he served Jake Diel's authorized agent, service was

effective.    However, as of November 1, 1988, Jake Diel was no

longer a foreign corporation authorized to conduct business in

Oklahoma.    Because the Secretary of State of Oklahoma was no


5
 . Although not even mentioned or pled by the attorney for
Petrucelli, Rule 4(j) of the Federal Rules of Civil Procedure was
amended, and the successor subdivision, Rule 4(m), went into
effect on December 1, 1993.
longer the authorized agent to accept service of process on

behalf of Jake Diel, we conclude that serving the Secretary of

State was ineffective as service on Jake Diel.   Thus, Jake Diel

was not served within the 120-day period required by the rule.

Indeed, it would have been error as a matter of law for the

district court to enter a default judgment against Jake Diel when

it was never served.



         B.   Denial of Motion to Extend Time for Service

          Petrucelli next argues that the district court should

have granted his alternative motion for an extension of the 120-

day limit to serve Jake Diel, pursuant to Rule 4(j).   When

Petrucelli argued his motion to extend time for service before

the district court in May of 1992 and when the district court

entered its memorandum order in August of 1992 denying

Petrucelli's motion, former Rule 4(j) had not yet been amended.

In 1992, Rule 4(j) read in pertinent part:
          Summons: Time Limit for Service. If a
          service of the summons and complaint is not
          made upon a defendant within 120 days after
          the filing of the complaint and the party on
          whose behalf such service was required cannot
          show good cause why such service was not made
          within that period, the action shall be
          dismissed as to that defendant without
          prejudice upon the court's own initiative
          with notice to such party or upon motion.


Fed. R. Civ. P. 4(j) (1991) (emphasis added).    Under this rule, a

district court was required to dismiss a case if service of
process was not effected within the 120 day period, unless the

plaintiff showed good cause for the delinquency.6

          As of December 1, 1993, Rule 4(j) was amended and

redesignated as Rule 4(m).   While the change in designation from

(j) to (m) is of no import, the language in this subdivision was

substantially modified.   Although counsel for Petrucelli failed

to bring this substantive change to our attention, our own

research has revealed this critical change in the rule.

          Initially, we question whether Rule 4(m) applies to

these proceedings in light of the fact that service of process

was attempted in 1991, two years prior to the rule change.    If

former Rule 4(j) still applies to this case and we conclude that

the district court did not abuse its discretion in finding that

there was no good cause shown for failing to timely serve Jake

Diel, we would have no choice but to affirm the order of the

district court dismissing this case.   However, we are guided by

the order of the Supreme Court which stated, "the foregoing


6
 . Normally, dismissing the case without prejudice or extending
the time for service will have the same practical effect,
assuming that the statute of limitations has not run. In either
event, the plaintiff has the opportunity at the proverbial
"second bite." If the case is dismissed, the plaintiff simply
has to refile the complaint and thus becomes entitled to a new
120 day period within which to effect service of process.
Similarly, if an extension of time is granted, then the plaintiff
has the opportunity to effect service within the new time limit
imposed by the court. The situation changes dramatically,
however, when a case is dismissed, even without prejudice, and
the statute of limitations has run. Here, the plaintiff is
precluded from refiling the action. Thus, assuming good cause,
dismissing a case without prejudice is not an appropriate remedy
after the statute of limitations has lapsed.
amendments to the Federal Rules of Civil Procedure shall take

effect on December 1, 1993, and shall govern . . . insofar as

just and practicable, all proceedings in civil cases then

pending."    See The Order of the United States Supreme Court

Adopting and Amending the Federal Rules of Civil Procedure (April

22, 1993).    Because we believe it to be "just and practicable,"

we conclude that Rule 4(m) applies retroactively to these

proceedings.

             Determining that Rule 4(m) applies to the case before

us does not, however, end our inquiry.    In this case of first

impression before a federal Court of Appeals, we must decide the

manner in which a district court should now proceed when

employing a Rule 4(m) analysis.    Rule 4(m) states in relevant

part:
            Time Limit for Service. If service of the
            summons and complaint is not made upon a
            defendant within 120 days after the filing of
            the complaint, the court, upon motion or on
            its own initiative after notice to the
            plaintiff, shall dismiss the action without
            prejudice as to that defendant or direct that
            service be effected within a specified time;
            provided that if the plaintiff shows good
            cause for the failure, the court shall extend
            the time for service for an appropriate
            period.


Fed. R. Civ. P. 4(m) (1993) (emphasis added).    As mentioned

previously, the former rule required the court to dismiss the

case absent a showing of good cause.    We read the new rule to

require a court to extend time if good cause is shown and to

allow a court discretion to dismiss or extend time absent a
showing of good cause.     We reach this conclusion for several

reasons.

            Initially, we find that the plain language of the rule

itself explains that in all cases, the court has the option of

dismissing the action or extending time for service.       The fact

that the word "shall" is used along with the disjunctive "or" in

the first clause indicates that the court has discretion to

choose one of these options.     As an exception to this general

provision, the second clause notes that if good cause exists, the

district court has no choice but to extend time for service.

Thus, the logical inference that can be drawn from these two

clauses is that the district court may, in its discretion, extend

time even absent a finding of good cause.

            Next, we find that the Advisory Committee

            note on the Rule 4(m) amendment to be

            instructive.   The Committee explained:

                 The new subdivision explicitly provides

            that the court shall allow additional time if

            there is good cause for the plaintiff's

            failure to effect service in the prescribed

            120 days, and authorizes the court to relieve
            a plaintiff of the consequences of an

           application of this subdivision even if there

            is no good cause shown.

Fed. R. Civ. P. 4(m) advisory committee's note (1993) (emphasis

added).    Thus, the "even if" language of the note indicates that
the district court may extend time for service where there is no

good cause shown.

          We hold that as a result of the rule change which led

to Rule 4(m), when entertaining a motion to extend time for

service, the district court must proceed in the following manner.

First, the district court should determine whether good cause

exists for an extension of time.   If good cause is present, the

district court must extend time for service and the inquiry is

ended.   If, however, good cause does not exist, the court may in

its discretion decide whether to dismiss the case without

prejudice or extend time for service.

          The Advisory Committee note provides some guidance as

to what factors the district court should consider when deciding

to exercise its discretion to extend time for service in the

absence of a finding of good cause.     Although the list is not

exhaustive, the Committee explained that, "[r]elief may be

justified, for example, if the applicable statute of limitations

would bar the refiled action, or if the defendant is evading

service or conceals a defect in attempted service."     

(emphasis added).7
7
 . Some may interpret the Advisory Committee note as expanding
the concept of good cause to include a greater number of
situations where "relief may be justified." We decline to adopt
such a position. Specifically, we are troubled by the language
in the note which may be interpreted by some to mean that good
cause exists every time the statute of limitations has run and
the refiling of the action would be barred. We caution against
such a myopic reading of the Advisory Committee note for several
reasons.
          First, when mentioning what "relief may be granted,"
the note refers back to a prior sentence which states that the
rule "authorizes the court to relieve a plaintiff of the
          We hold that a district court may not consider the fact

that the statute of limitations has run until after it has

conducted an examination of good cause.    If the district court

determines that good cause does not exist, only then may it

consider whether the running of the statute of limitations would

warrant granting an extension of time.    We emphasize that the

running of the statute of limitations does not require the

district court to extend time for service of process.    Rather,

absent a finding of good cause, a district court may in its

discretion still dismiss the case, even after considering that




(..continued)
consequences of an application of this subdivision even if there
is no good cause shown." Thus, the examples of "relief" that are
provided in the note should be factored into the analysis only
after a determination has been made that good cause is lacking.
Second, the note indicates that "relief may be justified" if the
statute of limitations has run. If, in fact, the running of the
statute constituted good cause, the district court would be
required to grant relief. Instead, here the Advisory Committee
note indicates that granting relief is not mandatory. Third,
later in the same paragraph, the Advisory Committee refers to and
describes "[a] specific instance of good cause." If, in fact,
the running of the statute of limitations was to be construed as
a "specific instance of good cause," the Advisory Committee would
have characterized it in the same manner. Finally, holding that
good cause exists any time the statute of limitations has run
would effectively eviscerate Rule 4(m) and defeat the purpose and
bar of statutes of repose. Pursuant to Rule 4(m), if good cause
is shown, the district court must extend time. If we were to
construe the Advisory Committee note as instructing a district
court to find good cause whenever the statute of limitations has
run, the district court would be obligated to extend time.
Instead of having 120 days within which to effect service of
process, this reading of Rule 4(m) would extend both the 120 days
and the statute of limitations of every cause of action
indefinitely.
the statute of limitations has run and the refiling of an action

is barred.8

          We begin our inquiry into the proper resolution of this

case by determining whether the district judge was correct in

concluding that Petrucelli failed to establish good cause for not

serving Jake Diel in a timely manner.   Petrucelli contends that

he has shown good cause for his failure to serve Jake Diel within

the required time.   We review the district court's determination

that good cause has not been shown for abuse of discretion.

Lovelace v. Acme Markets, Inc., 

, 83 (3d Cir.), cert.

denied, 

, 

(1987); Braxton v. United

States, 

, 242 (3d Cir. 1987).9

          Petrucelli argues that the following circumstances

constitute good cause:   (1) he was under the mistaken belief that

the defendant had been served since he spoke to someone in the

Office of the Secretary of State of Oklahoma via telephone and

was verbally assured that proper service was effected; and (2) he


8
 . We express no opinion as to what factors, in addition to
those listed in the Advisory Committee note, a district court may
consider when deciding whether to extend time for service or
dismiss a case. We simply note that because the statute of
limitations would bar the refiled action here, it would be
appropriate for the district court to consider this factor,
assuming (as we later conclude) there is no showing of good
cause.
9
 . The dissent argues that under Rule 4(m) the determination of
good cause is a factual one to be reviewed by the clearly
erroneous standard. We disagree. The good cause determination
itself is still a discretionary judgment to be exercised by the
district court. Thus, it is proper to review this decision for
an abuse of discretion.
was told by APS that Jake Diel could not be served in Texas, but

could only be served in Oklahoma.   Petrucelli maintains that his

and APS' errors in serving Jake Diel are attributable to the

confusion caused by the change in the corporate name from Jake

Diel to Excel.

          Petrucelli, however, made several inexcusable errors.

First, he unreasonably relied on a verbal assurance from some

unknown individual in the Office of the Secretary of State of

Oklahoma to the effect that Jake Diel had been served.    Second,

his attempted service included a Notice of Acknowledgement Form,

which was never completed and returned.    Petrucelli did not

question why the acknowledgment form was not returned.    A prudent

attorney exercising reasonable care and diligence would have

inquired into the matter further when it was obvious that the

acknowledgment form was not forthcoming.    Third, Petrucelli

claims that sending a mailing to Texas would be pointless in

light of the assurances from APS that Jake Diel was no longer

doing business in Texas.   However, Jake Diel (later renamed

Excel) was continuously and without interruption doing business

in the state of Texas from April 1, 1969 until the present.

Fourth, the record is barren of any written inquiry made by the

plaintiff of the Secretary of State of Oklahoma, or any response

thereto, which would indicate whether Jake Diel was a corporation
in good standing in that state (or that it was previously a

corporation in good standing whose charter had been revoked).10

           We have previously held that reliance upon a third

party or on a process server is an insufficient basis to

constitute good cause for failure to timely serve, and is also an

insufficient basis for granting an extension of time to effect

service.   

.   We have also held that

"`[h]alf-hearted' efforts by counsel to effect service of process

prior to the deadline do not necessarily excuse a delay, even

when dismissal results in the plaintiff's case being time-barred

due to the fact that the statute of limitations on the

plaintiff's cause of action has run."     

.

Even when delay results from inadvertence of counsel, it need not

be excused.    

have previously cautioned that,

"`[t]he lesson to the federal plaintiff's lawyer is not to take

any chances.   Treat the 120 days with the respect reserved for a

time bomb.'"   

(citation omitted).11



10
 .    The certificate from the Oklahoma Secretary of State is
dated March 19, 1992. In August of 1991 Petrucelli could not
have relied upon this document.
11
 . We recognize that both Lovelace and Braxton were decided
under former Rule 4(j). However, because of our earlier holding
that the running of the statute of limitations is not an element
of a good cause analysis, we are satisfied that the holdings of
Lovelace and Braxton remain intact. In fact, our analysis of
Rule 4(m) in no way impacts any of our prior decisions that
articulate the standard for good cause. Rather, the change which
exists in Rule 4(m) modifies the procedure employed by the
district court after a determination as to good cause has been
made.
          The facts of this case are quite similar to Lovelace,

where we found that it was inappropriate for plaintiff's counsel

to rely upon verbal assurances of the process server where

counsel was not in possession of any written proof of 

.    Here, Petrucelli relied on the verbal

assertions of an individual in the Office of the Secretary of

State of Oklahoma.    He failed to inquire further when the

acknowledgment form was not received.    Petrucelli cannot rely

upon his belief that the defendant had been served when he had in

hand no proof or indication of service.    We conclude that the

district court did not abuse its discretion in ruling that

Petrucelli has not shown good cause for failing to timely serve

the defendant.

          Next, the district court must consider whether any

other factors warrant extending time even though good cause was

not shown.   Because Rule 4(m) had not yet been adopted at the

time the district court decided this issue, the district court

was forced to dismiss this case after finding that no good cause

existed and was prohibited from considering whether an extension

of time should be granted despite a lack of a showing of good

cause.   Now, however, the district court is not faced with having

to dismiss Petrucelli's case and is not prohibited from extending

time for service.12   Although the district court did not abuse

12
 . Subsequent to oral argument we received a motion from Jake
Diel regarding Petrucelli's pleadings in a pending proceeding in
which Petrucelli is plaintiff and his process server, APS, is
defendant. Because we are limited to the extant record in
Petrucelli's action against Jake Diel in this case, we cannot
consider the material which Jake Diel now offers regarding
its discretion, in light of Rule 4(m), we will remand this issue

to the district court to exercise its discretion as to whether

the case should be dismissed or an extension of time granted

within which service of process can be effected.


           C.     Granting of Summary Judgment in Favor

                  of Defendant Bohringer & Ratzinger

          We exercise plenary review over the district court's

grant of summary judgment and apply the same test employed by the

district court.    United States v. Capital Blue Cross, 

, 1271-72 (3d Cir. 1993).    Summary judgment shall be granted

when there are no genuine issues of material fact in dispute and

the movant is entitled to judgment as a matter of law.    Fed. R.

Civ. P. 56(c).    Moreover, the mere existence of some evidence in

support of the non-moving party will not be sufficient to support

a denial of a motion for summary judgment; there must be enough

evidence to enable a jury to reasonably find for the non-moving

party on the issue.    Anderson v. Liberty Lobby, 

,

249, 

, 2511 (1986).    Where, as here, the non-

movant bears the burden of proof on the issue which is the

subject of the summary judgment motion, and is confronted by the

movant's argument that the facts established through the

discovery process do not support the claim, the party must

(..continued)
whether Petrucelli exhibited good faith in attempting to serve
Jake Diel. The district court may in its discretion consider the
arguments made in Diel's motion and in Petrucelli's response, if
any. We express no view as to the merits of Diel's motion, which
we deny without prejudice for the above reasons.
identify evidence of record sufficient to establish every element

essential to the claim.     Celotex Corp. v. Catrett, 

,

322-23, 

, 2552 (1986).

             It is well established that federal courts sitting in

diversity must apply the substantive law of the state whose law

governs the action.    Erie R. Co. v. Tompkins, 

, 78, 

, 822 (1938); Griggs v. Bic Corp., 

, 1431

(3d Cir. 1992).     All parties agree that the substantive law of

Pennsylvania applies to this litigation.

             Petrucelli asserts a claim for: (1) negligence; (2)

strict liability for failure to warn and/or design defect; (3)

misrepresentation; (4) breach of express and implied warranties

of fitness for purpose and merchantability; and (5) punitive

damages.13    In order for Petrucelli to prevail on this appeal, he

must point to evidence which establishes every element of at

least one of the above claims.

             In order to defeat summary judgment on the negligence

claim, Petrucelli must prove: (1) a duty requiring the defendant

to conform to a certain standard of care; (2) failure to conform

to such standard; (3) a causal connection between the failure to

conform and an injury; and (4) actual loss or damage.     

(emphasis added).     A claim for strict products

13
 . Petrucelli has not briefed nor argued on appeal that the
district court erred in granting the motion for summary judgment
with regard to the claim for punitive damages. Because plaintiff
has not briefed this issue for appeal, he has waived review of
that portion of the district court's decision. See Brenner v.
Local 514, United Broth. of Carpenters, 

, 1298 (3d
Cir. 1991).
liability has two elements: (1) that the product is defective;

and (2) that the defect was a proximate cause of the injuries.

(emphasis added).   In order to prevail

on a claim of misrepresentation, Petrucelli must prove: (1)

justifiable or reasonable reliance; and (2) a causal connection

between the representations and the alleged harm.   Gunsalus v.

Celotex Corp., 

, 1159 (E.D. Pa. 1987) (emphasis

added).

            All three of the above claims require a causal

connection between the wrongful act and the alleged harm.     As we

have noted, Bohringer manufactured the rotor crusher, but

Petrucelli's arm was amputated in the discharge conveyor.

Although the rotor crusher and the discharge conveyor were both

part of the same recycling machine, there were three independent

components between the rotor crusher and the discharge conveyor.

It is uncontradicted that the component part (the rotor crusher)

manufactured by Bohringer was not involved in Petrucelli's

accident.   There being no causal relationship between Bohringer's

product and the accident, Bohringer cannot be held liable on a

theory of negligence, strict products liability, or

misrepresentation.   In short, one of the necessary elements of

these claims, causation, is not present.

            The district court properly made findings that

Petrucelli has offered no evidence of an express warranty.    As

such, we will only consider the claim of breach of implied

warranties of fitness and merchantability.   An implied warranty

of fitness for a particular purpose applies "[w]hen the seller at
the time of contracting has reason to know: (1) any particular

purpose for which goods are required; and (2) that the buyer is

relying on the skill or judgment of the seller to select or

furnish suitable goods."   13 Pa. Cons. Stat. Ann. § 2315 (1984).

The Pennsylvania Commercial Code provides that an implied

warranty of merchantability requires that the product be "fit for

the ordinary purposes for which such goods are used."   13 Pa.

Cons. Stat. Ann. § 2314(b)(3) (1984).   Moreover, in order to

prevail under Pennsylvania law on a claim for breach of either

warranty of fitness for a particular purpose or warranty of

merchantability, a plaintiff must show that the product was

defective.   Altronics of Bethlehem, Inc. v. Repco, Inc., 

, 1105 (3d Cir. 1992).

           Petrucelli alleges that the rotor crusher was defective

since (1) it lacked adequate warning systems which would alert,

by sounding an alarm or a bell, personnel in the proximity of the

recycling machine prior to the machine actually starting movement

and (2) the design and location of the control booth did not

allow adequate visibility of the component parts of the recycling

machine.

           Under Pennsylvania law, it is recognized that a

manufacturer's duty to warn is limited when it supplies a

component of a product that is assembled by another party and the

dangers are associated with the use of the finished product.

Jacobini v. V. & O. Press Co., 

, 39, 

, 478
(Pa. 1991) (citing Wenrick v. Schloemann-Siemag
Aktiengesellschaft, 

, 9, 

, 1248 (1989)).
The court in Jacobini reasoned that the manufacturer of the

component part cannot be expected to foresee every possible risk

that might be associated with the use of the completed product

and to warn of dangers in using that completed product.      

588 A.2d at 480.

            Nevertheless, it is possible under certain

circumstances for a component manufacturer to be held liable for

a failure to warn.    For example, in one case, a plaintiff was

severely injured after diving into a shallow pool.    Fleck v. KDI

Sylvan Pools, Inc., 

, 112 (3d Cir. 1992).       He

contended that the pool and the replacement pool liner were

defective because they did not have depth markers or "No Diving"

warnings.    In holding the pool liner manufacturer liable, we

concluded that since the pool liner manufacturer knew that its

product would ultimately be incorporated into a pool, the

potential risk of failing to affix warning labels was reasonably

foreseeable.    

            Thus, the question before us is whether it is

reasonably foreseeable to a component manufacturer that failure

to affix warning devices to its product would lead to an injury

caused by another component part, manufactured by another

company, and assembled into a completed product by someone other

than the initial component manufacturer.    We conclude that

Bohringer could not be expected to foresee that failure to affix

alarms or bells on the rotor crusher would lead to someone being

injured by the discharge conveyor, another component part of the

recycling machine.     Thus, we do not accept Petrucelli's argument
that Bohringer had a duty to warn about the dangers of rotor

crusher.   Therefore, Petrucelli has failed to prove the rotor

crusher was defective for failure to warn of possible injury.

           Next, Petrucelli argues that there was a design defect

because the control booth was placed in a such a manner that a

full view of the discharge conveyor was obstructed.      We do not

agree.   Petrucelli has offered no evidence refuting Bohringer's

position that it did not manufacture the control booth and did

not provide mechanisms to attach it to the rotor crusher.      In

addition, Petrucelli failed to contradict evidence that Jake Diel

had previously placed control booths for other companies in

similar locations even prior to its use of Bohringer rotor

crushers, and would place the control booth in any location

according to the demands of the customer.   We conclude that

plaintiff has failed to present sufficient evidence to support

his claim of breach of warranty of fitness and merchantability.14

             D.   Denial of Motion to Compel Discovery

           Petrucelli argues that the district court erred by not

allowing him to adopt, as his own, the discovery request that

Excel as third-party defendant served upon Bohringer.15

Petrucelli contends that he was implicitly given permission to


14
 . Additionally, Petrucelli has failed to present sufficient
evidence of the statutory elements to support his claim of
implied warranty of fitness. There is, in fact, no evidence that
he relied at any time on the skill or judgment of Bohringer.
15
 . As noted in supra note 2, since December 29, 1992, pursuant
to a name change, Jake Diel is now known as Excel, and we will
refer to it as such.
adopt the interrogatories and request for production of documents

that Excel served on Bohringer because no objections were filed

to his attempted adoption.    Furthermore, he speculates that if

his motion to compel had been granted, he would have discovered

the evidence necessary to preclude the grant of summary judgment

in favor of Bohringer.

            In order to succeed on a motion to compel discovery, a

party must first prove that it sought discovery from its

opponent.   Fed. R. Civ. P. 37(a)(2)(A)16   The district court

concluded that Petrucelli was less than diligent in his discovery

requests.    The district court found that interrogatories and a

request for documents were served on Bohringer by Excel in May of

1992.   Yet, the record is devoid of any indication of discovery

requests served by Petrucelli.     In September and October of 1992,

representatives of Excel and Bohringer were deposed, during which

time Petrucelli deposed a representative of Bohringer for forty-

five minutes.    Petrucelli's contention that the grant of his

motion to compel would produce evidence sufficient to preclude
summary judgment in favor of Bohringer is suspect in light of the

fact that Petrucelli had upwards of two years to conduct

discovery during which time his discovery consisted solely of

this one deposition.     In February of 1993, almost ten months

16
 . Rule 37(a)(2)(A) of the Federal Rules of Civil Procedure
states in relevant part:

The motion must include a certification that the movant has in
good faith conferred or attempted to confer with the party not
making the disclosure in an effort to secure the disclosure
without court action.
after Excel served discovery requests on Bohringer, Petrucelli

sent a letter to Bohringer's attorney seeking, first, to receive

responses to the discovery requests Excel served in May of 1992,

and second, purporting to adopt the discovery requests that Excel

served on Bohringer.    This was Petrucelli's only attempt to seek

discovery; he initiated no independent, direct discovery requests

of Bohringer.    On June 14, 1993, Bohringer filed its motion for

summary judgment and on June 28, 1993, Petrucelli filed his

motion to compel discovery.

            The district court concluded that Petrucelli failed to

comply with Rule 29 of the Federal Rules of Civil Procedure which

requires a written stipulation when modifying procedures

governing discovery.    Moreover, in addition to not complying with

the rule, Petrucelli was lax in not attempting to adopt the

discovery requests until February of 1993, almost ten months

after Excel served the request.    Furthermore, the district court

observed that Petrucelli did not file his motion to compel

discovery proactively but instead waited until after Bohringer

had first filed its motion for summary judgment (some four months

after Petrucelli attempted to adopt the discovery requests

previously served by Excel).

            We apply the abuse of discretion standard when

reviewing orders regarding the scope and conduct of discovery.

Beard v. Braunstein, 

, 447 (3d Cir. 1990) (citations

omitted).    After a thorough review of the record, we conclude

that the district court did not abuse its discretion in denying

Petrucelli's discovery requests.    First, Petrucelli never
forwarded interrogatories, nor a request for production of

documents, to Bohringer.    Thus, pursuant to Rule 37, the

prerequisite for compelling discovery was never fulfilled.

Second, there was never any written agreement between counsel by

which Petrucelli could adopt Excel's discovery requests of

Bohringer.    We observe, as did the district court, that plaintiff

has failed to comport with Rule 29 of the Federal Rules of Civil

Procedure which requires a written stipulation when modifying

procedures governing discovery.    Third, this case had been

ongoing for over twenty-six months at the time that Bohringer

filed its motion for summary judgment.    At no time during this

period did Petrucelli forward any discovery requests to

Bohringer.    We will therefore affirm the order of the district

court denying the motion to compel discovery.17


                                 III.

             A default judgment against Jake Diel could not be

entered since the complaint was never served.     Thus, we will

affirm the order of the district court denying plaintiff's motion

seeking a default judgment.     We will also affirm the decision of

the district court which concluded that Petrucelli has failed to

demonstrate good cause in not timely serving Jake Diel.      However,

17
 . We also note that plaintiff has failed to comply with Local
Rule of Civil Procedure 24(f) of the Eastern District of
Pennsylvania which states that, "[n]o motion or other application
pursuant to the Federal Rules of Civil Procedure governing
discovery or pursuant to this rule shall be made unless it
contains a certification of counsel that the parties, after
reasonable effort, are unable to resolve the dispute."
in light of Rule 4(m), we will remand Petrucelli's motion to

extend time for service to the district court for further

consideration in light of our above analysis.   Summary judgment

was properly entered in favor of Bohringer on all of plaintiff's

claims against it, as there was no genuine issue of fact in

dispute.   Therefore, we will affirm the order of the district

court granting summary judgment to Bohringer.   Finally, since the

district court did not abuse its discretion in monitoring

discovery, we will affirm the order of the district court denying

plaintiff's motion to compel discovery.
David Petrucelli; Tracy A. Petrucelli, Husband and Wife v.
Bohringer and Ratzinger, GMBH Ausdereitungsanlagen; Jake Diel
Construction Machine, Inc.; Teco Electric and Machine Company,
Ltd. v. Excel Recycling & Manufacturing, Inc., No. 94-1425

BECKER, Circuit Judge, Concurring and Dissenting.


          I agree that summary judgment was properly granted to

Bohringer and Ratzinger, and that the motion to compel discovery

was properly denied, and hence I join in Parts IIA, C & D of the

majority opinion.   I also agree that the motion for default

judgment was properly denied.   I cannot, however, join fully in

Part IIB because I believe that good cause to extend the time for

service of process beyond 120 days was present in this case, and

hence I would remand with instructions to grant the 120 day

extension.18

18
 . The majority reviews the district court's decision as to the
presence of good cause under an abuse of discretion standard. I
do not believe the adoption of such a standard satisfactorily
accommodates the Congressional enactment of Rule 4(m). Under the
former Rule 4(j), the decision whether to extend the time for
service, while predicated on the existence of good cause, was
solely entrusted to the district judge's discretion.
Importantly, under the Rule 4(j) regime, what the reviewing court
did was to analyze the district court's entire decision whether
to extend the time for service or to dismiss the action.
Correspondingly, the appellate review of the district court's
decision under Rule 4(j) was appropriately conducted under an
abuse of discretion standard. See Lovelace v. Acme Markets, 

, 83 (3d Cir. 1987), cert. denied 

(1987);
Braxton v. United States, 

, 242 (3d Cir. 1987).
    However, as the majority correctly recognizes, under Rule
4(m) the inquiry is divided into two steps. If, as a factual
matter, good cause is found, the district court is duty-bound to
extend the time for service; in the absence of good cause, the
district court has discretion as to whether or not to dismiss or
extend the time for service. Given this regime, the majority's
                                I.

          In determining whether Petrucelli has set forth a

showing of good cause, the majority measures the action of

Petrucelli and his counsel against the principles laid down in

Lovelace and Braxton.   See Lovelace v. Acme Markets, 

(3d Cir. 1987), cert. denied 

(1987); Braxton v.

United States, 

(3d Cir. 1987).   Those cases also

involved instances where plaintiff's failure to properly execute

service resulted from counsel's ill-advised reliance on

representations made by an employed process server.   

("The facts, therefore, present a scenario of

unexplained delinquency on the part of the process server and

lack of oversight by counsel."); 

(finding "misplaced reliance upon the word of the specially-

appointed process server").   In my view, additional factors which

present a clearer showing of good cause take this case out of the
(..continued)
review of both decisions for an abuse of discretion is anomalous.
While the district court's latter decision should be reviewed for
an abuse of discretion, it appears that the good cause
determination itself has become a purely factual one, which
should appropriately be reviewed under a clearly erroneous
standard, since under the first step of the Rule 4(m) analysis
the district court has no discretion.
     In sum, this Congressionally mandated schema leaves no
alternative but to review the district court's good cause
determination under a clearly erroneous standard.
Notwithstanding this concern, I do not believe the distinction is
outcome determinative here, for I would conclude that the
district court erred in finding that Petrucelli failed to present
a showing of good cause under either a clearly erroneous or an
abuse of discretion standard of review.
Braxton/Lovelace category, and more closely align it with our

later opinion in Consolidated Freightways v. Larson, 

(3d Cir. 1987), cert. denied 

(1988).

            In defining the scope of the "good cause" exception, we

have equated it with the concept of "excusable neglect" of Fed.

R. Civ. P. 6(b)(2).   Dominic v. Hess Oil, 

, 517 (3d

Cir. 1988); see also 2 JAMES W. MOORE   ET AL.,    MOORE'S FEDERAL PRACTICE ¶

4.18[2] (2d ed. 1994) ("As for Rule 6(b)(2), there would seem to

be no practical difference between good cause for not serving

process and failure to serve process through excusable

neglect.").    Indeed, Petrucelli has requested an extension of

time under Rule 6(b)(2), which requires the district court to

grant an extension of time, "where the failure to act was the

result of excusable neglect."    Fed. R. Civ. P. 6(b)(2) (emphasis

added).    We have described excusable neglect as requiring "'a

demonstration of good faith on the part of the party seeking an

enlargement and some reasonable basis for noncompliance within

the time specified in the rules.'"      Hess 

(quoting Wright & Miller, FEDERAL PRACTICE   AND   PROCEDURES, § 1165

(1987)).   Both elements are present in this case.

                                 II.

           By all accounts, Petrucelli has acted in good faith.

In addition, Petrucelli has provided two reasonable bases, of a

type not present in either Braxton or Lovelace, for his counsel's
noncompliance: (1) his counsel's difficulty in locating the
defendant, Jake Diel Corporation, now Excel ("Jake Diel") within

120 days resulted from the corporation's recent name change to

Excel; and (2) the office of the Secretary of State of Oklahoma

had informed counsel that service of the defendant could be

effectuated through that office.

          Petrucelli and his counsel were initially under the

impression that Jake Diel was a Texas Corporation.    App. at 66.

However, when they were unable to find a listing for Jake Diel in

Texas, they turned their attention to the records of the

neighboring state of Oklahoma.   App. at 61-70.   When they made

inquiry, officials in the office of the Oklahoma Secretary of

State stated that Jake Diel was listed to do business in Oklahoma

and that service could be effected through their office as Jake

Diel's agent.   App. at 33.   The Oklahoma officials also stated to

counsel that their records reflected that Jake Diel had been

ousted by the Secretary of State of Texas on 11/1/91 for failure

to file the necessary reports.   App. at 32.   In response,

Petrucelli's counsel acting through process server, APS

International, Ltd., effected mail service upon the Secretary of

State of Oklahoma, who shortly thereafter informed them that Jake

Diel had been served via certified mail.   App. at 33.   It was

only after the 120 day time period had run that Petrucelli's

counsel realized that the defendant had not in fact been validly

served through the Oklahoma Secretary of State.    App. at 34; 67-

68.
           The majority contends that "the record is barren" of

any correspondence with the Oklahoma Secretary of State to

support Petrucelli's contention of excusable neglect.     Maj. Op.

at 16.   I disagree.   Attached to this dissent is a certificate

from the Oklahoma Secretary of State received by Petrucelli

certifying its acceptance of plaintiff's service of process on

Jake Diel's behalf.    App. at 69.   While the majority correctly

points out that Petrucelli's counsel failed to receive Form 18-A

(as is required to effectuate service made pursuant to FRCP

4(C)(2)(c)(ii)), I do not believe that such a mistake vitiates

the presence of good cause under the circumstances of this case.

At all critical times, counsel was under the impression that the

defendant could have been and was served through the Oklahoma

Secretary of State.

           In my view, the conduct of Petrucelli's counsel is more

analogous to the conduct of counsel in Consolidated Freightways

Corp. v. 

, than in Braxton or Lovelace.

In Consolidated Freightways we distinguished both Braxton and

Lovelace and found that the district court had abused its

discretion by failing to find excusable neglect where an

attorney's clerical error resulted in a failure to file a timely

notice of appeal, holding that such an error was excusable

neglect since,
          counsel's error was not the result of
          professional incompetence; that counsel is
          not attempting to create a facile excuse by
          which to extend the time for appeal, indeed
          counsel   gained   no   advantage  by   the
          misdirection; and that the type of human
          error   here   involved,   though   certainly
          avoidable, is neither readily foreseeable nor
          capable of anticipation by counsel.


Consolidated 

.   I find this

analysis to be applicable here.   Petrucelli's counsel's failure

to locate the defendant within 120 days, while avoidable, was not

sufficient to justify denying Petrucelli his day in court.      See

Wright & 

, at § 1137 ("If good cause is measured too

restrictively, then too many good faith plaintiffs may be treated

harshly.").

          Essentially, the reason Petrucelli was unable to

properly effectuate service was that the defendant had changed

its name from Jake Diel to Excel.   The question of the role of a

defendant's name change in a finding of good cause was not

addressed by the Braxton and Lovelace panels and has, to date,

never been addressed by this court.19   While as the majority

points out, it might have been possible for counsel to have

located the defendant through certain sophisticated searches the

failure to do so does not constitute inexcusable neglect

considering counsel's good faith efforts.

          Petrucelli's counsel, acting through APS International,

searched the Texas corporate records for a Jake Diel Corporation
19
 . Moreover, there is no reported federal opinion addressing
such a situation absent evidence of intentional evasion of
service. See, e.g. Ruiz Varela v. Sanchez Velez, 

(1st Cir. 1987) (remanding to the district court to reconsider
the plaintiff's claim of good cause).
and understandably was not able to locate the address of the re-

named defendant.     App. at 66.   The Consolidated Freightways panel

distinguished Braxton on similar grounds -- the presence of a

good faith effort on the part of counsel to comply with the

procedural time limit.     See Consolidated 

("Unlike the attorney in Braxton, counsel in this matter made

substantial good faith efforts to comply."); see also PaineWebber

Inc. v. Hartman, 

(3d Cir. 1990) (reversing a

district court's denial of an extension of time as an abuse of

discretion where "the notice of appeal was untimely despite

counsel's diligent efforts at compliance").

          Moreover, the facts of this case present an even more

compelling instance of excusable neglect than even Consolidated

Freightways, for there the failure to file a timely appeal was

the result of a clerical error made by counsel or someone under

counsel's control.    In this case, the plaintiff was misled into

believing that service could be made in Oklahoma not only by

their hired process server, but by the Oklahoma Secretary of

State, who indicated that service of process could and had been

made on the defendant through that office.     In support of this

reliance, Petrucelli points to his statement to the district

court during the 120 day period that Jake Diel had been served,

made in connection with his request for an extension of time in

order that proper service could be effectuated under
international law upon the German-based defendant, Bohringer &

Ratzinger.   App. at 141-45.

           In discounting Petrucelli's reliance on representations

made by the Oklahoma Secretary of State's office, the majority

equates reliance on representation made by a hired process server

with representations made by a government official.    In support

of this proposition the majority relies on an overly broad

reading of Braxton, concluding that "we have previously held that

reliance upon a third party or on a process server is an

insufficient basis... for granting an extension of time to effect

service.   

."   Maj. Op. at 16 (emphasis

added).    But Braxton dealt with representations made by a process

server hired by an attorney, and does not deal with, or even

mention, representations by "third parties."    It would be

astonishing indeed if Braxton stood for the proposition that any

reliance on third parties, including government officials holding

themselves out as agents of a defendant, would not suffice to

establish good cause.

           In addition, defendant Jake Diel was not prejudiced,

because it had actual notice of the commencement of the

litigation through the service of the cross-claim by the co-

defendant, Bohringer & Ratzinger.   The First Circuit has

recognized the danger of applying the service of process time

period "harshly and inflexibly," in the absence of prejudice to

the defendant.   U.S. v. Ayer, 

, 885-86 (1st Cir.
1988) ("Congress, we believe, intended Rule 4(j) to be a useful

tool for docket management, not an instrument of oppression.").

As was true in Ayer, this case presents "no meaningful

demonstration of any cognizable prejudice resulting to defendants

from the passage of additional time."    

absence of

prejudice, Petrucelli's failure to locate defendant Jake Diel,

given its change in name and the misleading representations by

government officials, constitutes good cause.

                                III.

            For the foregoing reasons, I conclude that the district

court erred in failing to extend for good cause the time for

service.    As I see it, the majority gives a narrow and wooden

reading of good cause which might deny the plaintiff, who lost

his left arm in an accident involving Jake Diel's machine, from

pursuing his claim against a defendant who had actual notice of

the suit.   As Justice Black reminded us, some 40 years ago, the

"principal function of procedural rules should be to serve as

useful guides to help, not hinder, persons who have a legal right

to bring their problems before the courts."     Order Adopting Rules

of the U.S. Supreme Court, 

, 946 (April 12, 1954).

Considering the substantial good faith efforts of Petrucelli's

counsel to serve the defendant in this action, I believe that

good cause to extend the time for service of process beyond 120

days is present.   I would therefore reverse and remand with

instructions to grant an extension of 120 days within which to
effect service on defendant Jake Diel.   To that extent, I

respectfully dissent.