Article of the Day: Christopher Voltz on the Hague Service Convention in Pennsylvania

Stained glass window of St. George and the DragonChristopher L. Voltz, a lawyer in private practice in Pittsburgh, has a new article on the practicalities of the Hague Service Convention in civil actions in the Pennsylania state courts: Slaying the First Dragon: Pennsylvania’s Unique and Cheap Method for Serving Chinese Defendants Pursuant to the Hague Convention, 33 Pennsylvania Lawyer (Nov/Dec 2011). I want to briefly critique his suggestions for reducing the expense and burden of complying with the Convention’s central authority provisions.

Voltz notes that it can be expensive and time-consuming to translate documents into a foreign language for service via a central authority. He suggests that Pennsylvania plaintiffs can reduce the expense by taking advantage of Rule 1007 of the Pennsylvania Rules of Civil Procedure, which provides:

An action may be commenced by filing with the prothonotary

(1) a praecipe for a writ of summons, or

(2) a complaint.

(By the way, may I say that I love the fact that Pennsylvania still has a court called the Court of Common Pleas and that it still has a prothonotary!)

According to Voltz, it’s permissible in Pennsylvania practice to begin the lawsuit by serving the writ of summons and then later serving the complaint. So Voltz’s suggestion is that a plaintiff could translate the one-page writ of summons, which is cheap and easy, serve it via the central authority, and then later serve the complaint by mail on the defendant abroad, without a translation.

I don’t think this is right. First, the Convention does not simply apply to service of process. It applies whenever “there is occasion to transmit a judicial or extrajudicial document for service abroad.” Convention, art. 1. If the foreign defendant has not yet appeared in the action, it will be necessary to serve the complaint on him abroad (i.e., to transmit it to him abroad). Since the Convention is mandatory, service must be by one of the methods the Convention permits.

Second, Voltz uses a Chinese defendant as his example. But China has expressly objected to service of documents via the postal channel.

All that being said, Voltz write that he “has successfully defended this method against preliminary objections.” I don’t want to argue with success! But even if the Pennsylvania courts (erroneously in my view) were to permit this maneuver,  would the Chinese courts recognize or enforce the Pennsylvania judgment in such circumstances?

Photo credit: snigl3t (license)

6 responses to “Article of the Day: Christopher Voltz on the Hague Service Convention in Pennsylvania”

  1. Chinese courts never enforce US judgments anyway. But I still agree with you in that I do not think that this complies with the Hague for the reasons you mention, which means that eventually some higher PA court is likely to strike this method down.

    1. Good point! But we should dare to dream, right?

  2. I had a good email exchange with Chris Voltz today. Chris pointed to language in the Volkswagen case suggesting that the Supreme Court understands “judicial document” to refer only to documents necessary to effect service of process. I pointed to language from the Convention itself and the Hague Conference’s Practical Handbook on the Convention, which makes it clear that the term “judicial documents” is to be construed broadly. I think Chris is overreading Volkswagen, but in any event the issue is more complicated than my post let on. So I will refine this in the near future.

  3. […] more or less, the same point that Pennsylvania lawyer Christopher L. Voltz made in an article that I reviewed on November 7, 2011. I pooh-poohed his idea then, but now that it has been adopted by a state supreme court I guess I […]

  4. […] later documents, must be served in accordance with the Convention. This view is in accord with the the view of Pennsylvania lawyer Christopher Voltz, the Supreme Court of Colorado’s holding in Willhite v. Rodriguez-Cera, and some dicta in […]

  5. […] the same point that Penn­syl­va­nia lawyer Christo­pher L. Voltz made in an arti­cle that I reviewed on Novem­ber 7, 2011. I pooh-poohed his idea then, but now that it has been adopt­ed by a state supreme court I guess I […]

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