Christopher 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?