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696 A.2d 237

Johnson v. Stuenzi

Superior Court of Pennsylvania

Decided July 2, 1997

Superior Court of Pennsylvania · decided 1997-07-02

Cited by 2 later decisions — most recently August 2007

2 state decisions

Relies on Bywaters v. Bywaters · Clauso v. Tard

Good law ✅— No negative treatment on recordhow we know

Decided 1997-07-02

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FORD ELLIOTT, Judge,

¶1concurring.

¶2I join in the holding and rationale as set forth by the the majority. I write separately only to note that, while the majority does not set forth the respective burdens of proof applicable under its analysis, I assume the majority is adopting the “shifting burden” approach articulated by the federal district court in Bywaters v. Bywaters, 721 F.Supp. 84 (E.D.Pa.1989), affirmed, 902 F.2d 1559 (3d Cir.1990). Under the Bywatersanalysis, a plaintiff must establish, by a preponderance of the evidence, that the defendant is no longer a resident of Pennsylvania for purposes of § 5532(a). Once plaintiff meets its burden, the burden shifts to defendant, who usually bears the burden of proving an affirmative defense. The defendant must show it falls within the exception to the general tolling rule found in § 5532(a). Defendant does so by proving by a preponderance of the evidence that, through the exercise of due diligence, plaintiff could have located defendant outside the Commonwealth and served defendant there by certified mail, as permitted by § 5532(b)(3). Id. at 88.

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