Thursday, July 7, 2011

Good Faith Effort Still Required for Service of Process

In the case of Yafai v. Quire, PICS Case No. 11-1130 (Monroe Co. April 18, 2011, Vican, P.J.), the Court dismissed a Plaintiff’s Complaint, with prejudice, due to the Plaintiff’s failure to establish that they made a good faith effort to serve the original Writ of Summons upon the Defendant.

In this motor vehicle accident matter arising out of an incident that occurred on April 29, 2006, the Plaintiffs filed a Writ of Summons on April 22, 2008. The Sheriff filed an Affidavit of “No Service” on the Writ of Summons on May 7, 2008. The Court noted that there were no entries in the docket indicating that the Plaintiff made any additional attempts to serve the Defendant or that they requested that the Writ of Summons be reissued.

Eventually, counsel for the Defendant entered an appearance in October of 2010 and the Plaintiff followed with the filing of a Complaint on January 14, 2011, which was more than two years after the lawsuit was commenced. The Court also noted that there was no record that the Plaintiff attempted to serve a copy of the Complaint upon the Defendant.

In dismissing the Complaint, the Court found that the Plaintiffs failed to comply with the service requirements as set forth in Pennsylvania Rules of Civil Procedure. The Court was also influenced that the Defendant’s knowledge of the suit did not result from the Plaintiffs’ efforts to effectuate service.
The Court also noted that the Plaintiffs’ course of conduct of “sitting idly by while the clocks ticks away,” stalled the legal machinery they had set in motion with the filing of the Writ of Summons back in April of 2008. The Court therefore determined that the Writ of Summons was no longer effected that tolled the statute of limitations as that document remains effective only if a Plaintiff refrains from conduct that serves to stall the legal action set in motion.

As such, the Defendant’s Preliminary Objections were sustained and the Complaint was dismissed with prejudice.

Anyone desiring a copy of the Yafai decision may contact the Pennsylvania Law Weekly Instant Case Service at 1-800-276-7427, provide the PICS Case No. noted above and pay a small fee to secure a copy.

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