Friday, January 20, 2017

Judge Gartley of Luzerne County Addresses Service of Process Issues



In her recent decision in the case of Nicholas v. Zolner, No. 2013-CV-9828 (C.P. Luz. Co. Dec. 29, 2016 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas issued a Pa. R.A.P. 1925 Opinion in support of her previous Order sustaining the Defendant’s Preliminary Objections which asserted that the Plaintiff’s case should be dismissed for failing to serve the Defendant with original process.  

The court sustained the Defendant’s Preliminary Objections after finding that the Plaintiff failed to file the Writ of Summons upon the Defendant as required by the Pennsylvania Rules of Civil Procedure and Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) and its progeny. 

The Plaintiff filed an appeal from that decision and Judge Gartley issued this Pa. R.A.P 1925 Opinion to outline her reasoning to the Pennsylvania Superior Court.  In her Opinion, Judge Gartley provides a detailed analysis of the rules surrounding proper service of process.  

Judge Tina Polachek Gartley
Luzerne County
The court not only found that the Plaintiff failed to complete service but also rejected the Plaintiff’s argument that the party Defendant was put on notice of the lawsuit because the Plaintiff was in contact with the Defendant’s insurance company prior to the lawsuit being filed.    

Judge Gartley noted that the Superior Court has held that notice to an insurance company or its attorney of the filing of a lawsuit is insufficient to toll the statute of limitations when there has been no good faith effort to serve the actual Defendants.  

Anyone wishing to review a copy of this decision may click this LINK.

The prevailing defense attorney in this matter was Attorney Stephen T. Kopko of the Foley, Comerford & Cummins insurance defense law firm in Scranton, Pennsylvania.  


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