Monday, May 20, 2019

Judge Shurtleff of Sullivan County Addresses Service of Process Issues

In the case of Pennsylvania Electric Co. v. Antoine’s Timbering, Inc., No. 2016-CV-50 (C.P. Sullivan Co. Oct. 20, 2018 Shurtleff, P.J.), the court granted a Defendant’s Motion for Judgment on the Pleadings based upon a Plaintiff’s failure to complete service of original process within the applicable statute of limitations in this negligence cause of action.

According to the Opinion, this property damage matter arose out of the Defendant timbering company’s alleged negligent cutting of a tree on April 25, 2015 causing it to hit the Plaintiff’s facilities including telephone poles and wires.  

The Plaintiff instituted this action by filing a Complaint on March 7, 2016.   A little over a month later, on April 19, 2016, the Sullivan County Sheriff’s office filed an Affidavit indicating that service of process on the Defendant had not been perfected as the Sheriff was provided with an invalid address.  

Thereafter, the statute of limitations expired a little over a year later on April 25, 2017.  The court noted that the next docket entry following the previous Sheriff’s Return of Service was not lodged until October 27, 2017 when the Plaintiff filed a Praecipe to Reinstate the Complaint, which was approximately eighteen (18) months later.  

The court noted that, while the Complaint was filed within the statute of limitations and promptly provided to the Sullivan County Sheriff’s Department, service was not effectuated. The Plaintiff then waited approximately eighteen (18) months to reinstate the Complaint.   The court noted that simply waiting eighteen (18) months to reinstate a Complaint on the basis that the Plaintiff’s attorney was unable to locate the Defendant in the interim was not conduct of good faith.  

As such, the court granted judgment on the pleadings on favor of the defense after finding that the Plaintiff’s course of conduct in taking no action to locate the Defendant for such a prolonged period of time served to unnecessary delay the legal process in violation of the case of Lamp v. Heyman and its progeny.  

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

I send thanks to Attorney Stephanie Hersperger of the Harrisburg, PA office of the law firm of Pion, Nerone, Girman, Windslow & Smith, P.C. for bringing this case to my attention.   

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