Thursday, August 29, 2019

Judge Zulick of Monroe County Addresses Services of Process on Out-of-State Defendants

In the case of Pacheco v. Pacheco, No. 5445-CV-2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), the court dismissed a motor vehicle accident after finding that the Plaintiffs failed to establish that they attempted service upon the Defendants in good faith.  

The court noted that the Defendants resided in another state and the Plaintiffs had attempted to serve them by certified mail.  

The case arose out of a motor vehicle accident that occurred in July of 2016. 

The certified mail return receipt for one (1) Defendant was signed by a person with a different first name and with no last name listed.  The receipts contained no indication that the person who signed the receipt was a person authorized to accept service on behalf of that Defendant. The court noted similar problems with the attempt at service by certified mail upon the other Defendant, again emphasizing there was no indication that the person who signed the receipt was authorized to accept service on behalf of that separate Defendant.

The Defendants eventually filed Preliminary Objections in March of 2019, asserting that serve had not been completed properly.   The court noted that the Plaintiff did eventually make personal service on the Defendants on April 8, 2019. 

The court granted the Preliminary Objections, emphasizing that the certified receipts were signed by an unknown person and that the receipts were unclear as to whether this person, in any event, was an authorized agent capable of accepting service on behalf of either Defendant.  As such, the Plaintiffs were found to have failed in their burden of showing that either of the Defendants or any authorized agents of the Defendants had signed the return receipt.  

Suit was filed a few days before the expiration of the statute of limitations.

Judge Arthur L. Zulick
Monroe Co.
Judge Zulick noted that a Pennsylvania case law on the issue of proper service indicated that compliance with the service rules were generally enforced in a strict fashion, although a few cases did allow for a more flexible approach, particularly where there was evidence that the Defendant had actual notice of the pending lawsuit.   

Judge Zulick distinguished the case before him from those flexible view cases by noting that there was nothing in the records to indicate that the Defendants in this matter had actual notice of  the lawsuit.  

As such, the court concluded that the Plaintiffs had failed to satisfy the good faith element of attempted service.  As noted, the Defendant’s Preliminary Objections were granted and the case dismissed.  

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (August 6, 2019). 

In another decision issued on the same date the companion case of Pacheco v. Moore, et al., No. 5475 CV 2018 (C.P. Monroe Co. July 1, 2019 Zulick, J.), Judge Zulick came to a similar result.

The case of Pacheco v. Moore involved a motor vehicle accident that occurred on July 24, 2016. 
The Plaintiff filed Complaint July 20, 2018 and attempted to serve two out-of-state defendants on August 8, 2018 via certified mail. 

The Plaintiff never filed any affidavit of service with respect to either Defendant. 

The out-of-state Defendants filed Preliminary Objections on March 20, 2019 based on improper service. 

In response to the Preliminary Objections, the Plaintiff filed two identical USPS proofs of delivery dated August 8, 2018.  The signatures on both proofs of delivery were identical and illegible. 
Moreover, the tracking receipts for these proofs of delivery merely stated that the Complaints were “left with an individual.”

The Court sustained the Preliminary Objections and held that the return receipts submitted by Plaintiff did not comply with Pa.R.C.P. 405(b) which requires a return of service to include the identity of the person served and any other necessary facts for the Court to determine whether proper service has been made. 

Judge Zulick also applied an analysis under Lamp v. Heyman to conclude that Plaintiff’s course of conduct did not demonstrate a good faith attempt at service of process within the prescribed statute of limitations and and that Plaintiff’s neglect had stalled the progress of the action against the out-of-state Defendants.

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

I send thanks to Attorney Jason A. Statler of the Lemoyne, PA law firm of Johnson, Duffie, Stewart & Weidner for bringing this Pacheco v. Moore decision to my attention.

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