Thursday, August 12, 2021

Plaintiff Allowed To Correct Defective Service on NY Defendants


In the case of O’Mara v. Perez, No. 4685-CIVIL-2020 (C.P. Monroe Co. June 4, 2020 Williamson, J.), the court reviewed Preliminary Objections filed by a Defendant alleging defective service of the Complaint and other objections.

According to the Opinion, this case arose out of an incident during which the Plaintiffs were allegedly hurt while guests at the Camelback Lodge's indoor waterpark.  Certain Defendants who allegedly assaulted the Plaintiffs at the resort resided in New York City. Plaintiff’s counsel filed a Writ and attempted to serve those Defendants.

The court noted that one of the Defendants who had filed Preliminary Objections had admittedly received a copy of the pleadings from her brother who had received the original process at his address.  The record also revealed that that same Defendant had also called Plaintiff’s counsel on at least two (2) occasions to request additional time to hire an attorney.  Plaintiff’s counsel did grant the Defendant additional time. 

After reviewing the Rules of Civil Procedure regarding service of process on a Defendant located outside of the Commonwealth of Pennsylvania, Judge David J. Williamson of the Monroe County Court of Common Pleas noted that the Defendant at issue asserted that she did not live at the property at which service was sent. Rather, her mother and her brother resided at that residence. The Defendant denied that her mother or brother had authority to accept service as her agent.

The court found that the testimony secured at a hearing on the issues presented supported a conclusion that the Defendant at issue did not reside at the address where the Writ was served.

The court noted that the burden then shifted to the Plaintiff who was unable to prove that the address where the Writ was served was the Defendant’s address.  The Court found that the Plaintiff was not able to meet this burden.  The court also found that the Plaintiff additionally failed in the burden of proving that the signers on the return receipt were authorized to accept mail on behalf of the Defendant.

As such, the court found that the service of the Writ on the Defendant at issue was indeed defective.

However, the court decided not to dismiss the action as to that Defendant. Rather, the court set aside that service of process that was completed at the incorrect address and allowed the Plaintiff’s attorney another opportunity to properly complete service. It appears from the Opinion that the court was influenced to rule in this fashion given that Plaintiff’s counsel had sufficiently explained reasonable steps that were taken to find and serve that Defendant. The court also reiterated that the Defendant at issue had admittedly received a copy of the process from her brother and had even called Plaintiff’s counsel and confirmed that she received a copy and was requesting more time to obtain legal counsel.

Under these facts, the court found, under the words of Lamp v. Heyman, that there was no evidence that the Plaintiff attempted to stall the legal machinery that she had set in motion.  Rather, the court found that the record established that Plaintiff’s counsel had acted in good faith to both locate and attempt to serve the Defendant at issue.

Judge Williamson additionally noted that there was no evidence of any prejudice suffered by the Defendant. Rather, the evidence showed that the Defendant at issue had knowledge of the lawsuit and even called Plaintiff’s counsel to request additional time to secure an attorney.

As such, the court issued an Order sustaining the Demurrer as to improper service of the Writ. However, the court did not dismiss the action but, instead, directed the Plaintiff to make service of the Writ on the Defendant at issue in a manner consistent with the Rules of Civil Procedure after the Writ is reissued.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 13, 2021).

Source of Image:  Photo by Daniel Bendig from Pexels.

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