Tuesday, June 13, 2023

Trial Court Dismisses Case Due to Lack of Proper Service in a Timely Fashion

In the case of Brown v. Gilman, No 21-CV-4724 (C.P. Lack. Co. May 11, 2023 Nealon, J.), the court sustained a Defendant’s Preliminary Objections pursuant to Pa. R.C.P. 1028(a)(1) asserting a lack of proper service of original process within the two-year statute of limitations.

After reviewing the record before him, Judge Nealon noted that this was not a case were a Plaintiff actually served the Defendant with original process by an improper mode of service within the applicable statute of limitations.

Rather, the court found that the conduct of the Plaintiff in this case was akin to the service efforts seen by Plaintiffs in other cases who were unsuccessful with an initial attempt at service, but then made no further efforts to serve a Defendant by reinstating the Complaint or seeking leave of court to use an alternative form of service under Pa. R.C.P. 430. 

Here, the court noted that there was an almost eighteen (18) month period of time between the time that notice was received from the Sheriff that the Defendant was never served with original process before any attempt was made by the Plaintiff to reinstate the Complaint and complete service.

As such, the court found that the Plaintiffs have failed to satisfy their burden of demonstrating that they acted diligently in making a good-faith efforts to timely complete service upon the Defendant with original process and notice of the lawsuit.

Judge Nealon also noted that, under Pennsylvania law, providing notice to the Defendant’s carrier cannot serve as a substitute to actual service upon a Defendant.

The court emphasized that service of process is the mechanism by which a court obtained jurisdiction over a Defendant and, absent proper service, the court does not possess jurisdiction.

As such, the court sustained Defendant’s Preliminary Objections and entered judgment in favor of the Defendant.

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

Source of image:  Photo by Karolina Grabowska on www.pexels.com.

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