Friday, February 23, 2024

Motor Vehicle Accident Case Dismissed for Lack of Timely Service of Process

In the case of Irizzary v. Henry, No. 2230-CV-2022 (C.P. Monroe Co. Jan. 31, 2024 Zulick, J.), Judge Arthur L. Zulick of the Monroe County Court of Common Pleas granted a Defendant’s Preliminary Objections in a motor vehicle accident case alleging that the Plaintiff had failed to timely complete service of process in good faith.

According to the Opinion, the Plaintiff immediately attempted to serve the Writ on the Defendant after the lawsuit was filed. T he lawsuit was filed five (5) days before the day the statute of limitations expired.

The Sheriff’s Return of Service indicated that there were no trespassing signs on the Defendant’s property such that the Sheriff’s Deputy would not enter the premises without a court Order authorizing entry onto the property.

At that point, seven (7) months passed without any docket activity.

The Plaintiff then filed a Motion for Special Service seeking to serve the Defendant by publication.

The court did not grant that request to serve the Defendant by publication but instead issued an Order authorizing the Sheriff to go on to the Defendant’s property to serve the Writ. In the Court Order, it was indicated that, if this additional effort of service was unsuccessful, the Plaintiff was then ordered to file a Motion for Service by Publication.

According to the docket, the Sheriff did not take action upon the Order alone. The court noted that it was incumbent upon the Plaintiff at that point to seek the issuance of the Writ and to request service of the Writ in accordance with the Order.

The record showed that the Plaintiff took no action.

Thereafter, the court nevertheless issued a Case Management Order scheduling the case for trial and directing the parties to complete discovery.  Eventually, the defense counsel entered his appearance and filed a Rule to File Complaint, all of which could be accomplished without waiving the arguments about lack of timely service.  The Plaintiff took no further action of record until he thereafter filed a Complaint, which amounted to another lengthy delay without service being completed.

After reviewing the current status of the law regarding the requirements that a plaintiff make timely and good faith efforts to complete service of process, the court noted that the delays found in other cases in which the court had dismissed the cases were much shorter than the period of delay presented in this case.  In this case, the delay in service of process amounted to seventeen (17) months of delay between the filing of the original Writ and the service of the Complaint, with the Writ never having been reissued along the way.

Accordingly, the court found that the Plaintiff had not met his burden of showing a good faith effort to complete service of original process. As such, the court granted the Defendant’s Preliminary Objections in this regard and dismissed the case.

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

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