Case Dismissed For Lack of Activity Where Plaintiff Did Not Document Any Steps To Complete Service

In the case of Villacreses v. Kalahari Resorts, No. 4259-CV-2023 (C.P. Monroe Co. April 17, 2024 Zulick, J.), the court granted the Defendants’ Preliminary Objections against the Plaintiff’s failure to timely serve original process and also due to the fact that the statute of limitations had expired.

According to the Opinion, the case involved a slip and fall that occurred on August 1, 2021.

The Complaint was filed on July 12, 2023 but was not served on the Defendants with in the thirty (30) days required by Pa. R.C.P. 401(a).

Approximately three (3) months later on October 11, 2023, the Complaint was reinstated. The reinstated Complaint was served on the Defendants on October 23, 2023 and on another set of Defendants on November 1, 2023. The Defendants then filed the Preliminary Objections at issue.

In its decision, the court noted that, in the Plaintiff’s Response to the Preliminary Objections, the Plaintiff did not provide any further information about her efforts to obtain service. Nor did the Plaintiff request a hearing to present evidence on her efforts to make service. Nor did the Plaintiffs submit any documentary evidence or depositions on the issue.

Although the Plaintiffs asserted in their response that they did make efforts, the court noted that the court’s docket did not reflect any action on the Plaintiffs’ part from the date of the filing of the Complaint in July of 2023 until a Praecipe to Reinstate was filed in October of 2023, three months later.

Judge Zulick noted that, based upon the recent Supreme Court precedent, including the Gussom decision, where the evidentiary burden is placed upon the Plaintiff to show a good faith effort to complete service and where the law states that “proof” is required, the Plaintiff cannot rely upon a docket that shows no activity or a response to Preliminary Objections that does not detail any good faith effort to complete service.  Judge Zulick also noted that a Plaintiff cannot rely upon statements in a Brief in opposition to the Preliminary Objections. 

The court noted that, in this case, similar to the facts in the Gussom case, an attempt at service was timely made by the Sheriff, but the Plaintiff allowed 3 ½ months to then go by from that point with no further activity.

Judge Zulick reiterated that the Supreme Court made clear in Gussom that a Plaintiff’s attorney must make a record of the good faith attempts that have been completed to obtain service.  Given that no such record was created in this matter, the court sustained the Preliminary Objections based upon a lack of timely service and dismissed the Complaint.

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