In a recent pair of non-precedential decisions, the Pennsylvania Superior Court re-affirmed the importance of good faith efforts to serve process on defendants. In Wimbs v. Wolfson, No. 927 WDA 2022, 2023 WL 5607356 (Pa. Super. Ct. Aug. 30, 2023), the plaintiff initiated the action by filing a Writ of Summons one day prior to the two-year statute of limitations expiring. The Writ was reissued ten times from December 2020 through September 2021 with a single attempt at service, via a sheriff, who advised the plaintiff that his service attempt was to an incorrect address. After a Complaint was filed years later, the defendant filed Preliminary Objections seeking dismissal due to a lack of good faith efforts to serve the Complaint. The trial court granted the Preliminary Objections.
The Superior Court agreed, finding that there was no indication that the plaintiff made a diligent effort to locate defendant’s then-current address to effectuate proper service after the unsuccessful attempt to serve by sheriff. Additionally, the Court explained that the plaintiff did not file the Complaint until three and a half years after the incident giving rise to his claims occurred. Plaintiff’s lack of effort worked to delay the notice of the action and rendered his allegations stale. The Wimbs Court further rejected the plaintiff’s arguments that a lack of prejudice should preclude dismissal or, alternatively, that service was effectuated when the defendant’s counsel entered an appearance on his behalf. The Court explained that nothing in the record suggests that the defendant’s counsel was authorized to or ever accepted service on his client’s behalf. Further, the lack of prejudice in this case was immaterial, where no notice of the filing prior to the statute of limitations occurred and no formal service was ever effectuated after the statute of limitations had expired. While the Court stressed that procedural technicalities will typically not lead to outright dismissal, where procedural lack of compliance is egregious, no prejudice requirement exists.
Conversely, in Harrigan v. Forsythe, No. 1421 MDA 2021, 2023 WL 4290271 (Pa. Super. Ct. June 30, 2023), reargument denied (Sept. 7, 2023), the Superior Court reversed the trial court’s decision to dismiss the Complaint for lack of good faith of service. In Harrigan, the plaintiff filed a Complaint on January 12, 2021, obtained a process server, and filed affidavits of service in reliance of the process server’s representation that the Complaint was served. The defendants sought dismissal of the case for lack of good faith efforts to properly serve the Complaint because the Complaint was served via a private process server as opposed to the sheriff, as required under the Rules of Civil Procedure. The plaintiff countered that the defendants received actual notice of commencement of the action against them within thirty days of the Complaint being filed and they were aware that the affidavit of service was filed on the docket. The trial court dismissed the matter, but the Superior Court reversed, explaining that Pennsylvania has moved away from a “rigid compliance requirement” or a “mechanical approach” to the “good faith” effort rule regarding a plaintiff’s duty to secure service. The Court found that the plaintiff attempted to comport with the notice of service requirement via multiple endeavors: she filed the affidavit within the statute of limitations and provided actual, albeit defective, notice when she employed private process servers, as opposed to a sheriff, to serve the Complaint on the three defendants. The defendants did not allege that they never received the Complaint from the private process servers, and the Court therefore concluded that the defendants both were put on notice of the impending lawsuit and did not endure any unfair surprise or prejudice. In turn, the Superior Court found that the plaintiff’s actions clearly conveyed her diligence and effort to comply with the service requirement. Likewise, there is no evidence that the plaintiff engaged in a course of conduct to forestall the “legal machinery” that she set in motion after filing her complaint. In turn, the dismissal of the Complaint was reversed.
Both cases show the Superior Court’s balancing of good faith effort requirements to timely serve complaints against “procedural technicalities,” wherein a defendant that receives actual notice of the suit and seeks to dismiss a complaint for failure to properly serve process the plaintiff undertook due diligence to serve. Based on this balancing test created by the Superior Court, litigants on “both sides of the v” should undertake to review the service efforts in any given case to assess whether dismissal is warranted under the facts of a given case.
The Wimbs decision can be found here.
The Harrigan decision can be found here.
For additional questions, please contact Regan Curran, Esq., Glen Shikunov, Esq. and/or Scott Tredwell, Esq.
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