Courts will not give the benefit of doubt, even in the face of a pandemic, to excuse lack of good faith effort to serve a complaint.
The plaintiff alleged that the defendant’s nursing staff failed to adequately treat his pressure wounds. The plaintiff filed a complaint on September 23, 2020, and failed to serve the defendant within 30 days after filing the complaint. The plaintiff also failed to reinstate the complaint.
The defendant filed preliminary objections based on improper service of process. In opposition to the preliminary objections, the plaintiff argued that he attempted to serve the complaint, but his process server was informed that there was no one available at the defendant’s offices to accept service due to the COVID-19 pandemic. Therefore, the plaintiff argued that service could not be completed due to the defendant’s failure to leave anyone in charge to accept service. The plaintiff contended that he was unable to find an agent of the defendant who would accept service of his complaint. The trial court was not receptive to this argument and dismissed the complaint.
On appeal, the Superior Court of Pennsylvania observed that the law requires that a plaintiff must make a good-faith effort in diligently and timely serving process on a defendant. When a defendant presents a factual dispute as to whether a plaintiff fulfilled this duty, the plaintiff carries an evidentiary burden to demonstrate that he met this requirement. If a plaintiff presents credible evidence that there was a good faith attempt at service, then the requirement is fulfilled. However, in contrast, if a plaintiff does not present such evidence, then he fails this evidentiary burden, regardless of whether his actions (or inaction) were intentional, unintentional or otherwise.
In this case, the court concluded that the plaintiff failed to produce evidence to show he acted diligently in making a good-faith effort to serve the defendant with notice that he had filed his complaint. The court observed that lack of due diligence was apparent in this case and the attempt to blame the COVID-19 pandemic was not a sufficient excuse.
This case demonstrates that courts will not give the benefit of doubt, even in the face of a pandemic, to excuse a lack of good faith effort to serve a complaint. Defense counsel should be careful about evaluating what efforts a plaintiff has made to serve the complaint and, if appropriate, this argument should be raised via preliminary objections. Based on the facts outlined in this case, courts seem to require more than just a singular attempt to effectuate service.
Case Law Alerts, 1st Quarter, April 2022 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.