Robert Maizel Presents Argument to the Pennsylvania Supreme Court
What constitutes a good faith effort to effect service?
Is the court seeking to revamp Lamp v. Heyman, 366 A.2d 882 (Pa. 1976) and McCreesh v. City of Phila., 888 A.2d 664, 671 (Pa. 2005)?
On Wednesday, September 16, 2020, Robert Maizel presented argument to the Pennsylvania Supreme Court on the issues of what constitutes a good faith effort of service in the Commonwealth.
On January 3, 2019, the Trial Court rendered its Opinion, holding that the Appellant did not make a good-faith effort to effectuate service upon the Appellee, and that Appellant’s inability to perfect timely service of process amounted to an intent to stall the judicial machinery. This decision was rendered after the Appellant made attempts to serve the Defendant at his last know address in Philadelphia; tracked him down in Virginia; and then finally found him back in Philadelphia. Even moreover, the Defendant’s insurance carrier, Nationwide, knew of the whereabouts of the Defendant, but refused to provide them to the Appellant. Counsel for the Defendant entered his appearance and participated in the action, still claiming lack of service even though his carrier knew of the whereabouts of the Defendant.
This matter came before the Superior Court, and was argued on May 22, 2019. On September 26, 2019, the Superior Court rendered its opinion, with the majority holding that Appellant had acted in a manner which stalled the judicial machinery, while the dissent held that the Appellant had made a good-faith effort to effectuate service upon the Appellee.
The question of whether strict compliance with the rules of civil procedure is required to meet the good-faith test set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), is a pure question of law, over which this Court’s review is plenary. McCreesh v. City of Phila., 888 A.2d 664, 671, n.15 (Pa. 2005). As outlined in Farinacci v. Beaver County Industrial Dev. Authority, “in each case, where noncompliance with Lamp is alleged, the court must determine in its sound discretion whether a good-faith effort to effectuate notice was made.” 511 A.2d 757, 759 (Pa. 1986). Accordingly, the lower court’s decision is reviewed for abuse of discretion. Id; see, Witherspoon v. City of Phila., 768 A.2d 1079, 1083 (Pa. 2001).
Robert Maizel argued that the Superior Court erred as a matter of law, when it relied upon case law, which subverts the spirit and purpose of the current Pennsylvania Supreme Court precedent. The decisions of both Englert and Devine upon which the Superior Court relied, state that conduct, which is unintentional, but works to delay a defendant’s notice, constitutes a lack of good-faith. These cases diverge from the decisions made by this Court in Lamp, Farinacci and McCreesh. As such, the Superior Court’s reliance on these decisions, in determining the Appellant did not make a good-faith effort to serve the Appellee, is erroneous. Mistake, or other unintentional conduct, cannot be held to rise to the level of conduct that is deemed to be intentional, and summarily viewed to constitute a lack of good-faith.
Thus, the Superior Court’s reliance on a line of cases, in this matter, which are inapposite to the decisions rendered by this Court, led the Superior Court to render a decision in contravention with the current Supreme Court precedent and caused the Superior Court to overlook Appellant’s good-faith effort to effectuate service of the complaint. Through an application of current precedent established in Lamp and its progeny, it is clear that the Appellant made a good-faith effort to serve the Appellee, and in no way acted in a manner that was intended to stall the legal machinery she put into motion when the Appellant filed her complaint. The Supreme Court has held since the 1970s that intent is the key element to find that a party has stalled the judicial machinery or not made a good faith effort to effect service.
The Supreme Court has taken this matter under advisement, and shall render a decision that will shape the landscape on the issue of proper service attempts and the stalling of the judicial machinery in the Commonwealth of Pennsylvania.
To watch Robert Maizel argue before the Pennsylvania Supreme Court, please click here.
Robert Maizel is an Experienced Trial Attorney and Appellate Attorney in Philadelphia, Pa. with almost twenty years of trial and appellate experience. Call 215-695-3000 for a free consultation.
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We have offices located in both Center City Philadelphia and Jenkintown, Pennsylvania. Attorney Robert Maizel is Special Counsel at the Law Offices of Saffren & Weinberg.
Call us at 215-695-3000 to schedule your free consultation.