Grove v. Guilfoyle
Grove v. Guilfoyle
Opinion of the Court
MEMORANDUM OPINION AND ORDER
This is a personal injury action arising from an August 19, 2003 motor vehicle acci
Since filing the instant action, Plaintiff has made three separate attempts to locate and/or serve Defendant Guilfoyle. First, on February 5, 2004, he sent copies of the summons and Amended Complaint via certified and regular' mail to the New Bedford, Massachusetts address that Defendant Guilfoyle provided to Plaintiff at the time of the action. The United States Postal Service (“USPS”) returned the certified mail as “attempted, not known.” The regular mailing was not returned by either Defendant Guilfoyle or USPS. Second, Plaintiff contacted counsel for HYL, who stated HYL did not know Defendant Guilfoyle’s current address. Third, Plaintiff submitted to USPS a Request for Change of Address regarding Defendant Gu-ilfoyle. USPS returned the form, marking “Moved, left no forwarding address.”
Plaintiff argues that Defendant Guilfoyle is deliberately evading service and that an order permitting alternative service should issue. He also advances a practical argument, averring that because Defendant Guilfoyle allegedly was acting in the course and scope of his employment with HYL at the time of the accident, “upon information and belief’ counsel for HYL will “undoubtedly” assume Defendant Guilfoyle’s defense once alternative service is completed.
Under Federal Rule of Civil Procedure 4(e), service may be effected pursuant to the law of the state in which the district court sits. In the context of this case, the Pennsylvania Rules of Civil Procedure permit service of original process outside the Commonwealth: (1) by personal service as provided in Rule 402(a); (2) by mail as provided in Rule 403; and (3) as permitted by the law of the jurisdiction in which service is to be made.
Rule 430(a) provides that “[i]f service cannot be made under the applicable rule [here, Rule 404], ... the plaintiff may move the court for a special order directing the method of service.”
Here, Plaintiffs efforts fall far short of Rule 430(a)’s requirements. It is clear that other avenues exist whereby Plaintiff may yet locate Defendant Guilfoyle. Some other reasonable methods are suggested by the Note to Rule 403, other courts, and the record before this Court: (1) examining voter registration records, local tax records, motor vehicle records and other public documents; (2) inquiring of Defendant Guilfoyle’s former neighbors in New Bedford or his former coworkers at HYL; (3) reviewing the police report of the accident at issue (if one exists) for further information concerning Defendant Guilfoyle; and (4) examining local telephone directories.
Before permitting service of process by posting and/or publication,
An appropriate Order follows.
ORDER
AND NOW, this 8th day of July, 2004, upon consideration of the Petition for Special Order Directing Service by Publication and/or Posting [Doc. #7] and the Supplement thereto [Doc. # 8], and for the reasons set forth in the attached Memorandum Opinion, it is hereby ORDERED that the Petition is DENIED WITHOUT PREJUDICE to the right to re-file within forty-five (45) days of the date of this Order.
It is so ORDERED.
. Pl.'s Pet. ¶¶ 16, 18.
. Pa. R. Civ. P. 404(l)-(3). Rule 404 also provides for methods of service in foreign countries, although those provisions are inapposite here. See id. at 404(4)-(5).
. Pa. R. Civ. P. 430(a).
. clayman v. Jung, 173 F.R.D. 138, 139 (E.D.Pa. 1997); see also Pa. R. Civ. P. 430(a), Note.
. Witherspoon v. city of Philadelphia, 564 Pa. 388, 768 A.2d 1079, 1089 n. 3 (2001) (Newman, J., dissenting).
. Deer Park Lumber, Inc. v. Major, 384 Pa.Super. 625, 559 A.2d 941, 946 (1989).
. See Pa. R. Civ. P. 430(a), Note.
. Even if the Court was persuaded that Plaintiff had made a good faith effort to locate and serve Defendant Guilfoyle, the Petition could not be granted because Plaintiff has failed to set forth any details concerning which publications he believes would comport with the requirements of Rule 430(b)(1). Plaintiff should cure this defect in the event he re-files a similar petition.
. Pa. R. Civ. P. 430(a) (emphasis added).
. See Pa. R. Civ. P. 430(a), Note ("A sheriff's return of 'not found' or the fact that a defendant has moved without leaving a new forwarding address is insufficient evidence of concealment.”) (citing Gonzales v. Polis, 238 Pa.Super. 362, 357 A.2d 580 (1976)).
Reference
- Full Case Name
- Moses GROVE v. Ryan GUILFOYLE and House & Yard Lumber Co., Inc.
- Cited By
- 16 cases
- Status
- Published