How to Serve Defendant Personally ...not a Relative, Roomate, Etc.

[tony17112acst]

What is the name of your state (only U.S. law)? PA

My question involves small claims court in the state of: PA

I have a judgment against a former tenant from a few years ago, however she now claims she was never served and consequently never knew of the hearing, or the judgment and will now try to vacate(?) it.

I am now suing her for something different; the non-payment of rent. The constable has served her and there is a court date now set in two weeks. However, she will likely say that she was never served just to make things harder form me.

I asked the District Justices office while there, and the ladies there treated me like a fool. They said that the constable will drop off the Civil Action Hearing Notice even if the defendant isn't there to accept it ...and I would win a judgment even if she never knew. I told them I do not want a judgment where she never knew of the hearing, I want one where she indisputably knew of the court hearing.

Does anyone know of anything I can do that would guarantee (in the eyes of any court) that she knows of the civil action hearing?

I have emailed her yesterday and already she has replied that she has no knowledge of being served by the constable or of any court hearing. Her reply was to my original email which had the Hearing Notice attached, but she'd just claim I just faked the email. I'm guessing the constable gave the papers to a relative, as this household has a lot of members/generations in it.

Thank you in advance! -Tony

 

[Mass_Shyster]

She will have to show up in court to vacate the judgment. Have a constable waiting to serve her in hand.

 

[Antigone*]

What is the name of your state (only U.S. law)? PA

My question involves small claims court in the state of: PA

I have a judgment against a former tenant from a few years ago, however she now claims she was never served and consequently never knew of the hearing, or the judgment and will now try to vacate(?) it.

I am now suing her for something different; the non-payment of rent. The constable has served her and there is a court date now set in two weeks. However, she will likely say that she was never served just to make things harder form me.

I asked the District Justices office while there, and the ladies there treated me like a fool. They said that the constable will drop off the Civil Action Hearing Notice even if the defendant isn't there to accept it ...and I would win a judgment even if she never knew. I told them I do not want a judgment where she never knew of the hearing, I want one where she indisputably knew of the court hearing.

Does anyone know of anything I can do that would guarantee (in the eyes of any court) that she knows of the civil action hearing?

I have emailed her yesterday and already she has replied that she has no knowledge of being served by the constable or of any court hearing. Her reply was to my original email which had the Hearing Notice attached, but she'd just claim I just faked the email. I'm guessing the constable gave the papers to a relative, as this household has a lot of members/generations in it.

Thank you in advance! -Tony

It is impossible to guarantee that she will "know of the civil action hearing." You cannot serve her personally either.

You have to trust the system.

 

[tony17112acst]

She will have to show up in court to vacate the judgment. Have a constable waiting to serve her in hand.

Thanks for the quick reply!

Forgive me if I am missing the obvious, but the court date for her as the defendant is in 2 weeks. What if her attempt to vacate the 1st judgment only occurs in 2 years? ...or never?

I am wondering if there is a way to legally have her served in person by the constable. Somehow the post office or other carriers require a signature, can't the constable do the same? ...or some other idea?

 

[Mass_Shyster]

I am wondering if there is a way to legally have her served in person by the constable. Somehow the post office or other carriers require a signature, can't the constable do the same? ...or some other idea?

Hire a private process server.

 

[tony17112acst]

It is impossible to guarantee that she will "know of the civil action hearing." You cannot serve her personally either.

You have to trust the system.

Thanks also for your reply.

Trusting the system will result in me having a judgment where the defendant can claim she never even knew of a hearing, much less than any judgment. This will produce 2 - 20 times the legal costs for me which I am trying to avoid.

I guess I am asking if there's a way to prove that she got the papers personally.

 

[tony17112acst]

Hire a private process server.

OK, I didn't know there was such a thing. This might be my answer; I'll have to look into it. Unfortunately I don't know anything about them, but I have about a week to learn what they are. Thanks.

 

[Mass_Shyster]

If you start the collection process on the existing judgment (garnish her wages, seize her bank accounts, etc) she will likely speed up her trip to court to try to vacate the judgment.

 

[LOSP]

Make sure the process server you hire has cell phone camera in hand! Gotcha!

 

[tony17112acst]

Thanks for all of the input, folks.

 

[LOSP]

If you haven't already, Google "process servers Pennsylvania". You will find many.

 

[dcatz]

Questions about PA are always a bit of a nuisance. Cases in Philadelphia are heard in Municipal Court and have a higher dollar jurisdiction than those elsewhere in the state heard in District and Justice Courts. There are a few other differences, but your concern is with service of process, a uniform factor unaffected by where you live. I don’t really understand the reason for the (with apologies) obsession about this issue. Your rules allow service by registered or certified mail, the Sheriff or a “disinterested adult” (including a process server). You have the best “tools” that you can get with the Sheriff or process server (and I’ve used servers who will take location pictures) but, it’s as Antigone* says, you can’t guarantee anything.

If she’s going to evade, she’ll do it and you have alternatives. If she was served properly but non-personally and will lie, you have alternatives. Have you done anything to create public records concerning the old judgment? If not, why not in two years? (Those are rhetorical questions and the consequences of inactivity are on you.) But Stevef makes two excellent points (posts #2 and 8, except that you can’t garnish wages in PA), and if she does appear on a motion to vacate for defective service two years ago, she confers personal jurisdiction on the Court. The worst that should happen is the Court sets a new trial date, orders the whole thing done over and you’ve lost two years of post-judgment interest.

Understand that a proper return of service (meaning pay to use the Sheriff or a process server) creates a rebuttable evidentiary presumption in your favor that good service was perfected. Translation: you have service and she has to establish to the satisfaction of the Court that it wasn’t perfected and you weren’t entitled to a default for her nonappearance. Dealing with many similar issues in another case, an appellate court in your state said, by way of dicta, “The general rule is that a “‘process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.’”

My advice would be content with your use of the Sheriff (because they get a lot of practice and it’s difficult for a court to rule that they fabricated). If the Court seems inclined to vacate and you want to avoid a new trial, ask for an evidentiary hearing and bring the Sheriff’s deputy in to testify and affirm the entries on the sworn return. (He/she won’t have a direct recollection of something two years ago.)

If you have such angst obsessing about a hypothetical you’re “guessing is likely to happen”, dismiss the current case, let the old judgment go without opposition and take the total loss or use the tools that you have.

 

[You Are Guilty]

The PA standard is really "clear and convincing"? (Admittedly I have not looked it up, but at first blush, it seems a bit extreme).

 

[tony17112acst]

dcatz: Thanks so much for your input.

It's not that I am obsessed with her "likely lying" ...it's that she has ALREADY lied about a previous judgment! I have a landlord/tenant judgement from 4 years ago and when I started collection procedures, she informed me that she never knew about the hearing nor any judgment which is a lie. I have much evidence that we discussed the hearing/judgment/money owed. THEN she decided to lie about even living there! She actually now says she never lived there. Now she says my lease with her signature is a forgery.

So can you see how I'm "guessing" that she will be lying about ever having received this new action she is being served with (the rest of the rent I never sued for).

Also, I waited several years to start collection procedure because she had a baby and got married and I didn't want to come down hard on her.

The main reason I'm asking about all this is that I'm predicting that she will lie about ever being served by the sheriff. So I'm simply asking if there is a way to serve her in a way that a lie would be fruitless on her part. Why is this important? Because it will cast me more in legal fees and court costs. Wouldn't YOU want to lower your costs preemptively?

For example, already have a default judgment against her from 4 years ago. But now she claims she never was served and never even knew there was a hearing. So NOW, she'll start a process to vacate the judgment. It will fail, but now I must pay more and more legal fees and court costs!

Why doesn't anyone understand this (read previous posts)?

ALL I WANT IS FOR THE CONSTABLE TO SERVE HER PERSONALLY SO SHE WOULDN'T HAVE THE OPPORTUNITY TO LIE ABOUT IT! ...which is exactly has already happened on a previous judgment.