Opinion
COC.A. No. 02C-11-006.
August 29, 2003.
Edward F. Kafader, Esq., Ferry, Joseph Pearce, P.A., 824 Market Street, Suite 904, P.O. Box 1351, Wilmington DE 19899.
Rodney Don Sweet, Esq., 303 Main Street, P.O. Box 1555, Milisboro, DE 19966.
Dear Counsel:
Pending before this Court are Defendants' motion to quash service and dismiss the action. Defendant's motion is denied for the reasons set forth herein.
Reviewing the record, the present action was commenced on November 13, 2002. Plaintiff served Defendants pursuant to 10 Del. C. § 3112 by serving the Secretary of State on November 25, 2002. The sheriffs return is dated December 4, 2002. Plaintiff sent the required notice to Defendants by registered mail on December 10, 2002. The addresses were taken from the police report issued as a result of the accident. The post office returned and marked Patrick Stella's letter unable to forward with a new address. Asphalt Maintenance's letter was returned unclaimed after the post office attempted delivery to a forwarding address not known by Plaintiff.
With this background, a second letter was sent to Mr. Stella by registered mail on December 16, 2002. A diligent search was made and both Defendants' actual addresses could not be located. The numbers listed in the phone book and police report for Asphalt Maintenance are incorrect. The number listed in the police report for Patrick Stella is incorrect, and there is no listing in the phone book. Further efforts were made to locate the Defendants' addresses including contacting the insurance adjuster without success.
On May 9, 2003, Plaintiff filed an alias praecipe directing service of Defendants by serving the Secretary of State. The sheriff sewed the Secretary of State on May 29, 2003. Plaintiff sent the required notice to Defendants by registered mail on May 30, 2003. Plaintiff has submitted copies of all the registered mail receipts. Plaintiff submitted an affidavit of mailing on June 6, 2003. An amended complaint was also filed on June 6, 2003.
Under 10 Del. C. § 3112(a), nonresident owners or operators of motor vehicles make the Secretary of State their agent for service of process for actions arising out of Delaware accidents. 10 Del. C. § 3112(a). Plaintiff is required to sent notice via registered mail to the Defendants within seven days of service upon the Secretary of State. 10 Del. C. § 3112(b). Pursuant to 10 Del. C. § 3112(e), if the mail is returned undelivered counsel may submit proof of nonreceipt and an affidavit of mailing within seven days of the return. 10 Del. C. § 3112(e). Proof of nonreceipt includes the receipt given by the post office at the time of mailing and the original envelope of the undelivered registered article. Id. of course, no citation is needed to show that multiple mailings are constitutionally required to provide notice of pending litigation.
Here, Plaintiff sent notice by registered mail as required by section 3112(b). Plaintiff also sent the required second notice within seven days of the return of the first mailing. However Plaintiff did not file an affidavit and proof of nonreceipt after the first set of mailings. Accordingly, these first attempts at service were invalid for failure to comply with 10 Del. C. § 3112(e). See also Franklin v. Milisboro Nursing Rehabilitation Ctr, Inc., Del. Super., C.A. No. 95C-11-008, Graves, J. (June 10, 1997) (Mem. Op.). Later, Plaintiff filed an alias praecipe and sent the required notices which were received by Defendants. At that time, Plaintiff filed an affidavit of delivery as required by 10 Del. C. § 3112(b). This second attempt at service was valid.
Nevertheless, under Superior Court Civil Rule 4(j) an action must be dismissed if service is not made within 120 days of the filing of the complaint, unless good cause is shown why timely service was not made within that period. Del. Super. Ct Civ. R. 4(j). Good cause requires a showing of good faith and excusable neglect such as when "the plaintiff has made all possible efforts to comply with Rule 4, but has not been able to obtain service within 120 days." Franklin v. Millsboro Nursing Rehabilitation Ctr, Inc., Del. Super., C.A. No. 95C-11-008, Graves, J. (June 10, 1997) (Mem. Op.).
Plaintiff has demonstrated good cause for the failure to effect service within 120 days of filing the complaint. Plaintiff made diligent efforts to locate the Defendants' addresses and sent out mailings at addresses that were reasonably calculated to reach the Defendants. Sommers v. Gaston, 295 A.2d 578, 580 (Del.Super. 1972). Defendants changed their addresses a number of times during this time period. See DeFrancis v. Bush, 859 F. Supp. 1022 (E.D. Tex. 1994) (good cause existed for failure to serve defendant within 120 days after the complaint was filed where plaintiff has justifiable difficulty in locating roving defendant). Arguably, Defendants also failed in their obligation to notify the authorities of their correct address. Id. at 581. Moreover, public policy favors permitting the litigant to have their day in court. Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998).
Considering the foregoing, the motion to quash service and dismiss the complaint is denied.
Even if the motion were granted, the Plaintiff should be able to successfully refile the complaint, notwithstanding the two year statute of limitations for suits of this nature, under a savings statute that protects against abatement of suits. See 10 Del. C. § 8818, the cases cited in the Franklin case on this point and the multiple filings presented in O'Donnell Lilly, Del. Super., C.A. No. 01C- 10-291, Cooch, J. (Oct. 25, 2002) (Mem. Op.). To paraphrase then Judge Christie the equities weigh heavily to prevent a forfeiture when a Defendant actually has notice of a suit. See Gaspero v. Douglas, Del. Super., C.A. No. 80C-DE-45, Christie, J. (Nov. 6, 1981) (ORDER). The insights of a trial judge who later served Delaware well as Chief Justice are as cogent today as when first expressed.