Mannetti v. Mannetti

Fulton County Court of Common Pleas

Mannetti v. Mannetti

47 Pa. D. & C.2d 544, 1969 Pa. Dist. & Cnty. Dec. LEXIS 316

CourtPennsylvania Court of Common Pleas, Fulton County

DecidedSeptember 5, 1969

Docketno. 25

StatusPublished

This text of 47 Pa. D. & C.2d 544 (Mannetti v. Mannetti) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Fulton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mannetti v. Mannetti, 47 Pa. D. & C.2d 544, 1969 Pa. Dist. & Cnty. Dec. LEXIS 316 (Pa. Super. Ct. 1969).

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Opinion

MacPHAIL, P. J.,

This divorce action was commenced by the filing of a complaint on February 18, 1969. The sheriffs return indicates that it was served personally upon defendant on March 24,1969.

Pennsylvania Rule of Civil Procedure 1009 provides that the complaint shall be served within 30 days after it is filed, where the action is commenced by the filing of a complaint. Rule 1010 provides for the reissuance of the complaint after the 30 days has expired. There is nothing in the record of this case to indicate that the complaint was reissued or reinstated.

“Unless action is taken by application to the court under Rule 1003, or unless the parties make the agreement contemplated by that Rule, the writ or complaint will be ‘dead’ at the expiration of 30 days. It cannot be served thereafter unless some further action is taken under Rule 1010”: Comment, 1 Goodrich-Amram §1009. (Italics supplied.)

Service of the complaint more than 30 days after filing, and without reissuance or reinstatement is invalid and creates no jurisdiction over defendant. The complaint is “dead” as a process after 30 days: Mrozeski v. Mrozeski, 28 Beaver 54 (1967); Gallagher v. Bell, 10 Adams 119 (1968).

Since it is only the complaint and not the suit itself that is “dead” under the circumstances presented here [545]*545(see Lauterbach v. Lauterbach, 202 Pa. Superior Ct. 260 (1963)), we will afford plaintiff an opportunity to have the complaint reissued or reinstated.

ORDER OF COURT

And now, September 5, 1969, it is ordered that all pleadings and the notes of testimony in this case be filed with the prothonotary. Plaintiff is granted leave to reissue or reinstate his complaint within 20 days from the date of this order. If the complaint is reissued or reinstated, the action shall proceed as though the original service had not been made upon defendant. If no action is taken by plaintiff within the allotted time, a decree will be entered dismissing the complaint at plaintiffs cost.

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MacPHAIL, P. J.,

This divorce action was commenced by the filing of a complaint on February 18, 1969. The sheriffs return indicates that it was served personally upon defendant on March 24,1969.

Pennsylvania Rule of Civil Procedure 1009 provides that the complaint shall be served within 30 days after it is filed, where the action is commenced by the filing of a complaint. Rule 1010 provides for the reissuance of the complaint after the 30 days has expired. There is nothing in the record of this case to indicate that the complaint was reissued or reinstated.

“Unless action is taken by application to the court under Rule 1003, or unless the parties make the agreement contemplated by that Rule, the writ or complaint will be ‘dead’ at the expiration of 30 days. It cannot be served thereafter unless some further action is taken under Rule 1010”: Comment, 1 Goodrich-Amram §1009. (Italics supplied.)

Service of the complaint more than 30 days after filing, and without reissuance or reinstatement is invalid and creates no jurisdiction over defendant. The complaint is “dead” as a process after 30 days: Mrozeski v. Mrozeski, 28 Beaver 54 (1967); Gallagher v. Bell, 10 Adams 119 (1968).

Since it is only the complaint and not the suit itself that is “dead” under the circumstances presented here [545]*545(see Lauterbach v. Lauterbach, 202 Pa. Superior Ct. 260 (1963)), we will afford plaintiff an opportunity to have the complaint reissued or reinstated.

ORDER OF COURT

And now, September 5, 1969, it is ordered that all pleadings and the notes of testimony in this case be filed with the prothonotary. Plaintiff is granted leave to reissue or reinstate his complaint within 20 days from the date of this order. If the complaint is reissued or reinstated, the action shall proceed as though the original service had not been made upon defendant. If no action is taken by plaintiff within the allotted time, a decree will be entered dismissing the complaint at plaintiffs cost.

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Bluebook (online)

47 Pa. D. & C.2d 544, 1969 Pa. Dist. & Cnty. Dec. LEXIS 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mannetti-v-mannetti-pactcomplfulton-1969.

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