Hollinger v. Hollinger ( 1965 )

Opinion by

Mr. Justice Jones,

The principal issue presented upon this appeal is the extent to which the return of service of a sheriff is deemed conclusive. This issue arises from the pleadings — the complaint and preliminary objections — in an intra-family lawsuit stemming from a motor vehicle accident.

The minor plaintiffs, passengers in a motor vehicle operated by their 20 year old aunt, Rita Hollinger, sustained personal injuries when the motor vehicle collided with a telephone pole in Fort Washington, Montgomery County. Seeking damages for the minor plaintiffs’ injuries, the minor plaintiffs’ parents — Rita Hollinger’s brother and sister-in-law — instituted a trespass action against Rita Hollinger in Philadelphia County on the last day prior to the running of the statute of limitations. On behalf of Rita Hollinger, preliminary objections were filed which challenged the validity of the service purported to have been made on Rita Hollinger in Philadelphia County. The court below dismissed the preliminary objections and upheld the service : from its order this appeal has been taken.

The sheriff’s return recited, inter alia, that service had been made by handing a true copy of the “writ to Mrs. Alvin Hollinger [another sister-in-law of Rita Hollinger], an adult member of the family of [Rita Hollinger] ... on 1-2, 1962, at 3:40 o’clock P.M. . . . at 5537 N. Palethorpe St., in the County of Philadelphia, State of Pennsylvania, the dwelling house of said [Rita Hollinger].” (Emphasis supplied). Rita Hollinger’s counsel contends, and the record unequivocally reveals, that the “dwelling house” and residence of Rita Hollinger was not and had never been at 5537 N. Palethorpe St., Philadelphia, and urges, therefore, that the service was invalid. Appellees contend that, no matter how incorrect the sheriff’s return may be in its statement that 5537 N. Palethorpe Street was the “dwelling house” of Rita Hollinger, the sheriff’s return, in the absence of fraud, is conclusive and immune from attack.

Beyond any question, the record established these facts: (1) the accident took place in Montgomery County; (2) the residence of plaintiffs was in Bucks County; (3) on the date of accident, Rita Hollinger’s residence was in Fort Washington, Montgomery County, and, on the date of service, Rita Hollinger resided in a convent in Merion, Montgomery County, where she had resided for approximately one and one-half years; (4) Rita Hollinger never resided at 5537 N. Palethorpe Street, Philadelphia, that address being the residence of Mr. and Mrs. Alvin Hollinger, Jr., brother and sister-in-law, respectively, of Rita Hollinger; (5) service at the Philadelphia residence was made at the suggestion of George T. Hollinger, minor plaintiffs’ male parent, to Alvin Hollinger, Jr., his brother; (6) the statement in the sheriff’s return that 5537 N. Palethorpe Street was the “dwelling house” of Rita Hollinger is untrue; (7) the Philadelphia address was a fictional address created for Rita Hollinger by the minor plaintiffs’ male parent.

Our courts have long adhered to the rule that, in the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence: Vaughn v. Love, 324 Pa. 276, 278, 279, 188 A. 299, and cases therein cited; Kane v. Travis, 172 Pa. Superior Ct. 220, 222, 92 A. 2d 902; Commonwealth v. Degillio, 197 Pa. Superior Ct. 568, 571, 180 A. 2d 267. Despite the fact that the early history of this rule “is clouded by contradictions”, that “all but eight states, of which Pennsylvania is one, have thrown off the old idea that the return of a sheriff must be accepted as verity”, that on occasions the rule has resulted in “exceeding hardship” and that we have “been somewhat inconsistent in our rulings relating to the return and the immutability of a record” (Vaughn, supra, pp. 279, 280), we have continued adherence to this rule because it has tended to the security of a record. Our experience with this rule has indicated that it is generally salutary and worthy of preservation; from this rule we do not depart. The difficulty in the case at bar is that the court below applied the rule to a situation to which it is inapposite.

The rule of conclusiveness of a return of service of process is based upon the presumption that a sheriff, acting in the course of his official duties, acts with propriety and, therefore, when the sheriff in the course of such official duties makes a statement, by way of an official return, such statement is given conclusive effect. However, both logic and common sense restrict the conclusive nature of a sheriff’s return only to facts stated in the return of which the sheriff presumptively has personal knowledge, such as when and where the Avrit was served; when, in his official return, the sheriff states that he served a writ at a certain time and at a certain place, such facts are known to the sheriff personally and should be given conclusive effect. However, the immutability of a return should not extend (a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the sheriff only through statements made by others. When a sheriff’s return states that a certain place is the residence or dwelling house of the defendant, such statement is not of a matter ordinarily within the personal knowledge of the sheriff but only a statement based upon that which he has been told by other persons, i.e., he had been instructed by a third person to make service at a certain place which he is told is the residence or dwelling house of the defendant. No sound reason exists for giving a conclusive effect to a statement in the sheriff’s return as to a fact or conclusion which arises not from the sheriff’s own personal knowledge or observation but from information given him by other persons. In the case at bar, no attack is permissible upon the statements in the sheriff’s return that he served this writ at a certain specified time at 5537 North Palethorpe Street, Philadelphia, but the rule does not preclude an attack upon the statement in the return that 5537 North Palethorpe Street, Philadelphia, was the dwelling house or residence of Rita Hollinger.¹

In Bujniewicz v. Norway Service Cleaners, Inc., 404 Pa. 328, 171 A. 2d 761, we recently set aside a sheriff's return of service where it was admitted, by way of answer to preliminary objections, that the sheriff’s return, which stated that the defendant corporation was served by handing a copy of the complaint to the person in charge for the time being of the defendant corporation’s place of business in Philadelphia, was incorrect in that the place of service was actually the home of the defendant corporation’s president and the person served was the wife of such president. In the case at bar, it is uncontradicted upon this record that the place of service in Philadelphia was not the residence or dwelling house of Rita Hollinger. Bujniewicz’ rationale is in line with our instant ruling. To the extent that Commonwealth v. Degillio, supra, may conflict with our present ruling it is overruled.²

Two contentions are made by appellees which, by reason of their amazing nature, require answer. In the first place, appellees suggest that the real party in interest is not Bita Hollinger but her insurance carrier and, therefore, urge that it is unimportant whether Bita Hollinger did or did not reside at the Philadelphia address. That suggestion is based upon matters outside the record, a resort to which is not countenanced by this Court. But, even if such was a matter of record, the conclusiveness of a sheriff’s return should not be made dependent upon the capacity of the person attacking the return. In the second place, the suggestion is made that it is of no consequence whether this suit is instituted in Montgomery or Philadelphia County. Such suggestion directly contravenes Buies of Civil Procedure promulgated by this Court. An action against an individual may be brought only in the county in which he or she may be served: Pa. B. C. P. 1006.³ Rita Hollinger was not personally served and, in the absence of such personal service, she could be served only, under Buie 1009(b) (2) (i), by handing a true copy of the writ to an adult member of the family, with whom she resided, at her residence. Therefore, unless the address in Philadelphia County was the bona fide residence or dwelling house of Bita Hollinger, under our Buies suit could not be instituted in Philadelphia County. The real reason for the institution of this action in Philadelphia, rather than Montgomery County is certainly not obscure.

Appellees lastly urge — upon the basis of depositions which were not before the court below⁴ — that, since Rita Hollinger at the time of the alleged service was a minor, then resident in a convent from Avhich she could not depart, her mother had the authority to act on her behalf and to acquiesce for and on her behalf in service upon her at the fictional address in Philadelphia. Pa. R. C. P. 2029(a), proAddes for service of original process upon a minor defendant in the same manner prescribed for service of such process upon an adult defendant. In the absence of a guardian, neither the mother nor father of a minor can act for the minor in arranging for service of original process at a fictional address. Such is the rationale in our case law: Mitchell v. Spaulding, 206 Pa. 220, 224, 55 A. 968; Swain v. Fidelity Ins. Trust & Safe Deposit Co., 54 Pa. 455, 459. Such contention of appellees is without merit.

The court below erroneously applied the rule as to the eonclusiveness of a sheriff’s return. The employment of this rule in sustaining a fictional address at which service could be made in Philadelphia would be an unwarranted application of the rule, the result of which would be a disregard both of the letter and the spirit of those Rules of Civil Procedure which provide for the service of original process.

To apply the rule of conclusiveness of a return in the case at bar brings to mind that which was said by Justice Hunt in U. S. v. Reese, 92 U.S. 214, 243: “I cannot but think that in some cases good sense is sacrificed to technical nicety, and a sound principle carried to an extravagant extent.”

Order reversed.

1 Other jurisdictions have reached the same conclusion. In Cannon v. Time, Inc., 115 P. 2d 423, 426 (4th Cir. 1940), Judge Parker said: “Little need be said as to plaintiff’s contention that the officer’s return is conclusive. The statement in the return, that the person served was an agent of the defendants, was nothing more than the officer’s conclusion; and the contention that the court is bound by such conclusion on a motion to quash the return, is so manifestly unsound as not to warrant discussion, [citing cases]. Many troublesome jurisdictional questions could be solved very easily if the return of the process officer were accepted as conclusive. The courts, however, may not thus abdicate the judicial function to the server of process.” In Great Western Mining Co. v. Woodmas of Alston Mining Co., 12 Colo. 46, 20 P. 771, 779, the Court said: “There is both reason and authority for holding that there is a wide distinction to be drawn between the recital in the officer’s return of matters presumptively within his personal knowledge and the recital of matters, . . ., not presumptively within such knowledge.” In State of New Jersey v. Shirk, 75 Ind. App. 275, 127 N.E. 861, 863, it was stated: “The return however, is not conclusive as to collateral facts or matters not necessary to the return, or which are not presumptively within the personal knowledge of the officer, and this includes such facts as the usual place of residence of the person served . . . .” See also: Carr v. Commercial Bank of Racine, 16 Wis. 50; Bond v. Wilson, 8 Kan. 228, 12 Am. Rep. 466; Abelson v. Steffke Freight Co., 1 Ill. App. 2d 461, 118 N.E. 2d 26; Walker v. Lutz, 14 Neb. 274, 15 N.W. 352; Tilden v. Johnson, 60 Mass. 354; Grady v. Gosline, 48 Ohio St. 665, 29 N.E. 768; 124 Am. St. Rep. 756, 759, 766; cases collected in Shirk, supra, p. 863.

2 Our case law, recognizing- that by the application of the rule an injustice may be done, suggests the availability of another remedy to any party aggrieved by the application of the rule. As we said in Morris v. Bender, 317 Pa. 533, 536, 177 A. 776: “If it [the sheriff’s return] is false, the only remedy by one who has been injured thereby is by an action against the sheriff for a false return: [citing a case]:”. In the instant case, no other remedy than an attack upon this return is available to the party aggrieved. It is crystal clear upon this record that a fictional address for the purpose of service was created by an arrangement between the male guardian-j>arent of the minor plaintiffs vis-a-vis the brother who resided at the Philadelphia address so as to permit institution of suit in Philadelphia, rather than Montgomery, County. Through the employment of such fictional address, it is clear that the sheriff acted upon untrue information and, under the circumstances, the rule of conclusiveness of the sheriff’s return should be inapplicable. The sheriff in the instant case acted in a bona fide manner and was “duped”, through the creation of a fictional address by third persons, to make an improper service and a false return; under such circumstances, the pursuit of a remedy against tbe sheriff would be vain.

3 This rale applies to actions of trespass under Pa. R. C. P. 1042.

4 Appellees’ brief, p. 8.