Citation Numbers: 94 Pa. Super. 480
Judges: OPINION BY KELLER, J., December 13, 1928:
Filed Date: 10/5/1928
Status: Precedential
Modified Date: 1/13/2023
Argued October 5, 1928. Appellant brought this action of assumpsit in the Municipal Court. The writ was duly served on the defendant by the sheriff, on September 12, 1927, "by handing a true and attested copy to an adult member of his family at No. 2124 S. 6th St., in the County of Philadelphia, State of Pennsylvania, the dwelling house of the defendant."
A plaintiff's statement was filed, endorsed with the notice to the defendant required by the Practice Act of 1915, P.L. 483, Sec. 10, which was signed by plaintiff's attorney. On the original statement on file in the prothonotary's office appears the following affidavit of service: "Joseph Solari, being duly sworn (or affirmed) according to law, deposes and says that on the 12th day of September, 1927, he duly served a copy of plaintiff's statement of claim, filed in the above case, with a notice endorsed thereon to file an *Page 482 affidavit of defense to said statement within fifteen (15) days from the service thereof, by handing same to an adult member of his family at 2124 S. 6th St., in the County of Philadelphia, State of Pennsylvania.
Joseph Solari.
Sworn and subscribed before me this Sep. 19, 1927,
James Feaney, Notary Public."
No affidavit of defense was filed and on November 14, 1927 judgment was entered for want of an affidavit of defense for $276.25, and execution issued the same day.
On December 12, 1927 on petition of the defendant a rule was entered to show cause why the said judgment should not be stricken off, which the court, after answer and hearing, made absolute.
The grounds on which the application to strike off was based were that the affidavit of service of the statement filed of record was defective and insufficient to support the judgment because it showed on its face that service of the statement had not been made on the defendant as required by law and in accordance with the statutes and rules of court in such case made and provided, in that, (1) the affidavit did not show that the copy served was a `certified' copy, and (2) the affidavit failed to assert that 2124 S. 6th St., Philadelphia, where the copy was left with an adult member of the defendant's family, was the dwelling house of the defendant.
Rule 6 of the Municipal Court provides, inter alia, that "a certified copy of the statement of claim shall be served within thirty (30) days after the return day of the writ on each defendant"; and Rule 93 of the Court of Common Pleas, (applicable to the Municipal Court by section 12 of the Act creating it — July 12, 1913, P.L. 711, 716 — and Rule 1 of said court) provides: "Except where an Act of Assembly or rule *Page 483 of court otherwise directs, all notices, pleadings and papers required to be served on the adverse party shall be served on his attorney of record, if he has one, and, if not, then on the party himself, in the manner provided by law for the service of a summons; if he cannot be thus served, then by registered letter."
The Act of July 9, 1901, P.L. 614, relating to the service of process, provides inter alia, that the writ of summons may be served on the defendant "by handing a true and attested copy thereof to an adult member of his family, at his dwelling house."
The lower court made the rule absolute with reluctance, stating that the record disclosed a prior application to open the judgment which showed no reason for failure to file the affidavit within the time prescribed by law; but that it felt obliged to strike off the judgment as a legal duty for the reasons above stated even though satisfied that "the rule was taken as a technical subterfuge to escape the penalty of a default judgment"; relying on the authority of Lehigh Valley Ins. Co. v. Fuller,
Defendant does not aver that No. 2124 S. 6th St. is not his dwelling house. The sheriff's return to the writ states that it is. He does not aver that the copy served on him was not certified, which we take it, would amount to a `true and attested' copy. He insists on extending to the affidavit of service of pleadings and subsequent papers in a case the legal rule in force as to the return of service of writs by the sheriff. This, as we have seen, is not the law. The reasons which led to the rule that the return of the sheriff as to the service of writs issued by the court must show on its face a legal service, do not have the same force as to the service of pleadings, and subsequent documents and notices, other than court writs. As this may be done by any one, without the security of an official bond, the party alleged to be served is not concluded by the affidavit and may prove its falsity; and if informal, it may be corrected to accord with the facts. The technical attributes of a sheriff's `return' do not apply to such an informal affidavit of service.
In this view of the case, as there is no denial by the defendant of the service on him in the manner provided by rule of court of a certified copy of the plaintiff's statement, the judgment should not have been stricken off.
Order reversed and judgment reinstated. *Page 486