Appeal, No. 88, March T., 1951, from order of Court of Common Pleas of Erie County, Feb. T., 1950, No. 543, in case of Lloyd R. Shellito v. Robert Grimshaw and Rosemary Metcalf, Exrx., Estate of Leo D. Metcalf, deceased. Order affirmed.
Franklin B. Hosbach, with him John M. Wolford, Howard M. Nazor, and Hosbach and Good, for appellant.
Frank B. Quinn, with him, Marsh, Spaeder, Baur & Spaeder and Quinn, Leemhuis, Plate & Dwyer, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This jurisdictional controversy arose out of an automobile collision in Erie County on November 28, 1949. One car was driven by Leo D. Metcalf, resident of Ohio, who died as a result of the accident. His passenger, Lloyd R. Shellito, also of Ohio, was injured. The driver of the other vehicle was Robert Grimshaw of Erie County.
Mrs. Metcalf, appellant, in her own name and as ancillary executrix of her husband's estate, on February 11, 1950 issued a summons in trespass against Grimshaw, appellee, in Erie County. The same day Shellito instituted a trespass action against Grimshaw in Erie County. Grimshaw, on April 10, 1950, issued a writ joining appellant as additional defendant in the suit by Shellito.
Appellee had attempted service on appellant by several means, namely, (a) on April 10, 1950, by registered mail on the Secretary of the Commonwealth and copies to appellant's last known address; (b) April 13, 1950, by service on appellant's attorney in Erie County as her agent; and (c) personal service on appellant in Erie County on May 4, 1980. Appellant, on the same day personal service was attempted, moved the court to set aside her joinder as additional defendant, which motion was dismissed. The case was continued until January 8, 1951, when appellant again moved to set aside the joinder for lack of proper service. This motion was dismissed by the court below and from the refusal to strike off service this appeal is taken.
Appellant would have this Court say that all attempts at service, viz., on the Secretary of the Commonwealth, on her agent, and on her personally, were ineffective. If any one of these is determined to have been a proper service on appellant, the order of the lower court dismissing appellant's motion to set aside joinder must be affirmed.
Appellant's ancillary letters were granted February 10, 1950, permitting her to use the courts of this State and certainly it cannot be denied that she then was personally within the jurisdiction of the courts of Erie County. On February 11, 1950, appellant made use of the Erie County Courts to issue summons in trespass against appellee in her own name and as ancillary executrix. Personal service was had on appellant in Erie County on May 4, 1950, in connection with the same cause of action. Appellant, however, pleads immunity from this service on the ground that she ...