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COWPERTHWAIT v. LAMB (03/23/53)

March 23, 1953

COWPERTHWAIT, ADMR.,
v.
LAMB, APPELLANT



Appeal, No. 28, Jan. T., 1953, from order of Court of Common Pleas of Lackawanna County, March T., 1952, No. 33, in case of David S. Cowperthwait, Admr., Estate of Douglas Cowperthwait, deceased, v. Frederick T. Lamb. Order reversed.

COUNSEL

David J. Conroy, with him James W. Scanlon and William J. Garvey, for appellant.

J. Julius Levy, with him Louis A. Fine, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 373 Pa. Page 205]

OPINION BY MR. JUSTICE CHIDSEY

David S. Cowperthwait, administrator of the estate of his deceased son, Douglas Cowperthwait, brought an action of trespass in Lackawanna County against Frederick T. Lamb, arising out of a fatal automobile accident occurring in Susquehanna County. Both plaintiff and defendant were residents of the latter county. The complaint in the action was served upon the defendant Lamb in Lackawanna County as he was leaving a hearing in the Lackawanna County Court House at Scranton, held before a representative of the Secretary of Revenue of the Commonwealth in accordance with the provisions of Section 192(b) 4 of The Vehicle Code, Act of May 1, 1929, P.L. 905, as amended, 75 PS § 192. The defendant had been notified of the hearing which involved the suspension of his motor vehicle operator's license, and had entered Lackawanna County for the purpose of attending such hearing. The defendant filed preliminary objections in the nature

[ 373 Pa. Page 206]

    of a motion to strike off the service of the complaint which the court overruled, and this appeal followed.

The question presented is whether the defendant was immune from civil process issued in the trespass action while attending and departing from the hearing before the representative of the Department of Revenue.

It is almost universally recognized that parties and witnesses in attendance on a court outside the territorial jurisdiction of their residence are immune from service of civil process while attending court, and for a reasonable time before and after, in going to court and returning to their homes: 72 C.J.S., Process, § 80, p. 1112 et seq.; 42 Am. Jur., Process, § 139, p. 119, et seq. In most jurisdictions the immunity from process of nonresidents is applied to witnesses or parties, who although residents of the state, are nonresidents of the county in which they are attending court: 42 Am. Jur., Process, § 146, p. 127; 72 C.J.S., Process, § 80(b), p. 1116. And this rule of immunity obtains in Pennsylvania. In the recent case of Crusco v. Strunk Steel Co. et al., 365 Pa. 326, 74 A.2d 142, where a resident of Montgomery County claimed immunity from service in Philadelphia County while attending a hearing there, speaking through Mr. Chief Justice DREW, we said at p. 328: "The privilege of exemption from service of civil process enjoyed by a non-resident suitor or witness in a civil action has long been recognized by our courts to be an exception to the general rule that a creditor may subject his debtor to service in whatever jurisdiction he may find him: Hayes v. Shields, 2 Yeates 222; Miles v. M'Cullough, 1 Binn. 77.".

The court below, after citing many cases where it was held that the immunity extends not only to those in attendance upon a ...


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