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MURPHY v. INDOVINA (ET AL. (01/04/56)

January 4, 1956

MURPHY
v.
INDOVINA (ET AL., APPELLANT).



Appeal, No. 167, March T., 1955, from order of Court of Common Pleas of Allegheny County, April T., 1954, No. 609, in case of Thomas A. Murphy et ux. v. Joseph Indovina et al. Order reversed.

COUNSEL

John B. Nicklas, Jr., with him Allen D. McCrady and McCrady & Nicklas, for appellant.

Tom P. Monteverde, with him James J. Burns, Jr., Alan D. Riester and Brandt, Riester, Brandt & Malone, for appellees.

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

Author: Jones

[ 384 Pa. Page 27]

OPINION BY MR. JUSTICE JONES

This appeal questions the lower court's jurisdiction of the additional defendant, John Hack, who is a resident of Florida and who was summoned by means of substituted service in asserted reliance upon the so-called Nonresident Property Owners Act of July 2, 1937, P.L. 2747, Sections 1 and 2, 12 PS ยงยง 331, 332. Hack appeared specially and filed preliminary objections, raising the jurisdictional question. The court

[ 384 Pa. Page 28]

    below overruled the objections in an order from which Hack took this appeal. He contends that the substituted service provided for by the statute was not applicable to him in the circumstances obtaining and that, even if it were appropriate, it was ineffectually made.

The plaintiff's suit was for the recovery of damages to their property due allegedly to the negligence of the defendant property owners and their contractor in the execution of certain work he was performing for the defendants. Hack formerly resided in Pennsylvania during which time he owned lots Nos. 46 to 64, inclusive, in the Pitt Manor Plan of lots in the City of Pittsburgh. Since February of 1952 the plaintiffs, Thomas A. Murphy and his wife, have been the owners of lot No. 51 improved with a dwelling. The defendants, Burney and wife, Mantle and wife, and Kunzman and wife, are the respective owners of improved lots Nos. 40, 41 and 39 in the Pitt Manor Plan. The remaining defendant is Joseph Indovina, the contractor. The above-mentioned properties of both plaintiffs and defendants are on a slope, the plaintiffs' lot being at the higher elevation with the defendants' properties adjacent at the rear of the plaintiffs' lot.

In their complaint the plaintiffs averred that during June, 1952, the property-owning defendants engaged Indovina, the contractor, to excavate, cut and remove a part of the hillside at the rear of their properties; that the contractor forthwith commenced the work but, without notice to the plaintiffs, excavated on their property instead of the defendants; and that the work was performed in such a careless and negligent manner as to cause the subsidence of the plaintiffs' land.

The defendants, Burney and wife, filed a responsive answer and also a complaint impleading Hack as an additional defendant. Their complaint alleged that in the Spring ...


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