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OLSON v. KUCENIC. (06/28/57)

June 28, 1957

OLSON, APPELLANT,
v.
KUCENIC.



Appeal, No. 223, Jan. T., 1955, from order of Court of Common Pleas of McKean County, Dec. T., 1952, No. 112, in case of Jeanette M. Olson, administratrix, c.t.a. of estate of Oliver H. Olson, deceased, v. George Kucenic. Order affirmed.

COUNSEL

Gallup, Potter & Gallup, with them E. G. Potter, W. D. Gallup and Robert J. Healy, for appellant.

Robert B. Apple, for appellee.

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

Author: Jones

[ 389 Pa. Page 507]

OPINION BY MR. CHIEF JUSTICE JONES

The plaintiff, as administratrix of her deceased husband's estate, sued in the Court of Common Pleas of McKean County to recover damages for his death. The

[ 389 Pa. Page 508]

    defendant is a resident of Westmoreland County where he was served with the complaint by the sheriff of that county who had been deputized for the purpose by the sheriff of McKean County. The plaintiff averred in her complaint that her husband's death resulted from the negligent discharge of a rifle by the defendant while he and the decedent were hunting on wild woodland in McKean County. The defendant disputed the validity of the substituted service and, by way of preliminary objections, questioned the jurisdiction of the McKean County court of his person. The preliminary objections were sustained and the complaint dismissed. The plaintiff has appealed.

The question of law which the appellant poses virtually answers itself. There is neither statute nor rule of civil procedure in this State authorizing deputized service of process in circumstances such as this case presents. The appellant contends, however, that the facts bring the cause of action within the provisions of the Act of July 1, 1937, P.L. 2665, 12 PS § 106, which, as to venue in certain causes, provides that "In cases where claims are made for damages arising from any accident or injury occurring upon real estate, the footways, sidewalks, and curbs adjacent thereto, it shall be lawful to commence an action for the recovery of damages in any court of record in the county wherein the real estate, footways, sidewalks, and curbs, are located, and service of process may be made by the sheriff of the county in which the action is brought, by deputizing the sheriff of the county wherein the defendant resides or where service may be had upon such defendant under the existing laws of this Commonwealth, in like manner as process may be now served in the proper county."

The appellant argues that, because the particular personal trespass involved in this suit was inflicted on

[ 389 Pa. Page 509]

    the decedent "upon real estate" located in McKean County, extra-county service of the process of the court of common pleas of that county was permissible. The contention is patently fallacious. The construction of the Act, which the appellant thus urges, would make idle surplusage of that portion of the embracive statutory phrase which follows the words "real estate" viz, "the footways, sidewalks, and curbs adjacent thereto" in plain disregard of the rule of statutory construction that, "Every law ...


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