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ALOPARI v. O'LEARY

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


July 26, 1957

Carmine ALOPARI
v.
Joan O'LEARY and Richard Ueberrth

The opinion of the court was delivered by: DUSEN

This matter comes before the court on motions of defendant Joan O'Leary (1) to quash the return of service of summons on her; (2) to set aside the default entered against her on February 28, 1957; and (3) to dismiss the action under Fed.Rules Civ.Proc. rule 12(b), 28 U.S.C., for want of venue in this court. *fn1"

Plaintiff, a resident of New York, brings this action against defendant John O'Leary, a resident of California, and defendant Richard Ueberrth, a resident of the Eastern District of Pennsylvania, to recover damages for personal injuries arising out of an automobile accident in the Middle District of Pennsylvania (Monroe County). On January 20, 1956, plaintiff was a passenger in an automobile driven by defendant O'Leary when such automobile collided with an automobile driven by defendant Ueberrth.

 Suit was instituted by plaintiff on September 17, 1956, in this court and personal service was made on defendant Ueberrth by leaving a copy of the summons at his residence with an adult member of his family on October 19, 1956. In an attempt to comply with the Pennsylvania Nonresident Motorist Act (75 P.S. §§ 1201 and 1202), the Marshal sent, by registered mail, on October 12, 1956, identical copies of the summons furnished him by plaintiff's attorney to the Secretary of the Commonwealth of Pennsylvania and to defendant O'Leary. The copy of the writ of summons sent to defendant O'Leary did not have any endorsement upon it (see 75 P.S. § 1202) but she did receive a copy of the summons on or before October 18, 1956. *fn2" The defendant O'Leary also received a copy of the complaint, without any endorsement thereon, in the envelope containing the copy of the writ of summons.

 Both defendants failed to plead or otherwise defend the suit and a default notation was entered against both of them on February 28, 1957, pursuant to F.R.Civ.P. rule 55.

 Thereafter, on May 17, 1957, defendant O'Leary's attorney entered his appearance and moved to dismiss the action or, in lieu thereof, to quash service of summons on defendant O'Leary. Argument was held on these motions on June 24, 1957, by which time defendant O'Leary's attorney noted the default which had previously been taken and moved to set aside the default entered against her, alleging 'the inadvertence and excusable neglect of counsel,' that defendant has valid defenses to this action, and that plaintiff will not be prejudiced by permitting said defenses to be raised. Plaintiff objects to any setting aside of the default, as well as the motion to dismiss and to quash the service of summons.

 I. Motion to Quash the Return of Service of Summons

 The Pennsylvania Nonresident Motorist Act provides that there shall be sent to the non-resident defendant a copy of the process' with an endorsement thereon of the service upon said Secretary of the Commonwealth.' The Pennsylvania courts have repeatedly held that statutes providing for substituted service (in place of personal service) are to be construed strictly. See Hughes v. Hughes, 1932, 306 Pa. 75, 78, 158 A. 874; Williams v. Meredith, 1937, 326 Pa. 570, 572, 192 A. 924, 115 A.L.R. 890; McCall v. Gates, 1946, 354 Pa. 158, 161, 47 A.2d 211. *fn3" The above-mentioned Pennsylvania Supreme Court decisions make clear that, since the process furnished the Marshal by plaintiff's counsel was not in accordance with the substituted service prescribed by the Pennsylvania General Assembly, the service of process on defendant O'Leary was ineffective and must be set aside. *fn4"

 II. Motion to Set Aside Default

 Even though the conclusion reached under I above should be incorrect, defendant O'Leary is entitled to have the default of 2/28/57 entered against her set aside. A motion to set aside a default is addressed to the discretion of the court. Any doubt should be resolved in favor of setting aside defaults so that cases may be decided on their merits. *fn5" In view of the lack of any substantial prejudice to plaintiff, the claim of a meritorious defense, and the absence of any gross neglect on the part of defendant, the default will be set aside.

 III. Motion to Dismiss for Want of Venue

 In view of the ineffective service of process, the motion to dismiss for this ground need not be considered at this time. It is sufficient to note that, even if effective service is made on the defendant O'Leary, in accordance with the terms of 75 P.S. §§ 1201 and 1202, it would appear that she could have the action dismissed for improper venue if this motion is promptly renewed after effective service upon her. See Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 74 S. Ct. 83, 98 L. Ed. 39; McCoy v. Siler, 3 Cir., 1953, 205 F.2d 498. *fn6"

 Order

 And now, July 26, 1957, it is ordered that (1) defendant O'Leary's motion to quash the return of service of summons on her is granted, and the return of service of the summons on Joan O'Leary, defendant, is quashed, set aside, and vacated; and (2) the motion to set aside the default entered against Joan O'Leary, defendant, on February 28, 1957, is granted, and the entry of default against her is set aside and vacated.


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