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IDZIK v. FIRST GERMAN SPORT CLUB PHOENIX. (03/17/58)

March 17, 1958

IDZIK, APPELLANT,
v.
FIRST GERMAN SPORT CLUB PHOENIX.



Appeal, No. 323, Jan. T., 1957, from order of Court of Common Pleas No. 6 of Philadelphia County, June T., 1955, No. 5627, in case of Alexander J. Idzik v. First German Sport Club Phoenix et al. Order affirmed; reargument refused April 18, 1958.

COUNSEL

Harold Berger, with him Walter Stein, and Berger and Gelman, for appellant.

W. Glenn George, with him Donald E. Hogeland, David F. Maxwell, and Edmunds, Obermayer & Rebmann, for appellee.

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

Author: Chidsey

[ 392 Pa. Page 105]

OPINION BY MR. JUSTICE CHIDSEY

On July 22, 1955, Alexander J. Idzik filed a complaint in trespass against First German Sport Club

[ 392 Pa. Page 106]

Phoenix and Joseph Heim and Lillian Heim to recover damages for injuries allegedly sustained on certain premises in Philadelphia owned by the defendants Heim and occupied on the second floor by the Sport Club. This appeal directly affects only the defendants Heim who were non-residents of the Commonwealth.

It was agreed by stipulation executed by counsel for all parties that Joseph and Lillian Heim "... were served with notice of institution of instant action and copy of Complaint by Registered Mail sent by Sheriff of Philadelphia County to Secretary of the Commonwealth, Harrisburg, Pa., and to Joseph Heim and Lillian Heim at 1250 13th Ave., St. Petersburg, Florida. Return Receipt signed by said Joseph Heim, and Lillian Heim are attached to record in this case." This service was in accord with Pennsylvania Rule of Civil Procedure 2079(a) which requires personal service or service by registered mail on the Secretary of the Commonwealth with notice to defendants by registered mail. On September 22, 1955 plaintiff caused judgment to be entered in his favor against the individual defendants Heim for want of an appearance. Thereafter the Heims appeared and moved by petition to strike off the judgment against them on the ground that plaintiff had failed to comply with Procedural Rule 2082 requiring notice of intent to take judgment against a non-resident defendant.

Rule 2082 provides as follows: "No judgment shall be entered against a defendant who has not been personally served or who has not appeared as a party in the action until the plaintiff has given the defendant such notice as the court by general rule or special order shall direct." (Emphasis supplied).

The defendants Heim contended that since they were not personally served under Rule 2079(a), it was necessary that plaintiff ...


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