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FISHER ET UX. v. KEMBLE PARK (06/11/58)

June 11, 1958

FISHER ET UX.
v.
KEMBLE PARK, INC., APPELLANT.



Appeal, No. 111, Oct. T., 1958, from order of Municipal Court of Philadelphia County, July T., 1957, No. 735, in case of Martin Fisher et al. v. Kemble Park, Inc. Order reversed.

COUNSEL

Edward Unterberger, for appellant.

Alvin Freiberg, with him David A. Kraftsow, for appellees.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Gunther

[ 186 Pa. Super. Page 408]

OPINION BY GUNTHER, J.

The Municipal Court of Philadelphia refused to open or strike off a default judgment for want of an answer or appearance. The judgment was entered 21 days after service of the complaint was made upon a janitor of an apartment building owned by defendant corporation, at which it had no place of business. The question before us is whether such service is valid.

[ 186 Pa. Super. Page 409]

Defendant petitioned for a rule to open and later filed an amended petition for a rule to open or strike the judgment from the record. On November 22, 1957, after hearing and depositions, the court discharged both rules.

The depositions reveal that plaintiffs signed a lease for an apartment in the building owned, but not operated, by defendant corporation. The lease was made for a term to commence on September 1, 1956. When the lease was signed at defendant's place of business, namely, 13th and Chancellor Streets, the apartment was occupied by friends of the plaintiffs. The friends vacated the premises prior to August 23, 1956, and gave permission to plaintiffs to move in without giving notice of this friendly arrangement to the landlord. On August 23, 1956 a fire occurred, causing damage to plaintiffs' furniture. Suit was entered against defendant on July 16, 1957.

The sheriff's return recites that the service of the complaint was made at northwest corner of Ogontz and Kemble Avenues, Philadelphia, the place of business of defendant company, to Mr. Robert, the person for the time being in charge thereof. That address was the registered office of the defendant. Sometime after the complaint was left at the building, the secretary of defendant, Mrs. Cutter, picked the paper from the floor of the basement of the building and delivered it to Mr. Unterberger, attorney for defendant. He filed his appearance on August 12, 1957. Upon delivery of the copy of appearance to counsel for plaintiffs, counsel for defendant was informed that judgment had already been entered on August 9, 1957.

Defendants testified, and it is not denied, that Kemble Park, Inc., had no office or place of business in the building and that there was no Mr. Robert at the ...


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