Appeal, No. 43, Jan. T., 1959, from order of Court of Common Pleas of Delaware County, Dec. T., 1956, No. 1443, in case of M. H. Eastburn, trading as Interstate Investigation Service, v. Sol S. Turnoff. Order reversed.
John H. Clark, Jr., with him Edward M. Seletz, and Seletz & Clark, for appellant.
John R. Graham, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Should service of civil process be set aside on evidence that the service was made as the result of a ruse practised on the defendant? That is the question involved in this case.
Some time during 1951, Sol S. Turnoff, a resident of Philadelphia, who had received several threatening letters, employed M. H. Eastburn, a private detective, to do some investigative and protective work for him. Later on a dispute arose between them as to the period of time these services were rendered. This was followed by a claim by Eastburn that he had not been fully compensated. Accordingly, on February 5, 1957, he entered a suit in assumpsit against Turnoff in Delaware County where Eastburn lived. On February 7, 1957, a deputy sheriff of Delaware County served the summons in assumpsit on Turnoff in Haverford, Delaware County. Turnoff filed preliminary objections, averring that he had been lured into Delaware County by false representations made by Eastburn through the District Attorney's office in Philadelphia. He prayed that the service be set aside. Eastburn denied the averments of fraud and deceit and asked that the preliminary objections be dismissed.
The Court of Common Pleas of Delaware County took testimony on the issue and dismissed the preliminary objections. The defendant appealed.
While there are conflicting statements in the record as to what caused Turnoff to go to Delaware County, there can be little doubt that he did not make the journey on his own initiative. Turnoff testified that I. I. Solovay, a police officer assigned to the District Attorney's office in Philadelphia, informed him that he had received a telephone call from Eastburn in Delaware County to the effect that Eastburn had some confidential
information which would be of considerable value to the District Attorney's office but which he could not turn over to Solovay without the consent of Turnoff, since it had been gathered while Eastburn was working for Turnoff. Further, Eastburn said, according to Solovay, Turnoff would need to come into Delaware County to give that consent. Turnoff told Solovay that if Eastburn would telephone him he would gladly authorize the release of any information in his possession which would be useful to the District Attorney of Philadelphia but that, under no circumstances, would he go to Delaware County to impart that authorization.
Solovay himself testified at length as to how, in the latter part of January, 1957, Eastburn had called the District Attorney's office where Solovay was employed, how Eastburn had offered him confidential information, but how he could only give it to him with the approval of Turnoff, which approval had to be personally made known to him in Delaware County. Solovay said that Eastburn made many ...