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CHARLES F. LUPPOLD v. LIVINGOOD ET UX. (11/16/61)

November 16, 1961

CHARLES F. LUPPOLD, INC.
v.
LIVINGOOD ET UX., APPELLANTS.



Appeal, No. 326, Oct. T., 1961, from order of Court of Common Pleas of Berks County, Jan. T., 1961, No. 48, in case of Charles F. Luppold, Inc. v. Sidney A. Livingood et ux., doing business as Fourth & Penn Diner. Order affirmed.

COUNSEL

Calvin Lieberman, with him Clement James Cassidy, and Lieberman and Cassidy, for appellants.

Raymond C. Schlegel, with him Donald K. Bobb, George B. Balmer, and Snyder, Balmer & Kershner, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 196 Pa. Super. Page 483]

OPINION BY FLOOD, J.

This is an appeal from the refusal of the court below to strike from the record the judgment entered against defendant Sidney A. Livingood, individually, for failure to file an answer. He contends that the judgment entered against him individually is invalid because he was not personally served and no notice was given to him in accordance with the Berks County Rule of Court adopted to implement Pa. R.C.P. 2132(c). Rule 2132(c) provides: "No judgment shall be entered against a partner individually named in the action who has not been personally served or who has not appeared as a party or as a witness in the action until the plaintiff has given such partner such notice of the pendency of the action as the court by general rule or special order shall direct."

The return of the sheriff reads as follows:

"Served the within Complaint Assumpsit upon the within named defendants, doing business as Fourth & Penn Ciner as follows: December 13, 1960, at 10:20 a.m. (E.S.T.), upon Dorothy E. Livingood, personally;

"Eo die, at the same time, upon Sidney A. Livingood, 'by handing to Dorothy E. Livingood, his wife, an adult member of his family, two (2) certified copies thereof at their usual place of business, Fourth & Penn Diner, 421 Penn Street, Reading, Berks County, Pa., and making known to her the contents thereof.' So answers Harold A. Yetzer, Sheriff of Berks County, Pa."

[ 196 Pa. Super. Page 484]

Service upon Sidney A. Livingood by handing a copy of the complaint to his wife at his place of business is not valid under Pa. R.C.P. 1009(b) unless she is his agent or is in charge at that place. The return does not show that she was in charge of the business premises and there is nothing in the record to show that she was. However, if she was his partner, she was his agent (Uniform Partnership Act of March 26, 1915, P.L. 18, § 9, 59 P.S. § 31), and service upon her at his place of business would be good service upon him individually, not only under Pa. R.C.P. 2131(a) but also under Pa. R.C.P. 1009(b)(2)(iii).

While the return may not be contradicted, it may be read with the caption which is really part of it. It appears, from the caption of the case, that the wife was her husband's partner. Pa. R.C.P. 2128(a). The words "doing business as" are identical in meaning with "trading as" in this connection. The caption shows that Dorothy, Sidney's wife, was also his business partner in the business carried on at the place where service was made. This is borne out by the allegation of the complaint, a copy of which was served by the sheriff, to the effect that, the defendants are "jointly engaged in the operation of said diner". The statements in the caption and the complaint that the defendants were "doing business" as Fourth and Penn Diner is a clear indication that they were not merely owners of the business as tenants by the entireties or otherwise, or that they were merely sharing ...


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