Appeal, No. 32, Feb. T., 1962, from order of Court of Common Pleas of Luzerne County, Oct. T., 1948, No. 2262, in case of Commonwealth of Pennsylvania, Department of Labor and Industry v. Nicholas Degillio et al. Order affirmed; reargument refused May 2, 1962.
Nicholas R. Degillio, appellant, in propria persona.
Julius Altman, Special Assistant Attorney General, with him John F. Finney and Morley W. Baker, Assistant Attorneys General, and David Stahl, Attorney General, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Watkins Montgomery, and Flood, JJ. (woodside, J., absent).
[ 197 Pa. Super. Page 569]
This is an appeal from the order of the Court of Common Pleas of Luzerne County discharging a rule to show cause why a judgment, in favor of the Commonwealth of Pennsylvania, Department of Labor and Industry, and against Nicholas Degillio, Joseph Forge and Michael Angelo, individually and as co-partners, formerly trading as Deforan Coal Company, in the
[ 197 Pa. Super. Page 570]
amount of $1273.03, should not be opened as to Nicholas Degillio, the appellant.
This judgment, in the amount of $1273.03, was based on the defendants' nonpayment of unemployment compensation contributions. On September 24, 1948, the Commonwealth issued a scire facias sur lien against the defendant-appellant. According to the return of service it was served by the Sheriff of Luzerne County, acting through his deputy, John Steve, on October 1, 1948, on the appellant "by handing to his mother, Minnie DeGillio, at his home, Kehoe Berge Road, City of Pittston, Luzerne County, Pennsylvania, a true and attested copy of the within scire facias sur lien and making known to her the contents thereof."
On December 6, 1948, judgment was entered against the appellant for want of an affidavit of defense. On the same date an affidavit of non-military service of the appellant was filed with the same address as given in the Sheriff's return. On June 16, 1959, the petition to open this judgment, as it affects the appellant, was filed. This averred that the appellant was not served with the pleadings, and that he was not a partner in the Deforan Coal Company. The Commonwealth's answer set forth the sheriff's return of service; the registration of the fictitious name of the Deforan Coal Company, showing the appellant, Nicholas Degillio, as one of the partners; the employer's initial statement filed with the Bureau of Employment Security by the Deforan Coal Company, signed by the appellant, Nicholas Degillio, as one of the partners. Depositions were taken and the court en banc below discharged the rule.
The testimony of the appellant disclosed that at the time of service he did not reside on Kehoe Berge Road, in the City of Pittston, the home of his mother, but that he lived in Kingston, Pennsylvania, with his family. He admitted having been a ...