from the plaintiff's president requesting him to come to Erie to receive work assignments, and that the defendant was not a regular or salaried employee but was paid according to each job performed; that the defendant did not regularly visit the plaintiff's home office in Erie, Pennsylvania, but he usually come when summoned; that a complaint was prepared and filed by 10 a.m. on July 1, 1964, either prior to or approximately at the time of defendant's arrival at the Erie office of plaintiff corporation; and that arrangements were made for service upon the defendant at the time of filing. Finally, plaintiff's president admitted from the stand in answer to a question by the Court, that one of the motives for summoning defendant to come to plaintiff's office in Erie was to make him available for the service of the summons and complaint if it was determined that a suit would be filed.
The court was of the opinion that extensive inquiry as to the manner of service was demanded in this case where a question of abuse of the court's process was raised. The evidence presented to the court established in the court's mind a case of such abuse of process as to justify striking the return of service and quashing the service in the case.
The general rule applicable to questions of validity of service is stated in 72 C.J.S. Process § 39, p. 1049, as:
'Personal service is void if obtained by inveigling or enticing the person to be served into the territorial jurisdiction of the court by means of fraud and deceit, actual or legal, or by trick or device, and in such case defendant is not required to appear or defend. So service is void if obtained * * * by pretense of settlement, whether the matter of a settlement was first broached by plaintiff or defendant;'
See also 42 Am.Jur. Process § 35.
We cannot escape the conclusion that defendant was enticed to come to Erie, Pennsylvania, under the pretext of receiving new job assignments. We are convinced that the new job assignments was a pretext rather than an actual motive as shown by the fact that the suit was filed and service arranged with the United States Marshal prior to the time that any new job assignments or complaints of plaintiff could be discussed. While it may be argued that defendant customarily came to Erie to receive such assignments it was shown that in this instance defendant was called and told to come to Erie on this specific occasion for such an assignment. Whether or not the matter of a new job assignment was an actual misrepresentation there can be no doubt that the compelling motive for plaintiff's call to defendant was to make him available for the service of process. Similarly, plaintiff's evidence that there was to be a discussion about the alleged unfair trade practices of which defendant was accused prior to the filing of suit is overcome by the evidence that the suit was filed before any such discussion could have taken place. These facts distinguish this case from Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 29 S. Ct. 445, 53 L. Ed. 782, where there was evidence to support a finding that service of summons was only made after a bonafide attempt to confer and settle.
The general rule cited above uses the words 'fraud and deceit, actual or legal, or by trick or device'. From our reading of the reported cases on this subject it does not appear that actual fraud is a necessary element. Any device, or artifice, or trickery, which induces the party to come into the jurisdiction is sufficient. See Eastburn v. Turnoff, 394 Pa. 316, 147 A.2d 353; Western States Refining Co. v. Berry, 6 Utah 2d 366, 313 P.2d 480; Mertens v. McMahon, 334 Mo. 175, 66 S.W.3d 127, 93 A.L.R. 1285.
The present question concerns the propriety of use of the court's process. While there may be no actual fraud present, nevertheless the whole of the testimony here reveals a contrived scheme by which the defendant was brought into the jurisdiction for the purpose of securing service of process on him. There is not even present here the element of settlement of a controversy between the parties because the evidence is void of any indication that defendant was previously aware of plaintiff's objection to his conduct.
We are, therefore, of the opinion that defendant's presence in the jurisdiction was procured by artifice practiced by the plaintiff, unrelieved by any of the saving exceptions established in the reported cases, and that the service of the complaint and the summons in this case represented an abuse of the process of this court. Buchanan v. Wilson, 254 F.2d 849 (6th Cir. 1958); Oliver v. Cruson, 153 F.Supp. 74 (U.S.D.C.Mont.1957).
And now, this 9th day of November, 1964, service of summons and complaint made upon the defendant, William J. Bennett, made on July 1, 1964, is quashed, and the return of service is stricken.
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