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HOLLINGER v. HOLLINGER (01/05/65)

decided: January 5, 1965.

HOLLINGER
v.
HOLLINGER, APPELLANT



Appeal from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1961, No. 1371, in case of George Thomas Hollinger, Jean Mary Hollinger, parents and natural guardians of Robert Hollinger, et al. v. Rita Hollinger and Alvin Hollinger.

COUNSEL

Herbert F. Holmes, Jr., with him Elston C. Cole, for appellant.

Jerome E. Ornsteen, with him Ornsteen & Lunine, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts.

Author: Jones

[ 416 Pa. Page 475]

The principal issue presented upon this appeal is the extent to which the return of service of a sheriff is deemed conclusive. This issue arises from the pleadings -- the complaint and preliminary objections -- in an intra-family lawsuit stemming from a motor vehicle accident.

The minor plaintiffs, passengers in a motor vehicle operated by their 20 year old aunt, Rita Hollinger, sustained personal injuries when the motor vehicle collided with a telephone pole in Fort Washington, Montgomery County. Seeking damages for the minor plaintiffs' injuries, the minor plaintiffs' parents -- Rita Hollinger's brother and sister-in-law -- instituted a trespass action against Rita Hollinger in Philadelphia County on the last day prior to the running of the statute of limitations. On behalf of Rita Hollinger, preliminary objections were filed which challenged the validity of the service purported to have been made on Rita Hollinger in Philadelphia County. The court below dismissed the preliminary objections and upheld the service: from its order this appeal has been taken.

The sheriff's return recited, inter alia, that service had been made by handing a true copy of the "writ to Mrs. Alvin Hollinger [another sister-in-law of Rita Hollinger], an adult member of the family of [Rita Hollinger] . . . on 1-2, 1962, at 3:40 o'clock P.M. . . . at 5537 N. Palethorpe St., in the County of Philadelphia, State of Pennsylvania, the dwelling house of said [Rita Hollinger]." (Emphasis supplied). Rita Hollinger's counsel contends, and the record unequivocally reveals, that the "dwelling house" and residence of Rita Hollinger was not and had never been at 5537 N. Palethorpe St., Philadelphia, and urges, therefore,

[ 416 Pa. Page 476]

    that the service was invalid. Appellees contend that, no matter how incorrect the sheriff's return may be in its statement that 5537 N. Palethorpe Street was the "dwelling house" of Rita Hollinger, the sheriff's return, in the absence of fraud, is conclusive and immune from attack.

Beyond any question, the record established these facts: (1) the accident took place in Montgomery County; (2) the residence of plaintiffs was in Bucks County; (3) on the date of accident, Rita Hollinger's residence was in Fort Washington, Montgomery County, and, on the date of service, Rita Hollinger resided in a convent in Merion, Montgomery County, where she had resided for approximately one and one-half years; (4) Rita Hollinger never resided at 5537 N. Palethorpe Street, Philadelphia, that address being the residence of Mr. and Mrs. Alvin Hollinger, Jr., brother and sister-in-law, respectively, of Rita Hollinger; (5) service at the Philadelphia residence was made at the suggestion of George T. Hollinger, minor plaintiffs' male parent, to Alvin Hollinger, Jr., his brother; (6) the statement in the sheriff's return that 5537 N. Palethorpe Street was the "dwelling house" of Rita Hollinger is untrue; (7) the Philadelphia address was a fictional address created for Rita Hollinger by the minor plaintiffs' male parent.

Our courts have long adhered to the rule that, in the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence: Vaughn v. Love, 324 Pa. 276, 278, 279, 188 A. 299, and cases therein cited; Kane v. Travis, 172 Pa. Superior Ct. 220, 222, 92 A.2d 902; Commonwealth v. Degillio, 197 Pa. Superior Ct. 568, 571, 180 A.2d 267. Despite the fact that the early history of this rule "is clouded by contradictions", that "all but eight states, of which Pennsylvania is one, have thrown off the old idea that

[ 416 Pa. Page 477]

    the return of a sheriff must be accepted as verity", that on occasions the rule has resulted in "exceeding hardship" and that we have "been somewhat inconsistent in our rulings relating to the return and the immutability of a record" (Vaughn, supra, pp. 279, 280), we have continued adherence to this rule because it has tended to the security of a record. Our experience with this rule has indicated that it is generally salutary and worthy of preservation; from this rule we do not depart. The difficulty in the case at bar is that the court below applied the rule to a situation to which it is inapposite.

The rule of conclusiveness of a return of service of process is based upon the presumption that a sheriff, acting in the course of his official duties, acts with propriety and, therefore, when the sheriff in the course of such official duties makes a statement, by way of an official return, such statement is given conclusive effect. However, both logic and common sense restrict the conclusive nature of a sheriff's return only to facts stated in the return of which the sheriff presumptively has personal knowledge, such as when and where the writ was served; when, in his official return, the sheriff states that he served a writ at a certain time and at a certain place, such facts are known to the sheriff personally and should be given conclusive effect. However, the immutability of a return should not extend (a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the ...


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