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MYERS v. MOONEY AIRCRAFT (11/14/67)

decided: November 14, 1967.

MYERS
v.
MOONEY AIRCRAFT, INC., APPELLANT. URELLA V. MOONEY AIRCRAFT CORPORATION, APPELLANT



Appeals from orders of Court of Common Pleas of Lancaster County, Aug. T., 1963, No. 23, and July T., 1963, No. 83, in cases of Bessie K. Myers and The Fulton National Bank of Lancaster, executor of estate of Helen Elizabeth Myers, deceased v. Mooney Aircraft, Inc.; and Rocco P. Urella, executor of estate of Maurice F. Wilhere, deceased, Mary Wilhere, Maurice F. Wilhere, Jr. et al. v. Fulton National Bank of Lancaster, administrator of estate of Helen Elizabeth Myers, deceased, and Mooney Aircraft Corporation.

COUNSEL

Bernard M. Borish, with him Bernard Chanin, Clarence C. Newcomer, and Wolf, Block, Schorr and Solis-Cohen, and James W. Wilson, and McGinnis, Lochridge, Kilgore, Hunter & Wilson, of the Texas Bar, for appellant.

Charles Foltz Herr, with him Appel, Ranck, Herr & Appel, for appellees.

Charles A. Lord, with him Jack J. Bernstein, Frank Edward Roda, and Richter, Lord & Cavanaugh, for appellee.

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

Author: Jones

[ 429 Pa. Page 179]

On August 9, 1962, at Forest Hills, Maryland, an airplane, allegedly piloted by Helen Myers, crashed and both Helen Myers and her passenger, Maurice Wilhere, were killed. This airplane had been manufactured by Mooney Aircraft, Inc. (Mooney), a Texas corporation.

As a result of this accident, two trespass actions were instituted in the Court of Common Pleas of Lancaster County: (1) the personal representative and survivors of Maurice Wilhere sued the personal representative of the Helen Myers Estate and Mooney (herein described as the Wilhere action) and (2) the personal representative of the Helen Myers Estate sued Mooney (herein described as the Myers action).

In the Wilhere action, the complaint was filed on July 24, 1963, and service of process on Mooney was sought to be effected on the same date by delivery of a copy of the complaint to one Henry Weber, a distributor and director of Mooney, at Weber's place of business in Lancaster County, said service purporting to be made under the provisions of Pa. R.C.P. 2180 (a)(2). In the Myers action, the complaint was filed on August 9, 1963, and service of process on Mooney was sought to be effected by two methods: (a) by delivery of a copy of the complaint to Weber at his place of business on August 12, 1963, purportedly in compliance with Pa. R.C.P. 2180(a)(2) and (b) by service of a copy of the complaint on August 22, 1963, by registered mail, upon the Secretary of the Commonwealth under the provisions of ยง 1011B of the Business Corporation Law of 1933, as amended.*fn1

In the Wilhere action, Mooney filed neither an appearance nor an answer and, on April 7, 1965, -- over

[ 429 Pa. Page 180]

    one and one-half years after service was made --, a default judgment was entered against Mooney. One year later, Mooney filed a petition to strike off the default judgment on the ground that, by reason of defective service, the court had failed to acquire jurisdiction so as to permit the entry of an in personam judgment. The court below entered an order denying Mooney's petition to strike off the judgment; from that order an appeal has been taken.*fn2

In the Myers action, Mooney filed preliminary objections -- over two and one-half years after service was made --, raising a question of jurisdiction over its person by reason of defective service of the complaint. The court below entered an order overruling the preliminary objections; from that order an appeal has been taken.*fn3

In both the Wilhere and Myers actions, the record before this Court consists solely of certain depositions, affidavits and exhibits which were introduced in evidence in a trespass action in the United States District Court for the Western District of Pennsylvania, i.e., Donnelly v. Mooney Aircraft, Inc., Civil Action No. 63-458.*fn4 In large part, both the Myers and Wilhere

[ 429 Pa. Page 181]

    actions involve identical factual and legal issues: therefore, the records in both actions were consolidated and we will consider both appeals in this opinion.

Service in the Myers Action Under ...


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