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BETCHER v. HAY-ROE (04/16/68)

decided: April 16, 1968.

BETCHER
v.
HAY-ROE, APPELLANT



Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1967, No. 3441, in case of Isolde G. Betcher v. Victor Hay-Roe and Elizabeth M. Hay-Roe, his wife.

COUNSEL

Cosmos J. Reale, for appellants.

Richard S. Crone, with him Abe R. Cohen, and Crone and Cohen, for appellee.

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

Author: O'brien

[ 429 Pa. Page 373]

This is an appeal from an order of the Court of Common Pleas of Allegheny County, overruling appellants' preliminary objections raising a question of jurisdiction.

The alleged accident occurred on May 18, 1966, at 1163 Arrowood Drive, Mt. Lebanon, Allegheny County, Pennsylvania, where the appellants were tenants of a one family home. At that time, the appellee, who was baby-sitting for the appellants' children, allegedly was injured as a consequence of the collapse of a chair in which she was sitting in the dining room. The chair was the property of the appellants.

On June 25, 1966, the appellants removed from the aforesaid premises and became residents of the State of Hawaii. Appellee instituted suit in the Court of Common Pleas of Allegheny County, at No. 3441 October Term, 1967. Appellee's Complaint was served upon the Secretary of the Commonwealth and upon the appellants by Registered Mail in accordance with the procedure prescribed by Pa. R. C. P. 2079(a).

The appellants raised preliminary objections alleging that service of process was defective and contesting the jurisdiction of the court over the persons of the appellants.

The court below, after listening to the arguments of counsel, concluded that the situation presented was one which fell within the scope of the Act of July 2, 1937, P. L. 2747, 12 P.S. § 331, and that substituted service of process had been properly accomplished.

The issue before this court is a very narrow one. Is the substituted service permitted under § 331 of the aforementioned Act? That section provides: "Any nonresident of this Commonwealth being the owner, tenant or user of real estate located within the Commonwealth of Pennsylvania, and the footways and curbs adjacent

[ 429 Pa. Page 374]

    thereto, or any such resident of this Commonwealth who shall subsequently become a nonresident, shall, by the ownership, possession, occupancy, control, maintenance, and use, of such real estate, footways, and curbs, make and constitute the Secretary of the Commonwealth of Pennsylvania his, her, its, or their agent for the service of process in any civil action or proceedings instituted in the courts of the Commonwealth of Pennsylvania against such owner, tenant, or user of such real estate, footways, and curbs, arising ...


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