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FIREMAN'S FUND INS. CO. v. MYERS
October 8, 1968
FIREMAN'S FUND INSURANCE COMPANY
George W. MYERS and Regina Myers
The opinion of the court was delivered by: WEINER
This is an action based on a building contractor's bond. Plaintiff, as part of the relief prayed for, has petitioned the court for a preliminary injunction concerning the sale or the funds derived from the sale of a certain piece of property. Before the court at the present time is defendant's motion to strike service of summons and the complaint. A hearing was ordered and held on September 26, 1968.
The record discloses that the Marshall's return read as follows:
"I hereby certify and return that I served the annexed Summons and Complaint on the therein named George W. Meyers by handing to a true and correct copy thereof upon Anna Lyons secretary of George W. Myers Company, in charge of the office, at the usual place of business of the defendant presently at 120 Bainbridge Street (as per instructions of plaintiff's attorney)".
Defendants attack the propriety of this service and deny that Anna Lyons, when served, was an employee of the George W. Myers Company.
An action for an injunction is an action in personam and the court must have in personam jurisdiction over the party against whom the injunction runs. Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 38 S. Ct. 65, 62 L. Ed. 260 (1917); Eighth Regional War Labor Board v. Humble Oil & Refining Co., 145 F.2d 462 (5th Cir. 1944), cert. denied, 325 U.S. 883, 65 S. Ct. 1577, 89 L. Ed. 1998 (1945); Brooklyn Nat. League Baseball Club v. Pasquel, 66 F. Supp. 117 (E.D.Mo.1946). Rule 4(d) of the Federal Rules of Civil Procedure provides for service to be made in the manner prescribed by the law of the state in which the district court is held as well as by federal statute. Thus if service is valid under Pennsylvania law, it is effective in the Eastern District.
Rule 1503 of the Pennsylvania Rules of Court, 12 P.S. Appendix state that a judgment, order or decree will not bind a defendant personally unless he is served within the county or otherwise submits himself to jurisdiction of the court. Rule 1504 provides for service to be made in actions in equity in the manner provided for in an action in assumpsit. An injunction, of course, is an equitable remedy. Finally, Pennsylvania Rule of Civil Procedure 1009(b) provides in pertinent part:
"(b) When the defendant is an individual, the writ of summons, or the complaint if the action is commenced by complaint, may be served
(1) By handing a copy to the defendant; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof".
Thus, if Anna Lyons was employed by George W. Myers at the time of service, this court has proper jurisdiction. See Robinson v. Robinson, 362 Pa. 554, 67 A.2d 273 (1940); 1 ...
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