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MESSICK v. GORDON (04/23/69)

decided: April 23, 1969.

MESSICK, APPELLANT,
v.
GORDON



Appeal from order of Court of Common Pleas of Cumberland County, May T., 1968, No. 655, in case of James A. Messick, trading and doing business as Georgian Hall Motor Lodge, v. William J. Gordon.

COUNSEL

George F. Douglas, Jr., for appellant.

James W. Evans, with him Goldberg, Evans & Katzman, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this opinion.

Author: O'brien

[ 434 Pa. Page 31]

This is an appeal from the order of the Court of Common Pleas of Cumberland County, sustaining the preliminary objection of defendant, William J. Gordon, attacking the jurisdiction of the court over his person. The complaint alleged that the defendant, appellee here, a resident of the State of Virginia, was a patron of the plaintiff's motor lodge where he occupied a room, which, through appellee's negligence, caught fire and resulted in extensive damages. Service on appellee was made under Pennsylvania Rule of Civil Procedure 2079(a) by mailing registered letters to the Secretary of the Commonwealth and to appellee at his last known address. Appellee filed a preliminary objection attacking the Pennsylvania court's jurisdiction over his person. That objection was sustained and this appeal followed.

Although no motion to quash was filed, this Court, sua sponte, raised the question of whether the case was properly before us. We conclude that it is. The Act of March 5, 1925, P. L. 23, § 1, 12 P.S. § 672, provides as follows: "Whenever in any proceeding at law or in equity the question of jurisdiction over the defendant or of the cause of action for which suit is brought is raised in the court of first instance, it shall be preliminarily determined by the court upon the pleadings or with depositions, as the case may require; and the decision may be appealed to the Supreme Court or the Superior Court, as in cases of final judgments."

Section 3 of the same act, 12 P.S. § 674, provides that the appeal allowed in § 1 must be taken and perfected

[ 434 Pa. Page 32]

    within fifteen days from the date the decision is rendered. The instant appeal was not taken and perfected within fifteen days from the date of the decision below. The question thus becomes whether plaintiff has lost his right to appeal. We think not. This very issue was considered in Commonwealth v. Shaffer, 175 Pa. Superior Ct. 100, 110, 103 A.2d 430 (1954): "It seems clear that this limitation on the time for taking an appeal applies only to a defendant who questions the jurisdiction of the court and who is specifically given the right of appeal from an interlocutory judgment against him on that question. Wilson v. Garland, 287 Pa. 291, 293, 135 A. 131. As to . . . plaintiff . . . the judgment was final and not interlocutory since it dismissed the cause of action. 9 Stand. Pa. Prac., Appeals, § 24. The 1925 Act, supra, does not apply to a plaintiff's right of appeal from such final judgment (cf. Mauser v. Mauser, 326 Pa. 257, 260, 192 A. 137) and plaintiff's appeal taken within 36 days . . . was in time." (Emphasis in original).

In Mauser v. Mauser, cited above, this Court held that the Act of 1925 did not apply to plaintiff's appeal from a final decision dismissing a bill in equity. Such a result should be obvious from the consequences stated in § 3 for failure to comply with the time limitation of the Act: "A failure to appeal within the time specified will be deemed a waiver of all objections to jurisdiction over the defendant personally." Clearly this can apply only to an appeal by the defendant and not to an appeal by the plaintiff. We can thus pass on the issue raised by the preliminary objection.

Appellant contends that the substituted service on appellee is valid under the provisions of § 1 of the Act of July 2, 1937, P. L. 2747, 12 P.S. § 331: "From and after the passage of this act, any nonresident of ...


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