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CARRERO v. SELF DRIVE IT CORP. (09/11/69)

decided: September 11, 1969.

CARRERO
v.
SELF DRIVE IT CORP., APPELLANT



Appeal from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1963, No. 3740, in case of Michael Carrero, Jr. v. Donald F. Drinkhouse et al.

COUNSEL

Louis Kattelman, for appellant.

Raymond M. Victor, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Spaulding and Cercone, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 215 Pa. Super. Page 153]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Montgomery, J.:

I am dissenting from the affirmance of the lower court's refusal to open the judgment in this case because I think that the appellant, Self Drive It Corporation, not only has averred a valid defense against the original judgment, but also has established impressive equitable considerations therefor, as required for relief. Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 415 Pa. 561, 204 A.2d 271 (1964).

The appellant denies that it had notice of the suit against it until the president of appellant corporation was personally served at his residence with a subpoena in aid of execution on the judgment which he here seeks to have opened. However, the appellee contends that proper service on Self Drive It Corporation was made on December 13, 1963, by the sheriff, who served on Mr. Joseph F. Haggarty the summons in the trespass action upon which this judgment was based.

Since appellant has not alleged fraud as to the sheriff's return, it is conclusive. Albert Einstein Medical Center v. Forman, 212 Pa. Superior Ct. 450, 243 A.2d 181 (1968). However, our Supreme Court has held that this conclusive nature of a sheriff's return is restricted only to facts stated in the return of which the sheriff presumptively has personal knowledge. The ...


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