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SUSSMAN v. YAFFEE ET UX. (03/18/71)

decided: March 18, 1971.

SUSSMAN
v.
YAFFEE ET UX., APPELLANTS



Appeal from decree of Court of Common Pleas of Montgomery County, No. 70-08366 of 1970, in case of Edward Sussman and Millicent Sussman, his wife, v. Ned Yaffee and Rose Yaffee, his wife.

COUNSEL

Bernard C. Bryman, with him William A. Robbins, for appellants.

Walter W. Rabin, with him Meltzer & Schiffrin, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Chief Justice Bell.

Author: Bell

[ 443 Pa. Page 13]

This appeal raises the question of whether or not the validity of service of process under Act No. 152, approved July 1, 1970, 12 P.S. ยงยง 341-346 (Supp. 1971),*fn* which provides, in certain enumerated instances, for service on nonresidents, is to be measured as of the date the action is instituted or as of the date the operative facts occurred.

On June 10, 1970, defendants (appellants) sold property in Montgomery County to the plaintiffs (appellees). The next day, the defendants moved to Florida. On July 2, 1970, the plaintiffs filed a complaint in Equity alleging that the defendants had misrepresented the condition of the property and had "maliciously, fraudulently, and with the intention to deceive plaintiffs" concealed certain serious structural defects on the property. The prayer of the complaint was for rescission and reconveyance, and for compensatory and punitive damages resulting from the alleged tortious conduct. The complaint was served upon the defendants in Florida by certified mail on July 11, and July 21, 1970.

Defendants filed preliminary objections raising the question of jurisdiction over the person. Defendants' preliminary objections were dismissed by the Court en banc, which directed plaintiffs "to effect service of the complaint in equity upon the defendants by service upon the Secretary of the Commonwealth pursuant to Act

[ 443 Pa. Page 14]

No. 152."*fn** Plaintiffs thereafter served defendants by service upon the Secretary of the Commonwealth; whereupon defendants took this appeal.

For the purposes of this appeal, it is assumed that the defendants committed a tortious act within the Commonwealth prior to the passage of the aforesaid Act, and that they became nonresidents thereafter. The sole issue, therefore, is whether or not the Act applies to nonresidents who had been residents of Pennsylvania and had committed tortious conduct in our State before the passage of the Act.

Act No. 152 provides, in pertinent part: " From and after the passage of this act, any nonresident of this Commonwealth who . . . shall have committed a tortious act within this Commonwealth,**fn** or any such individual who at the time of the commission of the tortious act within the Commonwealth was a resident of this Commonwealth who shall subsequently become a nonresident or shall conceal his whereabouts, shall be conclusively presumed to have designated and constituted the Secretary of the Commonwealth of Pennsylvania as his agent for the service of process in any civil action or proceedings instituted in the courts of the Commonwealth of Pennsylvania against such individual."

It is appellants' contention that the words "who shall have committed" actually mean "who shall commit," and therefore the Act can ...


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