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NORTH STAR COAL COMPANY v. TEODORI (05/13/71)

decided: May 13, 1971.

NORTH STAR COAL COMPANY
v.
TEODORI, APPELLANT



Appeal from orders of Court of Common Pleas of Washington County, July T., 1969, Nos. 28 and 78, in case of North Star Coal Company v. Thomas A. Eddy and Carlo Teodori, partners t/d/b/a Mac Coal Company.

COUNSEL

Paul A. Simmons, with him Tempest & Simmons, for appellant.

Ivan E. Birsic, with him Cauley, Birsic & Conflenti, for appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Jones took no part in the consideration or decision of this case.

Author: Roberts

[ 442 Pa. Page 584]

This appeal arises out of an action of mortgage foreclosure and presents an issue of first impression in this Court concerning the proper method of serving process upon a dissolved but unterminated partnership. The pertinent facts are as follows:

In the summer of 1961, appellant Carlo Teodori and one Thomas Eddy formed a partnership with an office located at Room 324 of the Porter Building in Pittsburgh, Pennsylvania, and registered the fictitious partnership name, Mac Coal Company, with the Prothonotary of the Court of Common Pleas of Allegheny County.

On February 13, 1964, appellant and Eddy, as partners trading and doing business as the Mac Coal Company, purchased certain unmined coal from appellee North Star Coal Company and executed a purchase money mortgage and bond in appellee's favor to secure payment of an $80,000 purchase price. The terms of the bond provided that quarterly payments be made to the mortgagee, and for some time thereafter the required installments were remitted in timely fashion from the partnership office at Room 324 of the Porter Building.

[ 442 Pa. Page 585]

On April 30, 1965, appellant withdrew from the partnership. He did not at that time inform any of the partnership creditors of his withdrawal but instead assumed that his attorney would perform any necessary notifications. Appellant took no further steps to publicize his withdrawal until July 10, 1969, when notice of the partnership's dissolution was filed with the Allegheny County Prothonotary.

Notwithstanding the partnership's dissolution in 1965 and for several years thereafter, quarterly mortgage payments were made to appellee, at first from the partnership office at Room 324 of the Porter Building and later from Thomas Eddy's private law office in Room 500 of the Porter Building.

The mortgage payment due May 1, 1969 was not made, and appellee instituted an action of mortgage foreclosure in the Court of Common Pleas of Washington County against appellant and Eddy as partners in the Mac Coal Company. Appellee's complaint was filed on July 11, 1969, one day after the filing in Allegheny County of the notice of partnership dissolution. Service was made on Thomas Eddy's private secretary at Eddy's law office at Room 500 of the Porter Building.

When neither appellant nor Eddy answered or appeared within the prescribed time, default judgment in the sum of $70,000 with interest was entered in favor of appellee, and on November 7, 1969, the mortgaged partnership property was sold at a sheriff's sale. On December 26, 1969, appellant petitioned the Court of Common Pleas of Washington County to set aside the sheriff's sale on the ground that he had not been properly served with process in the underlying mortgage foreclosure action. Following a hearing the petition was denied. A short time ...


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