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MCCULLY-SMITH ASSOCS. v. ARMOUR & CO.

September 18, 1972

McCULLY-SMITH ASSOCIATES, INC., a corporation, Plaintiff,
v.
ARMOUR AND COMPANY, a corporation, and Daniel W. Smith, Defendants


Scalera, District Judge.


The opinion of the court was delivered by: SCALERA

SCALERA, District Judge.

 This action involves alleged tortious interference by defendants Armour and Company and Daniel W. Smith, an employee of Armour, with a contract between plaintiff and defendant Armour and also tortious inducement of a refusal to deal on the part of defendant.

 Now pending before this court is defendant Daniel W. Smith's motion to quash service of process.

 Plaintiff first attempted to serve defendant Smith by leaving a copy of the summons and complaint with a representative of Armour at the Pittsburgh job site. It later conceded this attempt was invalid at a hearing before Judge Dumbauld on October 29, 1969.

 Plaintiff then attempted to obtain substituted service on defendant Smith on June 10, 1969, by mailing a certified letter to the Secretary of the Commonwealth and to defendant's house in Louisville, Kentucky, which was returned to the sender. Defendant moved to quash this service of process, asserting defendant has not been properly served under Pennsylvania rules and statutes. Plaintiff avers service on Smith has been properly effectuated pursuant to Pennsylvania Rules of Civil Procedure 2077 and 2079 and pursuant to Pennsylvania's Act of July 1, 1970, P.L. , No. 152, 12 P.S. ยง 341.

 It is plaintiff's contention that defendant has concealed his whereabouts and is a non-resident engaged in business in the Commonwealth and is therefore amenable to substitute service of process as effected pursuant to Pennsylvania Rules of Civil Procedure 2077 and 2079. These rules provide:

 
Rule 2077. Application of Rules
 
(a) The rules of this chapter apply to
 
(1) actions as to which the laws of this Commonwealth authorize service of process upon a non-resident, or a resident who becomes a non-resident or who conceals his whereabouts; and
 
(2) actions as to which the laws of this Commonwealth authorize service of process upon a non-resident individual engaged in business within the Commonwealth.
 
Rule 2079. Service of Process
 
(a) If an action of the class specified in Rule 2077(a)(1) is commenced in the county in which the cause of action arose, process may be served upon the defendant personally or by having the sheriff of said county send by registered mail, ...

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