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COMMONWEALTH PENNSYLVANIA v. ALBERT BISLAND (03/24/77)

decided: March 24, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT BISLAND, FRANK DEANGELIS, MARIETTA VOTTO, ROBERT GEFFEN, ROBERT SCHUERMAN, ROBERT FREEMAN, MARIE ANN PEDUTO AND GENE SIMMS. MARIETTA VOTTO, APPELLANT



Appeal from the Order of the Court of Common Pleas of Dauphin County in case of Commonwealth Court of Pennsylvania v. Albert Bisland, Frank DeAngelis, Marietta Votto, Robert Geffen, Robert Schuerman, Robert Freeman, Marie Ann Peduto and Gene Simms, No. 447 September Term, 1974.

COUNSEL

Charles E. Friedman, with him Cooper, Friedman & Butler, for appellant.

Kathleen Herzog Larkin, Deputy Attorney General, with her Joseph W. McGuire, Deputy Attorney General, J. Justin Blewitt, Jr., Deputy Attorney General, and Robert P. Kane, Attorney General, for appellees.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 29 Pa. Commw. Page 390]

This is an appeal from an order of the Court of Common Pleas of Dauphin County which overruled the preliminary objections made by Marietta Votto (appellant) to the jurisdiction of that court.*fn1

The appellant was named as a defendant with seven others in a complaint in trespass brought by the Commonwealth. The complaint alleged a conspiracy by the defendants to defraud the Commonwealth of money in connection with a flood reconstruction loan, and, because the appellant is a resident of Connecticut, service was made upon the Department of State. The appellant filed a preliminary objection and supporting depositions contending that the court did not have in personam jurisdiction over her because she is a non-resident and is not amenable to service of process under the Long Arm statute, 42 Pa. C.S.A. § 8301 et seq. Although the preliminary objection was properly endorsed with a notice to plead within 20 days, the Commonwealth did not file a responsive pleading, and the lower court overruled the preliminary objection, holding that the allegations in the complaint provided sufficient grounds for jurisdiction over the appellant. This appeal followed.

[ 29 Pa. Commw. Page 391]

Challenges to jurisdiction over non-residents under the Long Arm statute present two questions: (1) whether the non-resident's alleged conduct was within the relevant provisions of the statute and, if so, (2) whether the exercise of in personam jurisdiction over the non-resident in the particular circumstances of this case complies with the constitutional mandate of due process of law. Action Industries, Inc. v. Page 391} Wiedeman, 236 Pa. Superior Ct. 447, 346 A.2d 798 (1975). The Commonwealth has stipulated that it is relying on the provisions of either Section 8303 or Section 8305 of the Long Arm statute, 42 Pa. C.S.A. §§ 8303, 8305, as the basis of jurisdiction over the person of the appellant. These sections provide in pertinent part:

§ 8303. Commission of tortious acts by individuals

Any nonresident of this Commonwealth, who, acting individually, under or through a fictitious business name, or through an agent, servant or employee, shall have committed a tortious act within this Commonwealth . . . shall be conclusively presumed to have designated the Department of State as his agent for the receipt of service of process in any civil action or proceeding instituted in the courts of this Commonwealth against such individual.

§ 8305. Causing harm by individuals

Any nonresident of this Commonwealth who, acting outside of this Commonwealth, individually, under or through a fictitious business name, or through an agent, servant or employee, shall have caused any harm within this Commonwealth . . . shall be subject to service of process in any civil action or proceeding instituted in the courts of this Commonwealth arising out of or by reason of any such conduct. Service of process in any ...


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