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LEON COHEN ET AL. v. INTERNATIONAL ORGANIZATION MASTERS (03/31/77)

decided: March 31, 1977.

LEON COHEN ET AL.
v.
INTERNATIONAL ORGANIZATION MASTERS, MATES & PILOTS, INTERNATIONAL MARINE DIVISION OF ILA, AFL-CIO, ET AL. APPEAL OF ROBERT J. LOWEN



Appeal From an Order of the Court of Common Pleas, County of Philadelphia, at September Term, 1975, No. 1468, Dated May 11, 1976. No. 1777 October Term, 1976.

COUNSEL

Melvin Alan Bank, Philadelphia, for appellants.

Joseph N. Bongiovanni, III, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Hoffman

[ 247 Pa. Super. Page 84]

Appellant contends that the lower court erred in failing to grant his motion to set aside the purported service of process upon him. We agree and, therefore, reverse the order of the lower court and dismiss the complaint.

On September 11, 1975, appellees, four individuals, instituted a libel action against the International Organization

[ 247 Pa. Super. Page 85]

    of Masters, Mates, and Pilots, International Marine Division of International Longshoremen's Association, AFL-CIO, and four individual defendants, including appellant, in the Court of Common Pleas of Philadelphia. Appellees named appellant as author of the allegedly libellous article. Appellees served process upon the defendant union on September 19, 1975, but did not make service of the original summons upon the four individual defendants. On October 28, 1975, appellees filed a praecipe to reissue the summons; the summons was reissued on the same date. On October 31, 1975, the Philadelphia Sheriff, acting under instructions from appellees' counsel, served the four individual defendants by handing copies of the reissued summons to the person in charge of the International Longshoremen's Association's Offshore Division union office in Philadelphia.*fn1 On November 28, 1975, the four individual defendants, including appellant, filed motions to set aside the service of process.*fn2 Appellant attached an affidavit to his motion stating that he was Secretary-Treasurer of the defendant-union, resided in California, maintained offices in New York City, never maintained offices in Pennsylvania or authorized service of process there, and was never personally served with process. The three other individual defendants asserted that they did not maintain offices or reside in Pennsylvania nor were they officers of the union. On May 12, 1976,

[ 247 Pa. Super. Page 86]

    the lower court denied appellant's motion to set aside the purported service of process and ordered appellant to file an answer to the complaint within thirty days. The court granted the motions of the other three individual defendants because they were not union officers. The lower court held that Pa.R.C.P. 1009(b)(2)(iii); 42 Pa.C.S. § 1009(b)(2)(iii), permits service upon a non-resident officer of a national or international union by leaving a copy of the complaint with a person in charge of any local union office in Pennsylvania. This appeal followed.*fn3

Rule 1009(b)(2)(iii), supra, provides that an individual defendant may be served by handing a copy of the complaint "at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof." The Supreme Court has stated that: "When Rule 1009(b)(2)(iii) refers to an office or place of business 'of the defendant,' it requires that the defendant have more proprietary responsibility and control over the business than that possessed by the average employee. See generally, Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966); Branch v. Foort, 397 Pa. 99, 152 A.2d 703 (1959)." Pincus v. Mutual Assurance Co., 457 Pa. 94, 99, 321 A.2d 906, 910 (1974). See also, Goodrich-Amram 2d, Procedural Rules Service with Forms, § 1009(b): 2 (1976). Appellees seek to recover damages from appellant personally, as author of the allegedly libellous article. Therefore, we must determine whether appellant personally possessed sufficient proprietary responsibility and control over the local Philadelphia union office to make it an office or usual place of business of appellant as an individual for purposes of Rule 1009(b)(2)(iii).

Appellees direct our attention to Pincus v. Mutual Assurance Co., supra. In Pincus, shareholders instituted a class action against a corporation and its directors alleging that the ...


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