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CITY PHILADELPHIA v. HENRY C. DAVIS (05/03/77)

decided: May 3, 1977.

CITY OF PHILADELPHIA
v.
HENRY C. DAVIS, APPELLANT. CITY OF PHILADELPHIA, APPELLANT V. CLIFFORD H. MILLER. CITY OF PHILADELPHIA, APPELLANT V. FREDERICK G. FRICK



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in cases of City of Philadelphia v. Henry C. Davis, No. 1981 August Term, 1974; City of Philadelphia v. Clifford H. Miller, No. 2713 February Term, 1975; and City of Philadelphia v. Frederick G. Frick, No. 2567 September Term, 1974.

COUNSEL

Kenneth E. Aaron, for Davis, Miller and Frick.

Martin G. Malloy, with him Sheldon L. Albert, City Solicitor; Stephen Arinson, Chief Deputy City Solicitor; Beryl E. Hoffman, Deputy City Solicitor; and Stewart M. Weintraub, Assistant City Solicitor, for City of Philadelphia.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 30 Pa. Commw. Page 35]

Henry C. Davis, Clifford H. Miller and Frederick G. Frick work for the Defense Personnel Support Center, a division of the Defense Supply Agency which is in turn a part of the United States Department of Defense. Their place of employment is a facility of the Department of Defense located at 2800 South 20th Street, Philadelphia. The City of Philadelphia filed a complaint in assumpsit against each Davis, Miller and Frick seeking judgment for wage taxes allegedly due and unpaid. A Philadelphia deputy sheriff made the following holographic return of services on each complaint:

Left on desk trying to dodge Service w/Supervisor.

Each of the defendants filed preliminary objections challenging the effectiveness of service and seeking that it be set aside. Each of the matters came before a different judge of the Court of Common Pleas of Philadelphia. In the cases of Miller and Frick, their preliminary objections were sustained; in Davis's case the preliminary objections were dismissed. The City has filed appeals in the matter of Miller and Frick, and Davis has appealed in his matter. We consolidated the appeals for argument and disposition.

The sole issue is whether the sheriff's return describes service which subjected the defendants to the jurisdiction of the court below. We believe that it does not and will affirm the actions of the court with

[ 30 Pa. Commw. Page 36]

    respect to Miller and Frick and reverse with respect to Davis.

Pa. R.C.P. No. 1009(b)(2)(iii) permits service on an individual defendant "by handing a copy 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 of Pennsylvania has construed this subdivision of its rule as providing for service at the defendant's office or place of business but as not providing for service at the defendant's place of employment. The case of Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 211 A.2d 185 (1966), is controlling. There the sheriff, seeking to serve a complaint on one Mallinedo, a medical assistant of the Valley Forge Medical Center, went to the hospital and left a copy of the complaint with another employee whom he described in his return as "the person for the time being in charge of the place of employment." Mallinedo never received notice of the institution of the action and judgment was entered against him. The Court of Common Pleas of Montgomery County struck the judgment and the Supreme Court of Pennsylvania affirmed, Mr. Justice (now Chief Justice) Eagen writing:

The validity of the service is governed by the requirements of the Pennsylvania Rules of Civil Procedure. Rule 1009(b) 2(iii) provides that service of a summons or a complaint may be effected on an individual defendant by handing a copy thereof ' at any office or usual place of business of the defendant to his agent thereof.' (Emphasis added.) It thus permits substituted service only at the 'office' or 'place of business' of the ...


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