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JOAN D. JAMES AND JULIAN JAMES v. HORACE REESE (10/06/77)

decided: October 6, 1977.

JOAN D. JAMES AND JULIAN JAMES
v.
HORACE REESE, APPELLANT



No. 674 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Law, Motor Vehicle Case, September Term, 1974, No. 1769, dated November 29, 1976.

COUNSEL

Richard J. Harcar, Philadelphia, for appellant.

No appearance entered nor brief submitted for appellees.

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

Author: Hoffman

[ 250 Pa. Super. Page 3]

Appellant contends that the lower court should have stricken or opened the default judgment entered against him because service was improper. We find no defect on the fact of the record and, therefore, affirm the lower court's refusal to grant the petition to strike. Moreover, we find no abuse of discretion in the lower court's refusal to grant the petition to open because appellant failed to file a prompt petition to open judgment.

On September 11, 1974, appellees, Joan and Julian James, filed a complaint in trespass against appellant alleging that he negligently operated his automobile and, thereby, caused severe bodily injury to Mrs. James and property damage to her car. On or about October 10, 1974, the sheriff notified appellee that appellant could not be found at 1646 Wynsam Street, Philadelphia, the address specified in the complaint. On December 11, 1974, appellees reinstated their complaint and served appellant by substituted service upon the Secretary of the Commonwealth and upon appellant by certified mail, return receipt requested, pursuant to Rules 2076-2100, Pa.R.C.P.; 12 P.S. Appendix. On December 14, 1974, the post office returned a receipt for a copy of the complaint signed by Marva Stewart.

On May 5, 1975, appellees sent a certified letter to appellant at the 1646 Wynsam Street address notifying him of their intention to take a default judgment. The post office returned the letter, marked unclaimed, with a stamped notation indicating that the postman left notices on May 7, 12, and 22. On May 30, appellees filed a praecipe for judgment together with an affidavit that they had sent appellant a certified letter of their intention to take judgment by default; the prothonotary entered judgment by default that same day. Appellant did not appear at the arbitration hearing scheduled for September 23, 1975, for the purpose of assessing damages, despite the fact that the arbitration chairman sent a notice to appellant's last known address. On September 24, 1975, the chairman of the Board of Arbitration mailed a copy of the panel's award to the

[ 250 Pa. Super. Page 4]

    appellant: "Award in favor of plaintiff Julian James against defendant in the amount of $517.25. Award in favor of Plaintiff Joan James against defendant in the amount of $2,500."

On June 8, 1976, the Pennsylvania Department of Transportation, Bureau of Traffic Safety, mailed appellant a notice that his driving privileges were being suspended for failure to satisfy the judgment entered in the foregoing matter. Appellant received the revocation notice at his home address, 1646 Wynsam Street, Philadelphia. On October 1, 1976, appellant filed a petition to "Strike Off or Open Judgment", which alleged that he has continuously resided at 1646 Wynsam Street during the pendency of this action, that this fact was known to the appellees, and that the sheriff made an insufficient effort to discover appellant's whereabouts. Appellant argued that appellees' resort to substituted service was unwarranted because he never attempted to conceal himself. See, e. g., Gonzales v. Polis, 238 Pa. Super. 362, 357 A.2d 580 (1976). He contended, therefore, that the court was without personal jurisdiction and that, consequently, the judgment was void.

On December 1, 1976, appellees answered the petition alleging that appellant had concealed his whereabouts. Appellees attached a copy of the sheriff's notice which indicated appellant was not served at the address contained in the complaint because he was "unknown at [the] address". In a memorandum of law appended to their answer, appellees argued that appellant's petition should be denied as untimely. No ...


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