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ROBERT E. JOHNSON v. ATLAS VAN LINES (01/11/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 11, 1980.

ROBERT E. JOHNSON
v.
ATLAS VAN LINES, HILL & PERRY, INC. AND PENNSYLVANIA VAN & STORAGE CO. APPEAL OF ATLAS VAN LINES

No. 1430 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Chester County, Civil Action, Law, Misc. No. 69

COUNSEL

Charles Jay Bogdanoff, Philadelphia, for appellant.

Thomas J. Lacey, Bryn Mawr, for Robert E. Johnson, appellee.

Benjamin E. Zuckerman, Norristown, for Hill & Perry, Inc., appellee.

Cercone, President Judge, and Hester and Hoffman, JJ. Hester, J., concurs in the result.

Author: Hoffman

[ 274 Pa. Super. Page 254]

Appellant contends, inter alia, that the lower court should have opened the default judgment against it because it was never subject to the in personam jurisdiction of the district justice who entered the judgment.*fn1 We agree and, accordingly, reverse the order of the lower court dismissing appellant's petition to set aside service and open judgment.

The present controversy arises out of an action brought against appellant and two other defendants to recover damages which allegedly occurred to appellee's furniture while the various defendants were transporting and/or storing it.*fn2 Appellee instituted suit on September 20, 1976, by filing a complaint with a district justice in Chester County. Neither appellant nor its co-defendants filed answers to the complaint, and on November 22, 1976, the district justice entered default judgment in the amount of $1521.79 against all three defendants. On March 14, 1977, appellant filed a petition to set aside service and open judgment in which it alleged that it first received notice of the instant suit on November 26, 1976, via a postcard announcing that default judgment had been entered against it.*fn3 The lower court dismissed the

[ 274 Pa. Super. Page 255]

    petition, citing appellant's failure to explain its delay of three-and-one-half months in filing its petition once it had learned of the judgment and appellant's failure to allege a meritorious defense to plaintiff's complaint.*fn4 This appeal followed.

Appellee attempted in this action to obtain in personam jurisdiction over appellant, an Indiana corporation, pursuant to the Act of November 15, 1972, P.L. 1063, No. 271, § 8301 et seq.*fn5 Section 8307 of that Act provided, inter alia, that in order to effect service of process, the officer to whom process was directed (in this case, the district justice) was required to send a copy of process to the defendant by registered or certified mail.*fn6 In an uncontradicted affidavit presented to the lower court in support of its petition to open, general counsel for appellant stated that the district

[ 274 Pa. Super. Page 256]

    justice had admitted to him that he did not mail a copy of process to appellant, as required by § 8307.*fn7 Thus, appellant was never properly served in this action. There are no indications in the record that appellant voluntarily submitted to the jurisdiction of the district justice, or even was aware of the proceedings against it until it received notice of the default judgment.

The lower court correctly noted that, ordinarily, three factors must coalesce before a default judgment can be opened: "(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense." McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973). However, in Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa. Super. 462, 416 A.2d 549 (1979), this Court stated that

[where] . . . a defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him, we believe that a court must determine whether such assertion is true before considering any other factors. If valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him. Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 422 Pa. 124, 127, 221 A.2d 185, 187 (1966); Neff v. Tribune Printing Co., 421 Pa. 122, 124, 218 A.2d 756, 757 (1966); In re Galli's Estate, 340 Pa. 561, 568-71, 17 A.2d 899, 902-03 (1941); Taylor v. Humble Oil & Refining Co., 221 Pa. Super. 394, 398, 292 A.2d 481, 483 (1972).

Id., 272 Pa. Super. at 466, 416 A.2d at 551. Accordingly, in Liquid Carbonic, our Court held that the lower court had erred in failing to open a default judgment and allow the

[ 274 Pa. Super. Page 257]

    appellant to file an answer to the complaint where it appeared that the appellant had never been served.

Our reasoning in Liquid Carbonic controls the present case. Appellant's allegation of lack of service is uncontradicted by appellee and therefore must be accepted as true. Because valid service was not made and appellant was wholly without notice of the proceedings against it, the district justice was without power to enter a default judgment herein. Accordingly, we must reverse the order of the lower court denying appellant's petition to set aside service and open judgment, and remand to give appellant the opportunity to file an answer to appellee's complaint. See Taylor v. Humble Oil & Refining Co., 221 Pa. Super. 394, 292 A.2d 481 (1972).

Order reversed and case remanded for proceedings consistent with this opinion.


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