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