No. 818 Pittsburgh, 1980, No. 819 Pittsburgh, 1980, Appeal from the Order entered July 8, 1980, in the Court of Common Pleas of Allegheny County, Civil Division at Nos. GD76-07735 and GD76-01981.
Joseph M. Zoffer, Pittsburgh, for appellants.
Jon G. Hogue, Pittsburgh, for appellees.
Brosky, DiSalle and Shertz, JJ. Shertz, J., files a dissenting opinion. Decision was rendered prior to DiSalle and Shertz, JJ., leaving the bench of the Superior Court.
[ 294 Pa. Super. Page 308]
On January 28, 1976, appellants brought a class action suit against appellees-employment agencies with whom appellants had contracted for the purpose of finding employment. This appeal arises from a lower court order dismissing the complaint as to the defendant Snelling and Snelling, Inc. (hereinafter Snelling), based upon its conclusion that Snelling had not been served with the complaint.
On February 3, 1976, service of the complaint was made upon a person in charge of the office of a Snelling licensee in Monroeville, Pennsylvania. Appellants contend that this constituted proper service on Snelling. Appellants argue that the licensee was an agent of Snelling with actual authority to accept service on Snelling's behalf. As authority for this contention, appellants cite Pa.R.C.P. 2180(a)(2), which authorizes service of process upon a corporation by having the sheriff hand a certified copy of the complaint "to an agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity . . . ." Alternatively, appellants contend that the licensee was vested with apparent authority to act as Snelling's agent. Snelling denies any agency with the Monroeville licensee.
The lower court found that Snelling first received notice of this suit on January 19, 1979, when the attorney who initially had entered his appearance for all of the defendants mailed to Snelling a copy of a Petition to Withdraw Appearance as its counsel because of its failure to participate in the suit or to remit its share of legal fees. On May 25, 1979, Snelling, through other counsel, filed a Special Petition to Intervene, which contained Preliminary Objections raising the issue of improper service. Following discovery and a hearing, the lower court sustained Snelling's Preliminary Objections.
[ 294 Pa. Super. Page 309]
It is clear from a reading of the license contract that the licensee was without actual authority to act as Snelling's agent. Paragraph 9 of the contract states:
This agreement is one of license only and Licensee is not hereunder authorized to act for or on behalf of SNELLING in any matter whatsoever . . . . In granting this license SNELLING does not authorize or empower Licensee to use SNELLING'S name in any capacity other than is provided herein, nor to sign SNELLING'S name to any contracts, documents, bills, notes, checks, drafts, leases, bonds, mortgages, bills of sale or any other instrument in writing, or to hold itself out as a general or special agent, officer, director or partner of SNELLING. Licensee shall represent that it is doing business as a licensee under the trade name and style of "Snelling and Snelling" or as a licensed member of the SNELLING System, . . . .
The argument that the licensee had apparent authority to receive service on Snelling's behalf must also be rejected. Apparent authority exists when the principal has led a third party into believing that the licensee was the principal's agent. Apex Financial Corp. v. Decker, 245 Pa. Super. 439, 369 A.2d 483 (1976). Restatement (Second) of Agency § 8 (1958). This did not occur in the instant case. Paragraph 21 of the licensee's answer to appellants' complaint states, in pertinent part:
It is admitted that Snelling and Snelling is an employment agency engaged in the business specifically defined in paragraph 2 of the complaint, but it is denied that this defendant has offices at 607 Washington Road, Pittsburgh, Allegheny County, Pennsylvania 15228. On the contrary, the franchise Snelling and Snelling Agency specifically dealing with plaintiff Elva M. Novelli was licensed as Pittsburgh Personnel Services t/a Snelling and Snelling, located at 7651 Oliver Plaza, Pittsburgh, Pennsylvania 15222, and that all matters relating to this plaintiff were confined to this separate franchise entity, and legal liability, if any, would rest in said licensee only. (Emphasis added.)
[ 294 Pa. Super. Page 310]
Appellants, therefore, had notice that service had been made upon a licensee of Snelling, and not on Snelling.*fn1 Cf. Delaware Valley Surgical Supply Co. v. Geriatric and Medical Centers, 450 Pa. 239, 299 A.2d 237 (1973) (service upon the parent corporation held not to constitute service upon wholly owned subsidiary corporations); Myers v. Mooney Aircraft, Inc., 429 Pa. 177, 240 A.2d 505 (1967) (service upon the distributor-independent contractee held not to constitute service upon the manufacturer-contractor); Botwinick v. Credit Exchange, 419 Pa. 65, 213 A.2d 349 (1965) (service upon a wholly owned subsidiary corporation held not to constitute service upon the parent corporation).*fn2
Appellants also argue that Snelling has waived the defense of improper service by failing to raise the same in the original Preliminary Objections which were filed when their suit was first instituted. This is obviously without merit. A party cannot be held to pleading requirements when it has not received notice of the filing of the suit in the first instance.
In considering whether the trial court properly sustained preliminary objections raising a question of jurisdiction, our scope of review is limited to whether the jurisdictional issue was properly decided. Wechsler v. Newman, 256 Pa. Super.Ct. 81, 87, 389 A.2d 611, 614 (1978). Because I believe
[ 294 Pa. Super. Page 311]
the court below had jurisdiction over appellee, Snelling and Snelling, Inc. ("Snelling"), I would hold that the trial court erred in sustaining Snelling's preliminary objections and dismissing it as a party defendant. Accordingly, I respectfully dissent from the conclusion reached by the majority.
Unquestionably, Snelling was entitled to notice of the action against it. Notice is a basic requirement of due process. Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 452, 370 A.2d 685, 692 (1977). Moreover, to be adequate, notice must be
reasonably calculated . . . to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such a nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance. But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met the constitutional requirements are satisfied.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-15, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). In the instant case, the method by which appellants effected service of process upon Snelling comported both with the requirements of ...