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MYROSLOW PODOLAK v. ARTISAN'S VALVE REPAIR (02/08/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: February 8, 1983.

MYROSLOW PODOLAK, APPELLANT,
v.
ARTISAN'S VALVE REPAIR, INC.

Nos. 2986 Philadelphia 1981 and 819 Philadelphia, 1982, Appeal from the Orders of the Court of Common Pleas, Civil Division, of Delaware County, No. 80-13050.

COUNSEL

Edwin P. Smith, Philadelphia, for appellant.

Eugene Arthur Steger, Jr., Kennett Square, for appellee.

Brosky, Cirillo and Lipez, JJ.

Author: Lipez

[ 323 Pa. Super. Page 233]

This is an action in equity by a stockholder against the directors of a corporation, alleging waste by the Board of Directors and seeking appointment of a receiver pendente lite and involuntary dissolution of the corporation. Myroslow Podolak, plaintiff below, now appeals from the lower court's order striking a default judgment entered in his favor against defendant Artisan's Valve Repair, Inc. We vacate the order of the lower court.

The lower court's order was based upon its conclusion that service of process on defendant, a Delaware corporation, was defective. Service was made in purported compliance with Pennsylvania Rule of Civil Procedure 2180(a)(2), by handing a certified copy of the complaint to a person in charge of defendant's office or usual place of business.

[ 323 Pa. Super. Page 234]

The sheriff's return indicated that the complaint was handed to an "adult male, refused to give name, the person at the time being in charge personally at their place of business, 2222 West 9th Street, Chester, Pa." The lower court held that service upon an unknown person in the office or place of business cannot effect valid service upon a foreign corporation, and therefore struck the default judgment. This was error.

"It is axiomatic that a motion to strike will not be granted unless a fatal defect in the judgment appears on the face of the record . . . . If the record is self-sustaining, the judgment cannot be stricken." Advance Building Services Co. v. F & M Schaefer Brewing Co., 252 Pa. Super. 579, 582, 384 A.2d 931, 932 (1978) (citations omitted). Here, the lower court apparently concluded that the indication in the sheriff's return that service had been made upon a person who refused to give his name was such a fatal defect.*fn1 We must disagree, for decisions of this court and of our supreme court make it clear that service upon an unidentified person is not necessarily defective service. See Pincus v. Mutual Assurance Co., 457 Pa. 94, 321 A.2d 906 (1974) (service upon a corporation and two corporate trustees as individuals upheld where process was handed to a manager at the corporation's offices who refused to give his name); American Vending Co. v. Brewington, 289 Pa. Super. 25, 432 A.2d 1032 (1981) (service upon an individual

[ 323 Pa. Super. Page 235]

    upheld where process was handed to an adult female in charge of defendant's residence who refused to give her name). Since in light of these cases, service of process cannot be found defective based on the face of the record, the default judgment entered against defendant could not properly be stricken.*fn2

Defendant's motion, on which this court's order to strike was entered, asked that the default judgment be stricken or, in the alternative, opened. We have determined that the motion to strike should have been denied. Disposition of the motion to open, however, requires consideration of facts not yet developed in proceedings in the lower court. Accordingly, we remand for disposition of the motion to open.

Orders vacated and case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.


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