No. 23 Pittsburgh, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Clearfield County at No. 78-3083-CD.
Jackson Casey, Sykesville, for appellants.
Joseph Colavecchi, in pro. per.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 311 Pa. Super. Page 60]
In October, 1973, the appellee, Joseph Colavecchi, purchased a one-half interest in certain real estate located in Clearfield County, Pennsylvania, at a tax sale. Unfortunately, for the parties involved in this appeal, the same real estate was also conveyed by the Clearfield County Commissioners to the appellants herein, Wesley E. Donahue and Lisa A. Donahue.
In December, 1978, the appellee commenced an action to quiet title against the appellants, and others. The appellee proceeded on two fronts in his action to quiet title. He sought to have the sheriff serve those of the defendants whose existence and whereabouts were known. He also petitioned the court for service by publication upon those defendants whose whereabouts were unknown or upon parties in interest whose identity was not known. On December 4, 1978, the court below pursuant to Pa.R.C.P. 1064 entered an order directing service of the complaint by publication in the Clearfield Progress newspaper upon parties in interest in the property "who are presently not of record and cannot be determined after due investigation of the available records, . . . so that this will be notice at large to any defendants of whom the plaintiff may not have knowledge." The order further provided that if the complaint was not pleaded to within twenty days after the publication of the notice that judgment may be entered against such defendants.
[ 311 Pa. Super. Page 61]
Appellee knew of the existence and whereabouts of the appellants and they were listed in the complaint as: "Wesley E. Donahue and Lisa A. Donahue, his wife, of 239 S. Highland Street, DuBois, Pennsylvania, 15801." A copy of the complaint was delivered to the sheriff's office to be personally served on the appellants but apparently the sheriff's office was unable to do so. Before the sheriff's return was filed concerning the appellants, the court below on January 2, 1979, by President Judge Reilly, entered an order in the action confirming title in the appellee and stating that appellee: "has an indefeasible title to the property in question." On January 16, 1979 the "sheriff's return" was filed which stated inter alia that "after diligent search in my bailiwick I return the within action to quiet title 'NOT FOUND', as to Wesley E. and Lisa A. Donahue, defendants."
On February 6, 1979 the appellee filed a praecipe for judgment with the prothonotary and in March, 1979, the appellants learned that judgment had been entered against them. On April 28, 1980, after many attempts to obtain counsel appellants filed their petition to open or vacate judgment which was denied by the court below.
Appellants contend that the judgment against them was void as they were not personally served with a copy of the complaint. Appellants argue in their brief that there should have been personal service made upon them as "during the pendency of this action defendant Wesley E. Donahue was listed in the DuBois telephone directory of September, 1978, and was listed in the Clearfield County voter's registration roles." We agree that there was not proper service on appellants. Pa.R.C.P. 1064(c) dealing with service of process in an action to quiet title states:
(c) If a defendant is dead or his identity or whereabouts is unknown, and an affidavit to that effect is filed, the plaintiff may serve the defendant by publication in such manner as the ...