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MILTON RUBIN v. ALLAN NOWAK (11/09/87)

filed: November 9, 1987.

MILTON RUBIN
v.
ALLAN NOWAK, APPELLANT



Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4567 May 1986.

COUNSEL

Leonard Schaeffer, Philadelphia, for appellant.

Niels Korup, Philadelphia, for appellee.

Rowley, Kelly and Watkins, JJ.

Author: Rowley

[ 367 Pa. Super. Page 630]

This is an appeal from an order denying appellant's petition to open a default judgment. Appellant contends he was never served with the Complaint, despite the existence of record of the sheriff's return of service indicating that the Complaint was served on the "Manager/Clerk" of the place of lodging in which appellant resides.*fn1 Appellant argues that the court abused its discretion by not accepting: 1) his averment of lack of service as a reasonable explanation

[ 367 Pa. Super. Page 631]

    for failure to answer the Complaint, or at least, as proof of a "disputed issue of fact" under Pa.R.C.P. 209 for which the trial court should have ordered discovery; and 2) facts alleged in his petition as true where appellee failed to file an answer conforming to Pa.R.C.P. 208.*fn2 Although appellant does not specifically raise the issue of jurisdiction, our disposition of the matter rests entirely on jurisdictional grounds.*fn3 We vacate and remand.

The trial court denied appellant's petition to open the default judgment on the basis that the sheriff's return of service, which is complete on its face, was conclusive and immune from extrinsic attack as to facts of which the sheriff presumptively had personal knowledge. Hersch v. Clapper, 232 Pa. Super. 550, 335 A.2d 738 (1975). However, we find that the record discloses the existence of an issue relative to a material fact contained in the return of which the sheriff's deputy did not presumptively have personal knowledge. This issue has a direct bearing on whether or not valid service of process was achieved, and in turn dictates whether the trial court had personal jurisdiction over the appellant to order that a default judgment be entered against him. Because the material fact was not one of which the sheriff's deputy presumptively would have knowledge, the trial court erred in barring appellant's challenge to the return of service.

[ 367 Pa. Super. Page 632]

Our decision in this case is governed by the prior decision of this Court in Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa. Super. 462, 416 A.2d 549 (1979). In that case, Liquid Carbonic brought a breach of contract action against Cooper & Reese. The sheriff's return showed that service was made at defendant's place of business. The deputy did not specify on the return the person whom he served, but he put a check mark in a box on the return indicating that he had handed the complaint to an "agent or person for the time being in charge of defendant's office or usual place of business."*fn4 Id., 272 Pa. Superior Ct. at 465, 416 A.2d at 550. In spite of the sheriff's return, the defendant claimed it had no notice of the suit until after judgment was entered.

Judge Hoffman, writing for the panel in Liquid Carbonic, noted the general rule that "a sheriff's return is conclusive and immune from attack as to facts stated therein of which the sheriff presumptively has personal knowledge." Id., 272 Pa. Superior Ct. at 467, 416 A.2d at 551. However, he held that under the facts as presented, "the representation that service was made upon an agent or person for the time being in charge of appellant's place of business was not a matter within the personal knowledge of the deputy sheriff who executed the return." Id. In so holding, Judge Hoffman followed Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965). Justice Jones, writing for the majority in Hollinger, stated:

The rule of conclusiveness of a return of service of process is based upon the presumption that a sheriff, acting in the course of his official duties, acts with propriety and, therefore, when the sheriff in the course of such official duties makes a statement, by way of an official return, such statement is given conclusive effect. However, both logic and common sense restrict the conclusive nature of a sheriff's return only to facts ...


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