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JOSEPH ROMEO AND ANGELA ROMEO v. THERESA LOOKS AND SHERRY ROSE. APPEAL THERESA LOOKS (12/29/87)

filed: December 29, 1987.

JOSEPH ROMEO AND ANGELA ROMEO
v.
THERESA LOOKS AND SHERRY ROSE. APPEAL OF THERESA LOOKS



Appeal from the Order of the Court of Common Pleas, Cumberland County, Civil Division, at No. 822 Civil 1982.

COUNSEL

Maria M. Cook, York, for appellant.

Timothy A. Shollenberger, Harrisburg, for appellees.

Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Johnson, JJ. Wieand, J., files a dissenting opinion in which McEwen, J., joins.

Author: Brosky

[ 369 Pa. Super. Page 612]

This is an appeal from an order denying a Petition to open a default judgment.

Appellant contends that the lower court erred in entering the Order refusing to open the default judgment entered against her and challenges the trial court's jurisdiction on the ground that court-ordered substituted service was invalid. In the alternative, she claims that even if the court-ordered substituted service was valid so as to give the court personal jurisdiction over her, her lack of receipt of actual notice of the suit constitutes a reasonable excuse for her failure to answer the complaint, and the trial court abused its discretion in failing to open the default judgment entered against her. We affirm.

The procedural path which this matter has traveled up to the entry of the Order denying appellant's Petition to open is as follows:

On March 10, 1982, a writ of summons was issued against appellant and Sherry Rose.*fn1 On March 16, 1982, the Sheriff of York County, Pennsylvania, pursuant to deputization by the Sheriff of Cumberland County (where suit was instituted) served the summons upon appellant's mother, Mrs. Looks, at 625-A Colony Drive, York, Pennsylvania. On August 9, 1982, a Complaint was filed against appellant and Ms. Rose.*fn2 The Sheriff of York County, by Affidavit, indicated his inability to locate appellant in York County. On October 13, 1982, the Complaint was reinstated against appellant with a directive to serve her at R.D. # 1, Port Treverton, Pennsylvania. However, the Sheriff of Snyder County, Pennsylvania, who was deputized to serve appellant

[ 369 Pa. Super. Page 613]

    at that address, filed an Affidavit of Service indicating that appellant could not be found there. He further noted on the return of service that appellant "is living with her mother in York, Pennsylvania." The record, however, does not inform us of the source from which (or whom) the Snyder County Sheriff obtained this latter piece of information.

On November 29, 1983, an order was entered pursuant to 42 Pa.C.S.A. § 5323(a)(5) directing service of process upon appellant by serving

(a) Secretary of the Commonwealth of Pennsylvania.

(b) Department of Motor Vehicles;

(c) Charlotte Looks, Defendant Teresa [sic] Looks' mother;

(d) Federal Kemper, Defendant Teresa [sic] Looks' insurance company, and more specifically, J.T. Tomalty, the insurance adjustor handling this claim on behalf of Defendant Teresa [sic] Looks;

(e) G. Thomas Miller, Counsel for Defendant Teresa [sic] Looks in the above-captioned action;

     and further, by making publication in a newspaper with general circulation serving the area of York, Pennsylvania, and East Rutherford, New Jersey. (Order of November 29, 1983).

In support of their Motion to Direct Manner of Service pursuant to 42 Pa.C.S.A. § 5323(a)(5), appellees asserted that they had examined telephone directories in York and surrounding counties for appellant's name and address, had sent, by certified letter dated October 4, 1982, a copy of the Complaint to the Meadowlands Racetrack in East Rutherford, New Jersey but to no avail,*fn3 and had contacted the

[ 369 Pa. Super. Page 614]

Postmaster of York, Pennsylvania, for information regarding appellant's current address. Finally, by a letter addressed to Federal Kemper Insurance Company, appellant's automobile insurer, appellees' counsel requested that entity to reveal the whereabouts of appellant.*fn4

This Motion was subsequently amended on January 2, 1984, to delete the name of G. Thomas Miller, Esquire, because of his noninvolvement with the instant suit insofar as representation of appellant was concerned.*fn5

Appellant finally contacted Federal Kemper's counsel through a series of complicated channels involving Mr. Marietta, who succeeded in making contact with appellant's mother at the latter's new Florida residence. Mrs. Looks, in turn, contacted some unknown persons in the horse racing business who were able to reach appellant. Appellant was informed by these unidentified persons to communicate with Mrs. Looks. When appellant did communicate with Mrs. Looks, the latter advised her to call Mr. Marietta. Appellant complied and requested Mr. Marietta to have counsel call her at her telephone number in Florida. Counsel,

[ 369 Pa. Super. Page 615]

    according to Mr. Marietta, did call appellant (Looks' Deposition, 17-18; Deposition of William R. Marietta, 16-20). Counsel then filed the subject Petition to open on behalf of appellant which was subsequently denied. This appeal followed.

I.

Our threshold inquiry is whether the court-ordered substituted service of process was valid, thus resulting in the trial court's obtaining personal jurisdiction over the appellant. If service is found to have been valid, then it is appropriate to inquire as to whether the default judgment should be opened, i.e. whether appellant has a reasonable excuse for failing to respond to the complaint. See Rubin v. Nowak, 367 Pa. Super. 629, 533 A.2d 451 (1987) (if trial court determines service valid, it then has personal jurisdiction over defendant).

We determine, first, whether the trial court obtained personal jurisdiction over the appellant. 42 Pa.C.S.A. § 5323 provides in relevant part:

§ 5323. Service of process on persons outside this Commonwealth.

(a) Manner of service. -- When the law of this Commonwealth authorizes service of process outside this Commonwealth, the service, when reasonably calculated to give actual notice may be made:

(5) As directed by a court.

(Emphasis supplied).

The phrase "reasonably calculated" is undefined in the Judicial Code, nor have we uncovered any appellate decision in this Commonwealth construing this term in light of § 5323. Hence, it is necessary to resort to defining this phrase in terms of its common, ordinary and approved usage. Barasch v. Pa. Pub. Utl. Comm., 507 Pa. 430, 490 A.2d 806 (1985).

Webster's New Collegiate Dictionary (1980) defines the word "reasonably" as "in a reasonable manner . . ."; "to a

[ 369 Pa. Super. Page 616]

    fairly sufficient extent . . . ." Id. at 1892. This same source defines "reasonable" as "not conflicting with reason: not absurd: not ridiculous . . . being or remaining within the bounds of reason: not extreme: not excessive . . . rational . . . sensible . . . ." Id. Webster's also provides the following definition for "calculated." "Likely -- used with complementary infinitive . . . ." Id. at 154.

Due process, reduced to its most elemental component, requires notice. The adequacy of this notice, as applied to substituted service, depends upon whether it is reasonably calculated to give the party actual notice of pending litigation. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Noetzel v. Glasgow, Inc., 338 Pa. Super. 458, 487 A.2d 1372 (1985) (Wieand, J.); Stateside Machinery Co., Ltd. v. Alperin, 591 F.2d 234 (3d. Cir.1979); Kittanning Coal Co. v. International Mining Co., 551 F.Supp. 834 (W.D.Pa.1982); McCully-Smith Assoc., Inc. v. Armour & Co., 358 F.Supp. 331 (W.D.Pa.1973).

While Noetzel did not implicate § 5323(a)(5), it adopted the Third Circuit's due process analysis of the "actual notice" language as it is used in the statute.

As long as the method of service is reasonably certain to notify a person, the fact that the person nevertheless fails to receive process does not invalidate the service on due process grounds.

Noetzel, 338 Pa. Super. at 469, 487 A.2d at 1377-78, citing Stateside Machinery, supra. (emphasis supplied). From this, it logically follows that service " reasonably calculated to give actual notice" is that which is reasonably certain to notify a defendant of litigation pending against him. See Noetzel, supra. See also Kittanning Coal, supra. Hence, if we find that the methods of substituted service here employed were reasonably calculated to give appellant actual notice of the instant suit, we can then be satisfied that process was reasonably certain to reach her. This, in ...


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