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MARY M. FOX AND HARRY G. FOX v. MATTHEW THOMPSON (08/15/88)

filed: August 15, 1988.

MARY M. FOX AND HARRY G. FOX, H/W, APPELLANTS,
v.
MATTHEW THOMPSON, APPELLEE



Appeal from the Order entered July 29, 1987 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1578 October Term 1985.

COUNSEL

David L. Rohde, Philadelphia, for appellants.

James B. Corrigan, Philadelphia, for appellee.

Olszewski, Kelly and Hoffman, JJ.

Author: Kelly

[ 377 Pa. Super. Page 40]

In the instant appeal, the appellant/plaintiffs, Mary and Harry Fox, appeal an August 4, 1987 order of the Philadelphia County Court of Common Pleas, granting appellee/defendant's motion to strike the complaint for failure to make service upon the defendant. The sole reason given in the defendant's motion to strike was that the plaintiffs never served their complaint on the defendant, as required by Pa.R.C.P. Rule 401, and therefore, defendant was denied his right to proper notice. We find that the trial court abused its discretion in granting defendant's motion to strike the complaint. Accordingly, we reverse the decision of the trial court.

On October 15, 1985, the appellants/plaintiffs instituted this action against the appellee/defendant, Matthew Thompson, by means of a writ of summons, for injuries allegedly sustained to appellant, Mary M. Fox, arising out of an automobile accident which occurred in Philadelphia on October 15, 1983. The record shows that the service instructions and fee were submitted when the writ was filed.

[ 377 Pa. Super. Page 41]

Deputized service of the writ was attempted at the address for appellee supplied on the police report, however the sheriff noted on the return of service that no such address existed. On January 2, 1986, an entry of appearance and rule to file complaint were filed on behalf of appellee, by his attorney. In response, the appellants filed a timely complaint on January 21, 1986, and the record indicates that this complaint was served on appellee/defendant's counsel.

On May 7, 1987, the appellee/defendant filed a motion to strike the complaint for failure to make service upon the defendant, relying mainly on Pa.R.C.P. 401(a). The appellants filed a timely answer to this motion, alleging that the sheriff was unable to make service because the address did not exist and further that the appellee/defendant had concealed his address in a deliberate attempt to avoid service. In addition, appellants argued that under Pa.R.C.P. 401(b) the appellants were allowed to reissue the expired complaint at any time before making service; appellants also noted that they were seeking an order for substituted service.

On August 4, 1987, the trial court filed an order granting appellee's motion striking the complaint. The sole reason offered by the trial court for granting the motion was that service was not properly made in accordance with Pa.R.C.P. 402. Appellants filed a timely notice of appeal from this order on August 31, 1987. On December 15, 1987, the lower court filed its opinion in support of the order of August 4, 1987. We note that neither the order nor the opinion addresses any of the issues raised by appellants in their answer to the appellee's motion to strike.

The appellee sought dismissal of the complaint by raising preliminary objections pursuant to Pa.R.C.P. 1017(b)(2) which provides in pertinent part that either party may file a motion to strike off a pleading because of its lack of conformity to law or rule of court. Pa.R.C.P. 1017(b)(2). The sole reason given in the appellee's motion to strike was that the appellants never served their complaint on appellee, as required ...


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