Lead Opinion
This is аn 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.
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 [siс] 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,
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.
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. Coun
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,
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.,
Webster’s New Collegiate Dictionary (1980) defines the word “reasonably” as “in a reasonable manner ... ”; “to a
Due process, reduced to its most elemental component, requires notice. The adequacy of this notice, as applied to substitutеd service, depends upon whether it is reasonably calculated to give the party actual notice of pending litigation. Milliken v. Meyer,
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,
The Note accompanying Pa.R.C.P. 2079, which Rule was in effect at the time of appellees’ application to the trial court for substituted service pursuant to § 5323(a)(5), sets forth examples of good faith efforts to locate a defendant through regular means.
An illustration of good faith effort to locate the whereabouts of the defendant includes (1) inquiries of postal authorities, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.
See also Kittanning Coal, supra.
Appellant urges upon us that
none of the methods ordered by the Court below had a likely chance of success. Defendant Looks was not a Pennsylvania resident, and did not carry a valid Pennsylvania drivers’ license, so that service on the Sеcretary of the Commonwealth or the Department of Motor Vehicles would be to no avail. Neither Defendant Looks’ mother, nor Federal Kemper agent J.T. Tomalty knew of Defendant Looks’ whereabouts, so that service on either of them had little chance of reaching Defendant Looks. Publication of service in Pennsylvania and New Jersey newspapers had no chance of reaching Defendant Looks as she was not residing in either state. In fact, Defendant Looks was never notified of or served with the Complaint through the use of any of the ordered methods.
Appellant’s Brief, p. 18.
We are unpersuaded by this argument. To conclude otherwise would be tantamount to engaging in a post hoc
The record before us discloses that appellees have satisfied the above suggested preconditions to requesting and obtaining court-ordered service pursuant to § 5323(a)(5). See appellees’ Motion to Direct Manner of Service dated November 29, 1983. For example, when appellees failed to obtain a return receipt evidencing that appellant had received a copy of the Complaint sent to her certified mail at the Meadowlands Racetrack in East Rutherford, New Jersey, when the complaint had, instead, been returned to appellees’ counsel with the notatiоn “unclaimed”, appellees then caused the trial court, and properly so, to order publication in a newspaper of general circulation in East Rutherford, New Jersey.
Similarly, when the Sheriffs of York and Snyder Counties were unable to serve appellant either in York or Port Treverton, Pennsylvania, appellees requested the trial court to order publication of their law suit in a newspaper of general circulation in York. Thus, we cannot say that the service upon appellant via newspaper publication in those two locales was not reasonably calculated to provide her with actual notice of the instant suit. See Kittanning Coal Co., supra. Based upon the information appellees had in their possession at the time they applied to the trial court for an order pursuant to § 5323(a)(5), either York or Port Treverton, Pennsylvania, was the place where appellant maintained her residence or had a close relative who maintained a residence there. The East Rutherford, New Jersey location was her place or former place of employ
Appellees’ Motion for court-ordered service also requested service on the Commonwealth of Pennsylvania Department of Motor Vehicles. Since appellant owned a motor vehicle while she was in Pennsylvania and the mishap occurred with her vehicle in this Commonwealth, it was rational to assume that the Department had a current address for her and would notify her of the pending suit— again, a method of service which appellees, based upon their knowledge of appellant’s habits and whereabouts at that time, were not incorrect in assuming was reasonably calculated to give appellant actual notice.
Service upon Federal Kemper, as appellant’s motor vehicle insurer, was also proper, as it was reasonably expected that notice of the action would be transmitted to appellant. See Snyder v. Marion, 19 Pa.D & C 3d 352 (Adams Co. 1981). Indeed, Federal Kemper did make telephone contact with appellant who was residing in Florida. The fact that Federal Kemper only succeeded after a default judgment had been entered against appellant is of no moment, since service upon Kemper was reasonably calculated and did operate to provide appellant with the statutorily and constitutionally required notice.
Based upon the foregoing and the record before us, we are satisfied that appellees demonstrated the prerequisite good faith diligence in attempting to serve appellant and that service upon her pursuant to § 5323(a)(5) was reasonably calculated to provide her with the requisite actual noticе. We conclude, therefore, that the methods of service effected upon her were not rendered invalid merely because they failed to give her actual notice. Therefore, we hold that the trial court obtained personal jurisdiction over appellant by virtue of the service effected pursuant to the trial court’s order of November 29, 1983.
Having so found the court-ordered substituted service to be valid here, we are still left to consider appellant’s assertion that she did not receive actual notice of the complaint and that the judgment should be opened for that reason. We begin by noting that a Petition to open a default judgment appeals to the court’s equitable powers. It is a matter of judicial discretion which an appellate court will not reverse absent an error of law or a manifest abuse of discretion. Schultz v. Erie Ins. Exch.,
At this juncture, we are quick to point out that this is not a case where the validity of substituted service is successfully attacked by means of a Petition to open a default judgment because a local rule of court relating to substituted service was disregarded. See U.S. Dept, of Housing v. Dickerson,
It is also true that a party may successfully attack in a Petition to open a default judgment lack of knowledge of a lawsuit for reasons other than the impropriety of service when, in fact, service was valid. For example, in Donatucci v. Utterback,
Similarly, in Maurice Goldstein, Inc. v. Margolin,
Finally, in Campbell v. Heilman Homes, Inc.,
Thus, the scenarios delineated in the three above-cited cases are distinguishable from the procedural posture of the instant one. The Donatucci and Margolin courts held that the records in each case were not ripe to support the trial judges’ assessment of defendants’ failure to excuse the delay in not responding to the respective plaintiffs’ complaints because defendants there were not accorded the opportunity to prove their claims of excusable delay by either the taking of depositions or presentation of oral argument on Petition and Answer pursuant to Pa.R.C.P. 209. The denials of the Petitions to open in those cases were reversed to permit further development of the record by utilizing one of the methods set forth in Rule 209. Instantly, appellant’s deposition wаs taken, at which time she was afforded the opportunity to substantiate the allegations of her Petition.
The matter sub judice is also inapposite to the Campbell case since nowhere in the record do we find any indication that appellant was not informed or did not receive notice because of neglect, omission or oversight. Her insurer, Federal Kemper, made every diligent effort possible to locate her. {See, generally, Deposition of William R. Marietta). Mr. Marietta also indicated that Mrs. Looks was
Moreover, in none of those cases was service effectuated pursuant to § 5323(a)(5). Instead, process was served by direct means without the aid of the trial court. However, since court-ordered substituted service implicates, by its very nature, a less direct method of service, process can only be deemed reasonably certain to reach a defendant. This is because service pursuant to § 5323(a) may be effectuated only after a plaintiff has exhibited to the satisfaction of the trial court that the more direct, traditional methods of service have failed. By serving persons (friends, relatives, employers, former employers, co-workers or former co-workers) other than an elusive defendant, a hopeful plaintiff can only reasonably assume that the person whom he is suing will contact that friend, relative, employer or co-worker, or, as in the instant case, the insurance carrier or vice versa.
Appellant admitted being in each locale where substituted service was ordered to be made. But, according to her testimony, she only happened to have moved away from each locale just before service of the Complaint was attempted on her
In American Express Co. v. Burgis,
While factually and procedurally different from the case at bar, nevertheless, we find American Express instructive. Appellant’s proffer of excuse for not timely responding to suit was based solely upon her deposition testimony.
[T]he lower court’s Order ... is premised upon record [deposition] evidence, i.e., no credibility determination or weight to be attached to a witness’ testimony was required inasmuch as no witnesses testified before the trier of fact. Therefore, since the finding of fact ... was simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts established, [citation omitted]
Id., 328 Pa.Superior Ct. at 172,
The above-cited rationale is equally applicable here. Having so determined, we now proceed to analyze appellant’s deposition to consider whether the trial court abused its discretion in finding that appellant had not proffered a reasonable excuse for failing to answer the complaint. Our assessment leads us to the unqualified conclusion that the trial court did not abuse its discretion.
We recognize that these contacts and the reporting of the accident to the police, standing alone, are insufficient to provide a basis for concluding that appellant actually knew of the pending lawsuit without the aid of court-ordered service. We consider especially significant, however, the fact that when Mr. Marietta contacted Mrs. Looks at her residence in Florida, the latter apparently had no difficulty reaching people in appellant’s business who knew where appellant could be found. Based upon information from these persons, appellant then called her mothеr who informed her of the necessity to contact Mr. Marietta. (Id. 17). Appellant’s deposition reveals the following:
Q How did you know to contact Mr. Marietta, or how did you know that someone by that name was looking for you?
A. I did not. Like I said, he contacted my mother. My mother contacted some people that knew me in the business and asked me to call my mother. Then my mother said that Mr. Marietta had found it advisable for me to talk to him, so I did.
(Id. 17-18; emphasis supplied).
From this, we find that it would be stretching the bounds of reason too far were we to conclude that Mrs. Looks did
We are still bound, however, to examine the two remaining prongs of the test to determine whether the equities favor the opening of the default judgment entered here. Provident Credit Corp. v. Young,
Here, we have no quarrel that appellant’s Petition filed 16 days after entry of judgment would be timely. But we do not view this, nor her defense on the merits — that she was not driving the automobile on the day in question — per
In view of the foregoing considerations, we affirm the Order of the trial court denying appellant’s Petition to open the default judgment entered against her.
Order affirmed.
Notes
. Ms. Rose is not a party to this appeal.
. See footnote 1, supra.
. Appellees’ Motion states that the East Rutherford address was obtained from appellant’s mother after a Notice to take Mrs. Looks’ deposition was served upon her. However, since the record discloses no such Notice of Deposition, we must assume that the notice was never filed. We can assume, however, that some contact with Mrs. Looks must have been made because the Motion contains as an Exhibit a copy of an envelope addressed to appellant at the East
. This letter does not appear of record. However, the Deposition of William R. Marietta indicates that he was contacted by G. Thomas Miller, a member of the law firm which employed Mr. Marietta. Mr. Miller informed Mr. Marietta that he represented appellant in connection with an accident occurring in April, 1980 and that he needed to contact appellant in order to properly defend her. (Deposition of William Marietta, 8). Although Mr. Marietta indicated that he was never directly contacted by Federal Kemper, it is evident that the law firm which employed him also represented Federal Kemper Insurance Company as is noted on the title page of the Deposition of Mr. Marietta.
. It is evident, however, that Federal Kemper counsel did not abandon appellant’s defense once appellant made contact with Mr. Marietta and Mr. Miller, as is apparent from its representation of her at the depositions of Mr. Marietta, Mr. Lamplugh, a supervisor for Federal Kemper and appellant, herself. Counsel for Federal Kemper also filed on her behalf the subject Petition to open and the instant Notice of Appeal to this Court. This is in keeping with counsel for Federal Kemper’s position that the latter might once again defend her pending appellant’s communication and cooperation with counsel and/or Federal Kemper (Plaintiff's (appellees’) Deposition Exhibit No. 1, Deposition of Theresa Looks, hereinafter referred to as "Looks’ Deposition”).
. Aрpellant’s experiences in this regard relate to service attempted on her through traditional, direct means as well as the court-ordered substituted service.
. Appellant bases her defense upon the lack of an agency relationship with Sherry Rose. However, appellees do not premise their claim upon such a relationship. Rather, they allege that appellant permitted Sherry Rose to operate the former’s vehicle negligently, carelessly and recklessly. Moreover, in her deposition, appellant appears to have recanted the allegation she made in her Petition to open that she knew that Sherry Rose was, indeed, operating her vehicle on the day in question. (Looks’ Deposition 25-27).
We also ponder, incidentally, the whereabouts of the even more elusive Sherry Rose. If she had any independent existence at all, Ms. Rose seems to have somehow vanished into the bowels of the earth. We would consider a defense based solely upon imputation of liability to someone whose very existence and whereabouts remain a mystery to be, at best, a rather tenuous one.
Dissenting Opinion
dissenting:
The majority, in this case of court-ordered, substituted service, refuses to accept the defendant’s lack of knowledge of the lawsuit against her as adequate excuse for failing to respond thereto and, accordingly, refuses to open a default judgment to allow the presentation of a valid defense. Because this is contrary to the equitable principles which are applicable to petitions to open default judgments, I dissent.
On April 26, 1980, an automobile owned by Theresa Looks and operated by Sherry Rose allegedly collided with another vehicle in which Joseph Romeo was riding as a passenger. An action was commenced by Romeo against Looks and Rose in Cumberland County by praecipe for writ of sum
On November 21, 1984, Looks filed a petition to open the-default judgment. She alleged that she had not received notice of the action and, therefore, had been unable to respond to it. She also alleged that she had a defense to the action in that she hаd not been driving her car and had
Looks is a horse groom. Because of the peripatetic nature of her employment, she is rarely in one location for more than a few months at a time, though for the past ten years Florida has been her home base.
On April 27, 1980, the day of the accident, Looks’ father died. Tensions in the Looks family grew, and Looks left home. Looks was unable to be located until 1984 when the combined efforts of a private investigator, Looks’ friends in the horse racing industry, and Looks’ mother induced her to contact her attorneys. By this time, however, a default judgment had been entered against her.
The trial court refused to accept Looks’s testimony that she had had no knowledge of the pending action and found, instead, that she should have received actual notice of the suit. Therefore, the court concluded, her default was unreasonable and could not be excused. Looks appealed.
I agree with the majority’s conclusion that the substituted service ordered by the trial court was reasonably calculated to give actual notice to Looks, the defendant named in the action. The service of the complaint upon Looks, therefore, was valid. Noetzel v. Glasgow, Inc.,
The fact that the substitutеd service directed by the court was reasonably calculated to give notice of the pending litigation, however, did not render the judgment immune from a petition to open the default judgment. Valid service does not conclusively show, without more, that the defendant had actual knowledge of the suit. See: Provident Credit Corp. v. Young,
A petition to open a default judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. Schultz v. Erie Insurance Exchange,
a court should not blinder itself and examine each part [of the tripartite test] as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in light of all the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.
Provident Credit Corp. v. Young, supra
That Looks’s petition to open the judgment was promptly filed is without question in this appeal. The petition was filed only sixteen days after the default judgment had been enterеd, and ten days after appellant was contacted by the law firm’s investigator. Appellant has also alleged the rather compelling defense, if proved, that her car was being driven by another person, not her agent, at the time of the accident. The remaining issue and the one causing the controversy in the trial court is whether appellant offered a reasonable excuse for her failure to appear and file a timely answer to the complaint.
The law is clear in this and other jurisdictions that “although service of process may be good, nevertheless, a person may assert lack of knowledge of the suit for reasons other than improper service in seeking to have a default judgment opened.” Donatucci v. Utterback,
In Donatucci v. Utterback, supra, a default judgment was entered against defendants who had failed to respond
Other jurisdictions adhere to the same principle. See, e.g., Rossten v. Wolf,
Because the record in the instant case contains no evidence that Looks had actual knowledge of the Romeo lawsuit, I would hold that her default was adequately explained and that the trial court, by refusing nevertheless to excuse it, committed an abuse of discretion. Because Looks also has a compelling defense to appellee’s action and acted promptly to open the default judgment after learning of it, I would reverse the trial court and order the judgment opened to allow her to present a defense to the cause of action stated against her by Romeo.
In reaching this conclusion, I am guided in part by the wisdom of the Supreme Court’s observations in Kraynick v.
In determining whether a default judgment is to be opened and a defendant let into a defense, we bear in mind two principles of the law: (a) that the entry of a judgment by default finds its authority in the law (Pa.R. C.P. §§ 1037, 1047, 1511), 12 P.S. Appendix and (b) that, even though authorized by the law, such judgments are subject to opening if equitable considerations so demand. In determining whether a judgment by default should be opened, we must ascertain whether there are present any equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his [or her] “day in court” and to have the cause decided upon the merits. In so doing, we act as a court of conscience.
Id.,
“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendаnt from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”
Id.,
A court of conscience, as this Court is called upon now to act, should most certainly open the default judgment in this case. The default judgment was entered against the owner of a vehicle which was alleged to have been involved in a collision at a time when the owner was not present and while her vehicle was being operated by another person for such other person’s purposes. The litigation was undefended, thereby resulting in a default judgment, because the owner of the vehicle was unaware that an action had been commenced against her. I cannot imagine any scenario
Therеfore, I dissent. I would reverse, order the default judgment opened, and remand for further proceedings.
. The order was subsequently amended to remove the requirement of service upon G. Thomas Miller, Esquire.
. Looks also testified that Sherry Rose had had permission to use her car whenever Rose wanted it, that Rose did not tell her that the car had been in an accident, that the car had not been damaged, that she learned of a possible accident when a policeman asked to see her car, and that the policeman, after examining her car, told her that he didn’t believe the car had been in an accident. Shortly thereafter, she and Sherry Rose lost touch with each other, and Looks forgot about the incident. Even if, as the trial court found, appellant knew or should have known that her car had been in an accident, it cannot be inferred therefrom that she also had knowledge that she had been sued by Romeo, whom she had never met and who was a total stranger to her.
. The majority, in its zeal to sustain this default judgment, has conjured up various possibilities by which the defendant might have obtained such knowledge. In fact, however, the majority has been unable to point to any evidence whatsoever to show that appellant had