Aversa v. Aubry

• Decision Date: 16 March 1931
• Docket Number: 188
• Citation: 303 Pa. 139,154 A. 311
• Parties: Aversa v. Aubry, Appellant
• Court: Pennsylvania Supreme Court

154 A. 311

303 Pa. 139

Aversa v. Aubry, Appellant

No. 188

Supreme Court of Pennsylvania

March 16, 1931

Argued January 19, 1931

Appeal, No. 188, Jan. T., 1931, by defendant, from order of C.P. No. 1, Phila. Co., Sept. T., 1930, No. 8463, discharging rule to set aside service of process, in case of Salvatore Aversa v. Fernand Aubry. Affirmed.

Rule to set aside service of process. Before McDEVITT, P.J.

The opinion of the Supreme Court states the facts.

Rule discharged. Defendant appealed.

Error assigned was order, quoting it.

The order is affirmed.

G. A Troutman, with him J. W. McWilliams and Charles S. Wesley for appellant. -- The court below did not have jurisdiction.

Under any circumstance, the service was defective.

Herman Steerman, with him William Nicholas, for appellee. -- The court below had jurisdiction of the subject-matter and of defendant: Mitchell v. Harmony, 13 Howard 115; Knight v. R.R., 108 Pa. 250; Usher v. R.R., 126 Pa. 206; D., L. & W.R.R. v. Ashelman, 300 Pa. 291.

Before FRAZER, C.J., WALLING, SIMPSON, SADLER, SCHAFFER and MAXEY, JJ.

OPINION

MR. JUSTICE WALLING:

This suit was brought in Philadelphia against a citizen of the State of New York on account of personal injuries sustained in an automobile accident in Bucks County, Pennsylvania. The defendant, denying that jurisdiction had been acquired over him, presented his petition to the trial court to have that question preliminarily determined under the Act of March 5, 1925, P.L. 23, and, from a decision sustaining such jurisdiction, he brought this appeal.

We are unable to sustain his contention. The action being transitory (see D., L. & W.R.R. v. Ashleman et ux., 300 Pa 291), might be brought in any county where process could be served upon the defendant. In the instant case, the sheriff of Philadelphia County deputized the sheriff of Dauphin County, who made the service upon the secretary of the department of revenue. Service was also made by registered letter sent to the defendant at his New York State residence. This was intended as a compliance with the Act of May 14, 1929, P.L. 1721, which provides, inter alia, and in substance, that any nonresident who accepts the privilege of using a motor vehicle upon our highways shall be deemed to have constituted the secretary of revenue his agent for the purpose of service of process in any action brought against the nonresident on account of injuries caused by his motor vehicle in Pennsylvania. The act also provides that the officer to whom the process shall be directed shall serve the same upon the secretary of revenue. This act contains no provision limiting the right of suit to the county where the accident occurred, or providing that service of process can be made only by an officer of that county. The suit being legally brought in Philadelphia County the process was properly directed to the sheriff of that county, who served the same, as above stated, upon the...