Deer Park Lumber, Inc. v. Major

• Decision Date: 08 June 1989
• Citation: Deer Park Lumber, Inc. v. Major, 559 A.2d 941, 384 Pa.Super. 625 (Pa. Super. Ct. 1989)
• Parties: DEER PARK LUMBER, INC., Appellee, v. C.B. MAJOR and Eunice Major, his Wife, their Heirs, Successors, Assigns, and all Persons, Firms, or Associations Claiming Right, Title or Interest from or under Them, Generally, Appellants. 2541 Phila. 1988
• Court: Pennsylvania Superior Court

Page 941

559 A.2d 941

384 Pa.Super. 625

DEER PARK LUMBER, INC., Appellee, v. C.B. MAJOR and Eunice Major, his Wife, their Heirs Successors, Assigns, and all Persons, Firms, or Associations Claiming Right, Title or Interest from or under Them Generally, Appellants.

2541 Phila. 1988

Superior Court of Pennsylvania.

Argued Jan. 26, 1989.

Filed June 8, 1989.

James R. Anzalone, Wilkes-Barre, for appellants.

Helen R. Vanston, Tunkhannock, for appellee.

Before BROSKY, McEWEN and OLSZEWSKI, JJ.

OLSZEWSKI, Judge.

This is an appeal from an order entered by the Court of Common Pleas of Wyoming County denying appellants' petition to open judgment. On appeal, appellants argue that the trial court erred by ordering service of appellee's complaint by publication. Additionally, appellants claim that the trial court abused its discretion in denying their petition to open judgment on the basis that the petition was untimely. For the following reasons, we reverse.

On July 21, 1987, appellee instituted an action to quiet title to a parcel of real estate situated in Noxen Township, Wyoming County. On that same date, the trial court issued an order directing that service of the complaint be made by publication based upon an affidavit filed by Ronald Andrews, president of appellee, alleging that appellants were dead or, if living, their whereabouts were unknown. On August 21, 1987, the trial court directed that judgment by default be entered against appellants for failure to respond to the complaint, and further ordered that final judgment would be entered unless appellants brought an action in ejectment within thirty days. On September 24, 1987, after appellants failed to respond within the allotted time, judgment was entered in favor of appellee and against appellants, granting title to the parcel of land in the name of appellee.

On March 3, 1988, appellants filed a petition to open the default judgment. Pursuant to rule to show cause, the trial court ordered that depositions be taken and that a hearing be scheduled. After consideration of the testimony and facts presented, the trial court, by order dated August 10, 1988, denied appellants petition to open judgment. Appellants then filed the instant appeal.

Appellants first argue that the trial court erred in its determination that service by publication was proper. Appellants point to Rule 430(a) of the Pennsylvania Rules of Civil Procedure and stress that before service by publication is authorized, the plaintiff must state in an affidavit the reasons why personal service cannot be made as well as the nature and extent of the investigation utilized to determine the whereabouts of potential defendants. In the present case, appellants claim that the affidavit in support of service was defective on its face in that it failed to state the investigation undertaken to determine the whereabouts of any potential heirs to the property in question. ¹ According to appellants, such a defect renders the method of service invalid. We agree.

A petition to open a default judgment is an appeal to the court's equitable powers, and the trial court's disposition of the petition will not be disturbed absent an error of law or a manifest abuse of discretion. Romeo v. Looks, 369 Pa.Super. 608, 535 A.2d 1101 (1987), allocatur denied, 518 Pa. 641, 542 A.2d 1370 (1988); U.S. Dept. of Housing v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986). In deciding whether to open the judgment, three factors should be considered and must coalesce: (1) the petition to open must be promptly filed; (2) the failure to enter an appearance or file a timely answer must be excused; and (3) the party seeking to open the judgment must exhibit a meritorious defense. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Romeo v. Looks, supra; U.S. Dept. of Housing v. Dickerson, supra.

We need not, however, engage in the above analysis if the party seeking to open the judgment has not received valid service or notice of the proceedings. Under those particular circumstances, the court has no jurisdiction over the party and is powerless to enter judgment. See Rubin v. Nowak, 367 Pa.Super. 629, 533 A.2d 451 (1987); U.S. Dept. of Housing v. Dickerson, supra; Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979); Johnson v. Atlas Van Lines, 274 Pa.Super. 253, 418 A.2d 392 (1980). Thus, we need first determine whether the court-ordered substituted service used in this case was valid so as to empower the court to render its judgment.

Rule 410 of our rules of civil procedure provides in pertinent part:

Rule 410. Real Property Actions

(a) In actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided by Rule 400 et seq.

* * *

* * *

(c) If service is made pursuant to an order of court under Rule 430(a), the court shall direct one or more of the following methods of service:

(1) publication as provided by Rule 430(b) ...

Pa.R.C.P., Rule 410, 42 Pa.C.S.A.

Turning to Rule 430, we find the following in pertinent part:

Rule 430. Service Pursuant to Special Order of Court. Publication

(a) If service cannot be made under the applicable rule the plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made.

(b)(1) If service of process by publication has been authorized by rule of civil procedure or order of court, the publication shall be by advertising a notice of the action once in the legal publication, if any, designated by the court for the publication of legal notices and in one newspaper of general circulation within the county. The publication shall contain the caption of the action and the names of the parties, state the nature of the action and conclude with a notice....

(2) When service is made by publication upon the heirs and assigns of a named former owner or party in interest, the court may permit publication against the heirs or assigns generally if it is set forth in the complaint or an affidavit that they are unknown.

Pa.R.C.P., Rule 430, 42 Pa.C.S.A.

Our investigation of these recent statutes, which were adopted on June 20, 1985, and which have been in effect since January 1, 1986, has failed to provide us with any appellate decision construing their contents. Therefore, it is necessary for this Court to provide an interpretation before we can proceed with appellants' arguments. When faced with such a task, our duty is to ascertain and effectuate the intention of the legislature. Estate of Osborne, 363 Pa.Super. 200, 525 A.2d 788 (1987). In so doing we are guided by the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. Under this Act we are mindful to follow the letter, and not the spirit, of the law when the wording of the statute in question is clear and free from ambiguity. Mowery v. Prudential Property & Casualty Insurance Co., 369 Pa.Super. 494, 535 A.2d 658 (1988); 1 Pa.C.S.A. § 1921(b).

As set forth above, Rules 410 and 430 are clear on their face. Rule 410 provides the general service provisions for actions regarding real property. Where service cannot be made under these provisions, for example, where a defendant cannot be located, a plaintiff may move the court for a special order directing the manner of service pursuant to Rule 430(a). Under this approach, a plaintiff must provide, along with the motion, an affidavit stating the nature and extent of the investigation undertaken to locate the defendant. The purpose of this procedure is to provide proof that a good faith effort has been made to effect service under normal methods. Only after such proof has been offered is the court authorized to direct publication or another method of substitute service.

In the case at bar, appellee did not file a motion requesting that service be accomplished by publication. Rather, appellee filed an affidavit along with its complaint stating that the whereabouts of appellants were unknown. This affidavit, drafted pursuant to former Rule 1064(c), failed to provide any indication of the types of procedures used to locate C.B. or Eunice Major or any of the appellants herein. ² Nevertheless the trial court, without inquiring into the investigation undertaken to establish the whereabouts of any potential defendants, ordered service by publication. This was clearly error. Service by publication is the exception, not the rule, and can only be ordered provided the requirements of Rule 430(a) have been met. In this case, the record reveals that they have not.

Both the trial court and appellee argue that the proper procedure has been followed in this case. They claim that Rule 430(b)(2) authorizes a plaintiff to effectuate service of process by publication without compliance to the provisions of Rule 430(a). In short, it is posited that Rule 430 is comprised of two separate and distinct rules: section (a) and (b)(1), which require a motion and affidavit outlining the specific steps taken to locate a defendant before publication is authorized; and section (b)(2), which allows a plaintiff to proceed by publication merely by filing an affidavit along with the complaint that the whereabouts any potential defendants are unknown. We are compelled to disagree. As we interpret Rule 430, in order to avail oneself of the publication provisions outlined in section (b), the requirements of section (a) must first be met. We, therefore, reject appellee's argument.

It is also argued by appellee that the investigation undertaken to locate the appellants, while not actually placed in its affidavit, was nevertheless sufficient under the rules to allow for service by publication. Appellee points to the testimony of Wayne Divis, a...