Heaney v. Borough of Mauch Chunk

• Decision Date: 26 June 1936
• Docket Number: 181
• Citation: 322 Pa. 487,185 A. 732
• Parties: Heaney v. Mauch Chunk Borough (et al., Appellant)
• Court: Pennsylvania Supreme Court

185 A. 732

322 Pa. 487

Heaney v. Mauch Chunk Borough (et al., Appellant)

No. 181

Supreme Court of Pennsylvania

June 26, 1936

Submitted April 20, 1936.

Appeal, No. 181, Jan. T., 1936, by additional defendant, from judgment and decree of C.P. Carbon Co., Oct. T., 1935, No 61, in case of Bridget Heaney v. Borough of Mauch Chunk and H. S. Shafer. Decree reversed with a procedendo.

Trespass for wrongful death.

The opinion of the Supreme Court states the facts.

Scire facias issued by defendant to bring in additional defendant. Petition by additional defendant to set aside service of process dismissed, opinion by THOMAS, P.J. Additional defendant appealed.

Error assigned was discharge of rule to set aside service.

The court below did not acquire jurisdiction over the person of the additional defendant and the service is stricken off with a procedendo.

J. C Loose, A. S. Loose and Calvin F. Smith, for appellant.

Frank X. York, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES JJ.

OPINION

MR. CHIEF JUSTICE KEPHART:

The Borough of Mauch Chunk, a subdivision of Carbon County, was sued there for damages resulting from injuries sustained through the negligent maintenance of one of its sidewalks. It brought in as an additional defendant under the Sci. Fa. Act of April 10, 1929, P.L. 479, as amended, H. S. Shafer, a resident of Northampton County. Shafer, having been served in that county by deputation, attacks the validity of the service. The court below ruled against him and he appeals.

The only question presented is whether in all actions an original defendant may secure service on an additional defendant no matter where he may be in the state and have him come to the county where the suit is instituted to defend. It cannot be doubted that the legislature has the power to authorize and compel the recognition of such service even though it would displace timehonored rules and cause serious inconvenience to the persons affected. In the consideration of this problem the pertinent legislation must be carefully reviewed, for it is imperative that such service should not receive legal sanction unless there is a clear mandate from the legislature to that effect. The Sci. Fa. Act concerns not only actions based on negligence where two parties may be liable concurrently or jointly, but actions where the additional defendant may be alone liable or liable as endorsee on a promissory note or within the rule of respondeat superior.

The Sci. Fa. Act of 1929 made no provision for service. It was followed by the Act of 1931, which gave to the defendant the same rights of service as the plaintiff had. Later, the Act of 1933, embodying all the features of the Act of 1931, was passed. It reads: "Any defendant, named in any action may sue out, as of course, a writ of scire facias to bring upon the record, as an additional defendant, any other persons alleged to be alone liable or liable over to him for the cause of action declared on, or jointly or severally liable therefor with him with the same force and effect as if such other had been originally sued; and such original defendant shall have the same rights in securing service of said writ as the plaintiff in the proceedings had for service of process in said cause. Where it shall appear that service of said writ on an added defendant cannot be obtained in the county wherein the action was instituted, service of such writ may be made by the sheriff of the county in which the action was instituted deputizing the sheriff of the county wherein such added defendant resides or where service may be had upon him under the existing laws of this Commonwealth in like manner as process may now be served in the proper county." The common law rule in regard to service of process, established by centuries of precedent, has always been accepted as binding in this State. In an action in personam the process must be served personally within the jurisdiction of the court in which the action was commenced, upon the person to be affected thereby. This rule prevails, unless a statute clearly and definitely manifests that a different method as to service has been promulgated by the legislature. We stated in Davidson v.Bright, 267 Pa. 580, that statutes in derogation of the common law must be construed strictly and only such modification of the law will be recognized as the statute clearly and definitely prescribes. We have held that a statute will be interpreted to accord as nearly as possible with the rules...