Vandegrift v. Knights Road Indus. Park, Inc.

• Decision Date: 15 July 1980
• Parties: Anna M. VANDEGRIFT, a/k/a Anna M. Vandergrift, Appellant, v. KNIGHTS ROAD INDUSTRIAL PARK, INC. and J. Camerlengo Contractors, Inc. a/k/a J. Camerlengo and J. Camerlengo Builders Supply Corp.
• Court: Pennsylvania Supreme Court

Page 1011

416 A.2d 1011

490 Pa. 430

Anna M. VANDEGRIFT, a/k/a Anna M. Vandergrift, Appellant, v. KNIGHTS ROAD INDUSTRIAL PARK, INC. and J. Camerlengo

Contractors, Inc. a/k/a J. Camerlengo and J.

Camerlengo Builders Supply Corp.

Supreme Court of Pennsylvania.

Argued April 21, 1980.

Decided July 15, 1980.

[490 Pa. 432] Julius E. Fioravanti, Philadelphia, for appellant.

Peter A. Glascott, Doylestown, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY, and KAUFFMAN, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

This is an appeal from an order entered in the Court of Common Pleas of Bucks County, Civil Action, Law, granting appellee's motion to take off judgment. The question presented asks whether one of multiple defendants in a trespass action, not served with process, remains subject to valid service of process after the plaintiff's action has been non prossed for failure to proceed. The unusual procedural history of the case is as follows.

On March 5, 1976, three days prior to the expiration of the applicable statute of limitations, Anna M. Vandegrift, a/k/a Anna M. Vandergrift, appellant herein, commenced an action in trespass in the Court of Common Pleas of Bucks County. Named as defendants were appellees, Knights Road Industrial Park, Inc., J. Camerlengo Contractors, Inc., and J. Camerlengo Builders Supply Corporation. The action was commenced by a writ of summons in trespass, and although two defendants were served with process, the sheriff returned "not found" as to defendant Industrial Park.

On March 29, 1976, counsel entered his appearance "for defendants," and it was so entered on the docket. On June 3, 1976, counsel for defendants filed a praecipe for rule on plaintiff to file a complaint. After much dilatory action on the part of plaintiff, counsel for defendants, on November 18, 1976, obtained a judgment of non pros for failure to proceed. To that date defendant Industrial Park had not been personally served with process in this action.

On November 23, 1976, appellant filed complaint against Industrial Park and its co-defendants at the same number and term, and on November 30, 1976, obtained personal service of the complaint on all three defendants through the Bucks County sheriff's office. Counsel for defendants filed preliminary objections to the complaint, pleading prior judgment of non pros; plaintiff simultaneously filed a petition to open judgment of non pros.

On January 7, 1977, the trial court sustained the preliminary objections and dismissed appellant's complaint. No disposition of the petition to open judgment has as yet been made.

On April 5, 1977, appellant obtained a judgment for default of appearance or answer against Industrial Park only, presumably on the basis that it had not been served prior to the original judgment of non pros and was therefore not affected by such judgment. On April 21, 1977, Industrial Park, by the same counsel who had appeared "for defendants" in the prior proceedings, moved to take off the judgment by default which motion was granted by the trial court on May 23, 1977. The Superior Court affirmed on March 3, 1978, per curiam and without opinion. We granted allowance of appeal.

The question presented herein may be variously phrased. Appellant has chosen, correctly in our view, to reduce the issue to its basic form, and poses its statement of question involved in terms as if a hypothetical:

"Where three parties A, B and C are sued, and only A and B are served, and therefore, only A and B are within the jurisdiction of the lower court, where counsel entered his 'appearance for defendants' without further explanation such as a Warrant of Attorney, and/or acceptance of appearance on behalf of C, does said entry of appearance constitute an appearance for C, thus bringing C within the jurisdiction of the Court so as to avoid a default judgment?"

Or put another way, of what effect is the entry of a general appearance, without restriction, upon one of multiple defendants, that one not having been served with process?

This is not a new question; indeed the cases deciding the point are of great age. Those cases are, however, utterly unambiguous, and the question has never troubled this Court.

"We have no doubt in this case. The attorney having marked his name generally, and in no part of the record having declared that he appeared for one in particular, must be presumed to have appeared for both; and the plea entered . . . must . . . be considered as a plea for both. As to the defendant's being summoned, it is not material, he may appear without summons." Scott v. Israel, 2 Binn. 144, 145 (1809).

In accordance with the Scott court's certain resolution of the instant question is a brief but emphatic line of cases of great antiquity: Hatch v. Stitt, 66 Pa. 264 (1870); Hall v. Law, 2 Watts & S. 121 (1841); McCullough v. Guetner, 1 Binn. 214 (1807).

The latter principle adumbrated in Scott, supra, we somewhat more recently reaffirmed in Peterson v. Philadelphia Suburban Transit Company, 435 Pa. 232, 255 A.2d 577 (1969): "It is true, of course, that one can waive service of process by various means, and become a party to a suit by voluntary appearance." Peterson, id., 435 Pa. at 242, 255 A.2d at 583.

The concept that a general appearance entered by an attorney is valid as to all defendants, even those not served, survives in the opinions of the commentators in the form of a presumption. "When an attorney enters an appearance, his authority is presumed." Goodrich-Amram 2nd § 1012:1. ¹

Of similar import is 1 Standard Pennsylvania Practice 545, wherein it is stated that:

"An appearance by an attorney at law is presumed to be authorized, and such presumption is...