Wax v. Van Marter

• Decision Date: 29 January 1937
• Docket Number: 228-1936
• Citation: 189 A. 537,124 Pa.Super. 573
• Parties: Wax v. Van Marter, Appellant
• Court: Pennsylvania Superior Court

189 A. 537

124 Pa.Super. 573

Wax v. Van Marter, Appellant

No. 228-1936

Superior Court of Pennsylvania

January 29, 1937

Argued November 11, 1936

Appeal from decree of M. C. Phila. Co., Sept. T., 1935, No. 39, in case of Nelson Wax v. George E. Van Marter.

Trespass.

The facts are stated in the opinion of the Superior Court.

Judgment entered for want of an appearance. Rule to strike off judgment discharged, opinion by Gable, J. Defendant appealed.

Error assigned was order discharging rule to strike off judgment.

Decree affirmed.

Albert Laub, for appellant.

Morris M. Wexler of Levick, Wexler & Weisman, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Baldrige, J.

The only question involved in this appeal is whether the service of process was valid.

The plaintiff, on April 3, 1935, instituted an action of trespass in Philadelphia against the defendant, a resident of Trenton New Jersey. Service of summons and statement of claim were made upon the Secretary of Revenue under section 1 of the Act of 1929, May 14, P. L. 1721, as amended April 24, 1931, P. L 50 (75 PS § 1201), which provides that any nonresident operator or owner of a motor vehicle within this state constitutes the Secretary of Revenue of the Commonwealth his agent for the service of civil process in proceedings arising by reason of an accident or collision occurring within this commonwealth. In pursuance of that act, copies of the summons and statement were sent to the defendant's last known address. The letter, unopened, was returned by the postal authorities, marked "Refused," and was attached to the return of summons. Judgment for want of an appearance was entered thereafter. A writ of inquiry was issued and damages were assessed. Defendant thereupon entered a special appearance and, at his instance, a rule was granted to strike off the judgment, on the ground that there was no registered mail return receipt attached to the plaintiff's return of service, as required under section 2 of the Act of 1929, supra, as amended May 16, 1935, P. L. 174 (75 PS § 1202). The court below, after argument, discharged the rule. Defendant appealed.

Section 2 of the Act of 1935, supra, provides:

"Such process shall be served, by the officer to whom the same shall be directed, upon the Secretary of Revenue of the Commonwealth of Pennsylvania, by sending by registered mail, postage prepaid, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy, with an endorsement thereon of the service upon said Secretary of Revenue, addressed to such defendant at his last known address. The registered mail return receipts of the Secretary of Revenue and of such defendant shall be attached to and made a part of the return of service of such process."

Similar statutes exist in thirty-five states. Such legislation has been held valid as a proper exercise of the police power of the state in regulating the use of its highways by nonresident motorists: Hess v. Pawloski, 274 U.S. 352, 71 L.Ed. 1091, 47 S.Ct. 632; Stoner v. Higginson et al., 316 Pa. 481, 175 A. 527; Vaughn v. Love, 324 Pa. 276, 188 A. 299.

The validity of service similar to the case at bar seems to have been passed upon thus far by only one appellate court: In Creadick v. Keller et al. (Del.), 160 A. 909, a registered letter addressed to each defendant "to be delivered to addressees only" was returned "refused." The court, in declining to set aside service, stated:

"It is clear from the record that the plaintiff's failure to fully comply with the requirements of the statute was caused by the defendant's refusal to receive the letters and sign the receipt. Such refusal made it impossible for the plaintiff to file the return receipt with his declaration. It would create an intolerable situation if the defendant could, by his own wilful act, or refusal to act, prevent the plaintiff from maintaining his action."

In the instant case, nothing appears upon the record to show under what circumstances the letter was refused, or that defendant's address was his correct one. Service has been held invalid where a letter was returned because the addressee could not be found (Smyrnios v Weintraub, Mass., 3 F.Supp. 439); or the addressee had moved and left no address (Syracuse Trust Co. v. Keller, Del., 165 A. 327); or no such street could be found in the directory (Lewis v. James, 19 Pa. D. & C. 16). This appellant argues that the letter addressed to him may have been refused by a third person. If that can be shown, he is not without a remedy; he may apply to the court to set aside the service or to open the judgment. In Vaughn v. Love, supra, a nonresident defendant was permitted to attack the sheriff's return...