Kepner v. Pennsylvania Threshermen Farmers' Mutual Casualty Insurance

70 Pa. D. & C. 398, 1949 Pa. Dist. & Cnty. Dec. LEXIS 68

• Court: Pennsylvania Court of Common Pleas, Montgomery County
• Decided: December 8, 1949
• Docket: no. 15
• Status: Published

Opinion

Dannehower, J.,

In this action in assumpsit, one of the individual defendants appearing specially has filed preliminary objections raising a question of jurisdiction, on the ground that he was served in Philadelphia County by the Sheriff of Philadelphia County, who was deputized by the Sheriff of Montgomery County.

Pa. R. C. P. 1006 relating to venue and process in actions in assumpsit, provides:

“(a) Except as otherwise provided by subdivision Ob) of this rule, an action against an individual may be brought in and only in a county in which he may be served.

“(b) Actions against the following defendants may be brought in and only in the counties designated by the following rules, defendants who are non-residents or conceal their whereabouts, Rule 2078. . . .”

An action in assumpsit against a defendant individually can only be brought in a county in which he may be served, unless he is a nonresident or conceals his whereabouts, and by “non-resident” is meant one who is domiciled outside of the State. Defendant is not a nonresident of the State, nor has he concealed his whereabouts, as he was served in Philadelphia County, where he resides.

Therefore, in this action, defendant having been served outside of this county, the service by deputation is unauthorized and illegal, and must be set aside.

And now, December 8, 1949, for the foregoing reasons, the preliminary objections to jurisdiction of defendant are sustained, and the purported service upon him is set aside.