U. R. E. Federal Credit Union v. Bealko

307 A.2d 393, 224 Pa. Super. 288, 1973 Pa. Super. LEXIS 1897

• Court: Superior Court of Pennsylvania
• Decided: June 14, 1973
• Docket: Appeal, No. 589
• Status: Published

Opinion

Opinion by

Jacobs, J.,

On this appeal the appellants argue that the lower court erred in dismissing their preliminary objections, having wrongly decided an issue as to in personam, jurisdiction.

The facts are as follows: The appellee, being the holder of a joint and several note signed by appellants, began a suit in assumpsit on the note by filing a complaint. The sheriff’s return set forth that he served both appellants at their residence at a certain address in McKeesport, by handing two copies of the complaint to Albert A. Bealko personally and further stating that Albert was the husband of Alice F. Bealko and an adult member of the family with whom she resided.

Appellants filed preliminary objections raising tbe validity of service and alleging facts outside tbe record with regard to that issue. Those facts were that Alice F. Bealko did not reside at tbe address in McKeesport and bad not for some time been a member of tbe family of Albert A. Bealko.

Whether or not tbe preliminary objections were endorsed with a notice to plead does not appear from tbe record. In any event, tbe appellee did not file an answer but listed tbe case for argument. No depositions were taken and after argument tbe court dismissed tbe preliminary objections.

If uncontradicted, tbe sheriffs return, on which tbe lower court based its bolding, would make unlikely a decision other than that reached below. It shows on its face clear compliance with Pa. R C. P. No. 1009 governing service of the complaint. It indicates that Albert A. Bealko, an individual, was served when tbe complaint was banded to him, and that Alice F. Bealko was served when a copy was handed to her husband, an adult member of tbe family with which she resided, at her residence.¹

However, in its brief filed in this appeal appellee admits that there was no service on Alice F. Bealko because she did not reside at tbe McKeesport address and was not a member of Albert A. Bealko’s family. For that reason, it is now apparent that tbe court below does not have jurisdiction over tbe person of Alice F. Bealko.

Tbe order dismissing Albert A. Bealko’s preliminary objections is affirmed. Tbe order dismissing Alice F. Bealko’s preliminary objections is reversed and as to her tbe service is set aside.

1 As to the high degree of respect which is to be accorded a sheriff’s return, see Miller v. Carr, 221 Pa. Superior Ct. 306, 292 A.2d 423 (1972).