Wandschneider v. Romascavage

43 Pa. D. & C.3d 607, 1983 Pa. Dist. & Cnty. Dec. LEXIS 6
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedSeptember 29, 1983
Docketno. 2132 Civil 1982
StatusPublished

This text of 43 Pa. D. & C.3d 607 (Wandschneider v. Romascavage) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wandschneider v. Romascavage, 43 Pa. D. & C.3d 607, 1983 Pa. Dist. & Cnty. Dec. LEXIS 6 (Pa. Super. Ct. 1983).

Opinion

WILLIAMS, S.J.,

— Counsel for defendant Leo S. Romascavage has appeared specially to present the instant preliminary objections to a complaint in equity filed against him on September 16, 1982, by plaintiff Mary Ann Wandschneider. The record shows that two attempts to serve defendant with process were made by the sheriffs department. In a return filed on September 7, 1982, the sheriff had been instructed to serve a Summons in Equity upon “Leo S. Romascavage, Route 209, Brodheadsville, Pa.,” with the further description of the location: “. . . [A]cross from Arco Station; two houses down from Giorgio’s — white house on slope (should be a 1982 Chevy there BWE 106 license number).” Deputy Sheriff John W. Bensley reported that he served the process upon “Elizabeth E. Romascavage, Power of Attorney for Leo S. Romascavage, Box 245, Rt. 209, Brodheadsville, Pa.” on September 8, 1982, at 1:30 p.m. In a return filed on September 17, 1982, the sheriff had been instructed to serve a complaint in equity upon “Elizabeth E. Romascavage, Power of Attorney for Leo S. Romascavage, Route 209 Brodheadsville, Pa.”, with the further instructions: “September 8, 1982, John Bensley serve Elizabeth E. Romascavage power of attorney for Leo S. Romascavage at Box 245 Rt. 209 Brodheadsville, Pa.” Deputy Sheriff John Bensley reported that he had done so on September 20, 1982, at 11:15 a.m.

It is apparent that defendant’s attack upon the attempted service is two-pronged: as a demurrer — the preliminary objections are so captioned; and in effect, as a petition raising a question of jurisdiction, pursuant to Pa. R.C.P. 1017(b)(1), wherein defend[609]*609ant seeks to introduce new factual material not otherwise apparent upon the face of the record.

Addressing first the demurrer, we note that the method for effecting service of process is prescribed by Pa. R.C.P. 1009 (b):

“(b) When the defendant is an individual, the writ of summons, or the complaint if the action is commenced by complaint, may be served

(1) by handing a copy to the defendant; or

(2) by handing a copy

(i) at the residence of the defendant to an adult member of the family with which he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or

(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or

(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof

“(c) Service upon the following individual defendants may also be made as provided by the following rules: an incompetent, Rule 2055; anon-resident or a person who conceals his whereabouts, Rule 2079; a partner, Rule 2131; an additional party, Rule 2254.” (Emphasis supplied.)

The deputy sheriff, in making his two returns, confined his report to facts within his personal knowledge, and thus immune to contradiction by extrinsic evidence: Vaughn v. Love, 324 Pa. 276, 279, 188 A. 299, 300, 301 (1936). They may be summarized: (1) at Box 245, Route 209, Brodheadsville, Pa., service of the summons in equity was made on September 8, 1982, at 11:15 a.m., (2) at Box 245, Route 209, Brodheadsville, Pa., service of the complaint in equity was made on Sep[610]*610tember 20, 1982, at 11:15 a.m., (3) eaqh of these services was made, not upon defendant, but upon a woman who identified herself as Elizabeth E. Romascavage, and (4) Elizabeth E. Romascavage represented that she had a power of attorney from defendant, Leo S. Romascavage. These facts, without supplementary explanation by extrinsic evidence, are insufficient to establish that valid service pursuant to Pa.R.C.P. 1009 (b) was made. The deputy sheriff did not have personal knowledge — nor did he so represent in his returns — that the Box 245 address was either the residence of defendant — see Pa.R.C.P. 1009(b)(2)(i) and (ii) — or his office or usual -place of business — see Pa.R.C.P. 1009(b)(2)(iii); that Elizabeth E. Romascavage was either an adult member of the family with which defendant resides,’ or an adult person in charge of defendant’s residence — see Pa.R.C.P. 1009(b)(2)(i); or that the power of attorney, which Elizabeth E. Romascavage claimed to have, contained an authorization to accept service of process on behalf of defendant, Leo S. Romascavage. Accordingly, the demurrer will be sustained.

In effect, although not so denominated, these preliminary objections are a petition raising a question of jurisdiction. The petition was duly verified pursuant to Pa.R.C.P. 1024 (c) because Elizabeth E. Romascavage, although not a party, made the affidavit based upon matters within her personal knowledge. She averred:

“3. At the time of service on Elizabeth Romascavage, defendant did not reside with Elizabeth Romascavage at Box 245, Brodheadsville, Pa. Defendant had not resided at that address for five and one-half years.

“4. Elizabeth Romascavage is no longer the wife of defendant and has not been since a decree in di[611]*611vorce was granted by your honorable court on July 10, 1980, at no. 1341, June term 1979.”

These averments, uncontradicted by any answer filed by plaintiff, constitute positive extrinsic evidence that no valid service under Pa. R.C.P. 1009 (b) had been made for the reasons that the place of service was not defendant’s residence, and the person upon whom the service was made bore none of the requisite relationships to defendant. It becomes apparent that any validity, if it exists, must be found in the provisions of the power of attorney, a copy of which is attached to plaintiff’s argument brief. We emphasize that counsel’s brief is not an appropriate vehicle for bringing new factual material upon the record: Commonwealth v. Stanton, 294 Pa. Super. 516, 621, 522, 440 A.2d 585, 588 (1982).

Here, counsel for the parties have stipulated that the copy of the power of attorney attached to plaintiff’s brief is correct, and that the court may consider it in arriving at a disposition of this case.

Two questions are presented: (1) May the service of process, which fails to conform to the method prescribed by law, be validated by conformance to the provisions of a power of attorney executed by defendant? (2) If so, does the power of attorney presented in' this case authorize acceptance of service by Elizabeth E. Romascavage on behalf of defendant, Leo S. Romascavage? The first question may be answered in the affirmative: Continental Bank v. Brodsky, 225 Pa. Super. 426, 430, 311 A.2d 676, 678 (1973). There, defendant had executed a surety agreement with plaintiff bank which expressly provided:

“Undersigned and each of the Undersigned consent to the exclusive jurisdiction of the Courts of the Commonwealth of Pennsylvania in any and all actions and proceedings whether arising hereunder or [612]*612under any other agreement or undertaking and appoint in any and all such actions and proceedings any employee of BANK as agent for each of Undersigned for service of process,

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Bluebook (online)
43 Pa. D. & C.3d 607, 1983 Pa. Dist. & Cnty. Dec. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wandschneider-v-romascavage-pactcomplmonroe-1983.