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Home My WebLink About00-0267 civilHAROLD Z. SWIDLER, · Plaintiff ' · VS. · EARL WYAND, ' Defendant ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-0267 CIVIL CIVIL ACTION - LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS AND PLAINTIFF'S PRELIMINARY OBJECTIONS THERETO BEFORE HOFFER, P.J., HESS AND GUIDO, J.J, ORDER AND NOW, this 15'~ day of January, 2001, the preliminary objections of the defendant for a more specific pleading and in the nature of a demurrer are DENIED. A hearing on an allegation of improper service is herewith set for Thursday, February 8,2001, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. B Y THE COURT, Bruce Warshawsky, Esquire For the Plaintiff KT'. Hess, J. Tyrone G. Johnson, Esquire For the Defendant :rim HAROLD Z. SWIDLER, · Plaintiff · · VS. ' o EARL WYAND, · Defendant · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA OO-O267 CIVIL CIVIL ACTION- LAW IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS AND PLAINTIFF'S PRELIMINARY OBJECTIONS THERETO BEFORE HOFFER, P.J., HESS AND GUIDO, J.J. , OPINION AND ORDER This is a case in which the defendant challenges the service of original process. The plaintiff, Harold Z. Swidler, filed a praecipe for writ of summons on January 13, 2000. The defendant, Earl A. Wyand, is a resident of West Virginia. The plaintiff attempted to serve Wyand by certified mail, twice, in accordance with Pa.R.C.P. 403 and 404, but was unsuccesSful. Following the two unsuccessful attempts at service of the writ of summons by mail, the plaintiff, on March 16, 2000, had the writ of summons reissued. The plaintiff maintains that the defendant was served personally with a copy of the reissued writ of summons by private investigator, Robert E. Bendig, on May 26, 2000, at Funeral Transport Services, Route 1, Box 169 JR, Marlowe, WV 25419. An affidavit of service, provided by Bendig, was filed of record on June 22, 2000. The defendant asserts that he was not personally served or otherwise served with a copy of the writ. The plaintiff then filed a complaint in this case. It was served upon the defendant by first-class mail on July 25, 2000. The complaint alleges that on or about October 11, 1997, Swidler and Wyand entered into a lease agreement whereby Wyand would lease the premises from Swidler for ten years. Swidler had stored at the premises various items used for the 00-0267 CIVIL maintenance and improvement of the premises, including air conditioners, aluminum glass double doors, a riding lawn mower, plywood, rubber roofing pads, drywall sheets, building lumber, and an electrical system service, all of which had a collective value of $44,700.00. Swidler and Wyand had several discussions about Wyand purchasing some or all of the property from Swidler, but they purportedly never reached an agreement. On November 30, 1997, Swidler and Wyand agreed that the lease would be cancelled because Wyand was unable to secure governmental approval for his intended use of the property. On or about January 17, 1998, Swidler discovered that the property stored at the premises had been removed. A complaint alleges that it was Wyand who removed and carried away the property from the premises. When there was no answer to the complaint, the plaintiff served a ten-day notice of default on the defendant. This was done by first class mail on August 18, 2000. On August 25, 2000, the defendant filed preliminary objections claiming improper service pursuant to Pa.R.C.P. 1028(a)(1), a demurrer pursuant to Pa.R.C.P. 1028(a)(4), and a claim of lack of specificity pursuant to Pa.R.C.P. 1028(a)(3). The preliminary objections of the defendant demurring to the plaintiff' s complaint and seeking greater specificity are clearly without merit. They will be denied without further discussion. The preliminary objection raising a claim of improper service will, however, remain as an issue at least insofar as the defendant shall be granted a hearing on the matter. Proper service is a prerequisite to the court's jurisdiction over the person of a defendant. .Frycklund v. Way, 410 Pa. Super. 347, 599 A.2d 1332, 1334 (1991). In determining whether proper service has been made, we require strict adherence to the roles. Collins v. Park, 423 Pa. Super. 601, 621 A.2d 996, 997 (1993). Improper service is not merely a procedural defect that 00-0267 CIVIL can be ignored when the defendant, by whatever means, becomes aware that an action has been commenced against him.~ Frycklund, 410 Pa. Super. at 351-52, 599 A.2d at 1334. The rule applicable to service outside the Commonwealth is Pa.C.R.P. 404 and provides that service may be made by a competent adult. The Pennsylvania Supreme Court has held in the absence of fraud, the return of service of a sheriff, which is full and complete on its face, is conclusive and immune from attack by extrinsic evidence. Hollinger v. Hollinger, 416 Pa. 473,206 A.2d 1 (1965). The Court explained' The rule of conclusiveness of a return of service of process is based upon the presumption that a sheriff, acting in the course of his official duties, acts with propriety and, therefore, when a sheriff in the course of such duties makes a statement, by way of an official return, such statement is given conclusive effect. However, both logic and common sense restrict the conclusive nature of a sheriff's return only to facts stated in the return of which the sheriff presumptively has personal knowledge, such as when and where the writ was served... .Id. at 477, 206 A.2d at 3. Some courts have expanded the rule of conclusiveness to include constables. See Anzalone v. Vormack, 718 A.2d 1246, 1249 (Pa. Super. 1998). In VOrmack, the court reasoned that because of the judicial nature and role of a constable and sheriff in the effectuation of service of process before the minor judiciary, we see no reason to reserve the conclusiveness and immunity from extrinsic attack of a return of service to a sheriff only. Id___:. ,,, ~ Because improper service goes to the jurisdiction of the court, it can be raised at any time. For this reason, clearly, the preliminary objections of the plaintiff to the defendant's preliminary objections, alleging that the defendant's objections are untimely, must be denied. Objections to improper service can be raised even after judgment. See Dubrey v. Izaguirre, 454 Pa. Super. 504, 685 A.2d 1391 (1996). 3 00-0267 CIVIL Here, however, the defendant is attacking the return of service by a private detective hired by the plaintiff. In this regard, we know of no authority to the effect that a private detective's return of service is conclusive and immune from a defendant's attack. Unlike a sheriff or constable, a private detective is not working in an official capacity for the Commonwealth but rather as a person hired by one of the parties. Thus, we cannot deem the return conclusive on the basis that the detective has acted in a judicial role. The defendant has filed a verification (albeit belatedly) confirming, under oath, his assertion that he was not the person served by Detective Bendig. An issue of fact is thus raised by this preliminary objection. As noted in Pa.R.C.P. 1028(c)(2), it now becomes incumbent upon us to consider evidence "by depositions or otherwise." In an effort to avoid additional delay in this case, we will set a brief hearing before the court, itself, on this matter. ORDER AND NOW, this day of January, 2001, the preliminary objections of the defendant for a more specific pleading and in the nature of a demurrer are DENIED. A hearing on an allegation of improper service is herewith set for Thursday, February 8,2001, at 11:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Hess, J. 00-0267 CIVIL Bruce Warshawsky, Esquire For the Plaintiff Tyrone G. Johnson, Esquire For the Defendant :rim