Hollinger v. Hollinger

Dissenting Opinion by

Mr. Justice Cohen:

By preliminary objections the defendant-appellant, Rita Holiinger, seeks to set aside the service of a complaint in trespass. The sheriff’s return states, inter alia, that Rita Holiinger was served by handing a copy of the writ to an adult member of the family at the dwelling house of the defendant in Philadelphia County. The preliminary objections state that defendant resides in Montgomery County and that therefore the service in Philadelphia County was improper. The lower court dismissed the objections.

The sheriff’s return, on its face, was complete and regular in all respects. It has long been the rule of this Commonwealth that in such circumstances the sheriff’s return is conclusive as between the parties. Miller Paper Co. v. Keystone Coal & Coke Co., 267 Pa. 180, 110 Atl. 79 (1920). See Vaughn v. Love, 324 Pa. 276, 188 Atl. 299 (1936) and Commonwealth v. Degillio, 197 Pa. Superior Ct. 568, 180 A. 2d 267 (1962). Defendant attempts to avoid application of this rule by contending that fraud, trickery or other artifice was employed to secure the sheriff’s return. We agree with the lower court that the record would not support such a finding. Defendant also attempts to bring her case under Bujniewicz v. Norway Service Cleaners, Inc., 404 Pa. 328, 171 A. 2d 761 (1961) wherein service was set aside because the answer to the preliminary objections in that case contained an admission that the sheriff’s return was false. Such is not the case here.

If defendant was injured by any impropriety of the sheriff her remedy is against him. Morris v. Bender, 317 Pa. 533, 177 Atl. 776 (1935), Rittenberg v. Stein, 97 Pa. Superior Ct. 554 (1930).

*486I do not think the majority fully appreciates the vast implications of their new rule. While in a few instances an injustice may result by adherence to the old rule (which may be remedied) that, in my mind is not sufficient to set aside a rule of law that in the past has insured stability and certainty to our legal procedures. It would do less harm were the majority to find fraud and retain the sound rule of conclusiveness.

I dissent.