Minetola v. Samacicio

*355Dissenting Opinion by

Me. Justice Bok :

I think that the court below has overlooked an injustice that is patent, on .the face of the record and depositions. •.

The sheriff’s return reads: “Served and made known to Carmela Samacicio the within named defendant by handing a true and attested copy of the within complaint to Thomas Samacicio an adult member of the family of said defendant, who stated that his relationship to said defendant is that of son ... at 2321 S. 15th St. . . ; the dwelling house of said defendant.”

Both Carmela and Anna Samacicio testified. Anna said that Thomas is her son and Carmela her daughter ; that' Carmela married and moved to 1503 Ritner Street; that Thomas received a “letter” addressed to Carmela — ostensibly the sheriff’s service — and gave it to his mother Anna ; and that Anna put the paper in a closet and forgot about it.

Carmela testified that she is twenty-one years of age; that she married on October 25, 1958, and moved from 2321 South 15th Street to 1503 Ritner Street and was living there on February 20, 1959, the date of the sheriff’s service; that she is expecting a child; and that she was never served with any papers.

Reading the sheriff’s return and the depositions together, it is apparent that the sheriff served the adult son of a 21-year-old woman, a result so absurd that in my view the court’s curiosity should, have been aroused to- find out more and to see. where justice might lie. The rule that a sheriff’s return is conclusive and that the only remedy is not on the merits but only against the sheriff was to effect justice when nothing else could serve the ends of justice. Here, where the record beárs a danger signal that something is amiss, the rule adverted,to shuts off the process of fact-finding and obscures the truth.

*356Defendant’s valid defense is outlined in her answer -to the complaint. She could not testify to it because her counsel asked her. nothing about it and objected to every question on cross-examination that bore on it, directing her not to answer. I think we should not be sagacious to approve counsel’s action when its effect is to hide the truth.

The depositions suggest the equitable considerations required by Ehnes v. Wagner, 388 Pa. 102 (1957), 130 A. 2d 171, as well as the showing that the petition to open was promptly filed after discovery, and that the default was reasonably explained or excused, as required by Britton v. Continental Mining and Smelting Corporation, 366 Pa. 82 (1950), 76 A. 2d 625.

Since a petition to open is equitable in nature and is directed to the conscience of-the court (McGary v. Lewis, 384 Pa. 173 [1956], 119 A. 2d 497), 1 think that the equitable notion of hearing both sides and deciding on the merits should govern rather than strictures as technical as those of 17th Century common law pleading.

I dissent.