author: BROSKY, Judge:

text:
    535 A.2d 1095
    ALUMNI ASSOCIATION, DELTA ZETA ZETA OF LAMBDA CHI ALPHA FRATERNITY v. Van Kingsley SULLIVAN and Ronald C. Unterberger v. KAPPA CHAPTER OF SIGMA CHI FRATERNITY Sigma Chi Fraternity and Bucknell University. Appeal of Ronald C. UNTERBERGER.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1987.
    Filed Dec. 29, 1987.

      F. Lee Shipman, Harrisburg, for appellant.
    Jonathan E. Butterfield, Williamsport, for KAPPA Chapter, appellee.
    Robert J. Menapace, Sunbury, for SIGMA CHI fraternity, appellee.
    David R. Bahl, Williamsport, for Bucknell, appellee.
    Before CAVANAUGH, BROSKY and WATKINS, JJ.
   BROSKY, Judge:

This is an appeal from an order sustaining the preliminary objections, in the nature of a demurrer, of three additional defendants (herein appellees) to the joinder complaint filed by the original defendant (herein appellant), without leave to amend. Appellant now contends that the joinder complaint stated a viable cause of action as to all three appellees, and should not have been dismissed.

Upon review of the record and the briefs of counsel, we affirm the trial court’s dismissal of appellees Sigma Chi Fraternity (“Sigma Chi”) and Bucknell University (“Bucknell”), but reverse and reinstate the joinder complaint against appellee Kappa Chapter of Sigma Chi Fraternity (“Kappa Chapter”).

This matter arises from a fire which occurred in the early morning hours of December 8, 1983, and which severely damaged the Lambda Chi Alpha fraternity house, located on the campus of appellee Bucknell University. Appellant, Ronald C. Unterberger, a then eighteen year old freshman at Bucknell, had attended two campus parties on the evening of December 7, at, respectively, the Trax Hall freshmen dormitory and the Kappa Chapter fraternity house. Appellant had consumed alcoholic beverages at both parties, despite his status as a minor, and had become visibly intoxicated. As a result, appellant and another student, Van Kingsley Sullivan, accidentally set, and were unable to put out, a fire at the nearby Lambda Chi Alpha house.

On August 16, 1985, a civil complaint was filed by the Alumni Association, Delta Zeta Zeta of Lambda Chi Alpha Fraternity, against appellant and Sullivan, claiming over four hundred thousand dollars ($400,000.00) in property damage as a result of their negligence in setting the December 8 fire. On October 18, 1985, appellant had writs of summons issued to join, as additional defendants, Kappa Chapter, Sigma Chi, and Bucknell. A joinder complaint followed on November 8, 1985. Appellant’s complaint alleged that: (1) Kappa Chapter, in furnishing alcoholic beverages to appellant, had created a known foreseeable risk, in that minors are presumed incompetent to handle the effects of alcohol, and was therefore liable for the fire damage negligently caused by appellant while in an intoxicated state; (2) Sigma Chi, as owner of the Kappa Chapter house, had or should have known that alcoholic beverages were being served to minors at Kappa Chapter’s fraternity parties, yet had permitted the practice to continue unabated, and was therefore liable for the fire damage caused by appellant; and (3) Bucknell, through its counselors, agents, and employees, had or should have known that alcoholic beverages were being served to minors at private dormitory parties, yet had permitted the practice to continue unabated, and was therefore liable for the fire damage caused by appellant. The trial court sustained demurrers as to all three additional defendants, and dismissed Unterberger’s complaint with prejudice. This timely appeal followed.

In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa.Super. 216, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

The basic elements of a cause of action founded on negligence are: (1) a duty on the part of the defendant to conform to a certain standard of conduct with respect to the plaintiff; (2) a breach of that duty by the defendant; (3) a reasonably close causal connection between the conduct of the defendant and the resulting injury to the plaintiff; and (4) actual loss or damage to the plaintiffs interests. Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606, 612 (1985); Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 495 A.2d 963, 967 (1985); Prosser, Law of Torts, § 30 at 143 (4th Ed. 1971).

Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Zanine v. Gallagher, 345 Pa.Super. 119, 497 A.2d 1332, 1334 (1985). Where the parties are strangers to each other, such a relationship may be inferred from the general duty imposed on all persons not to place others at risk of harm through their actions. Id. The scope of this duty is limited, however, to those risks which are reasonably foreseeable by the actor in the circumstances of the case. Id.

Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Migyanko v. Thistlewaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980); also see Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Moreover, the question of foreseeability is not to be confused with the question of legal or proximate causation. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 16, 481 A.2d 1194, 1197 (1984). Even where harm to a particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a “proximate” or “legal” consequence naturally flowing from the wrongdoer’s misconduct. See Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 274, 516 A.2d 672, 676 (1986); see also Palsgraf, supra, 162 N.E. at p. 103. To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiffs harm.

Clearly, reasonable minds will often differ as to where to draw a cut-off line. Thus, whether in a particular case the plaintiff has demonstrated, by a preponderance of the evidence, that the defendant’s negligent conduct was a substantial factor in bringing about the plaintiff’s harm, is normally a question of fact reserved for the jury, and should only be removed from the jury’s consideration where it is clear, as a matter of law, that reasonable minds could not differ on the issue. Little, supra, 333 Pa.Superior Ct. at 17, 481 A.2d at p. 1198.

Applying these basic principles to the matter sub judice, the trial court held that: (1) Sigma Chi and Bucknell could not be held liable in the absence of allegations that they had acted as social hosts, in actually furnishing or serving alcoholic beverages to minors; and (2) Kappa Chapter, while alleged to have acted as a social host, had no duty to protect the neighboring Lambda Chi Alpha house from an unforeseeable risk, i.e. the negligent setting of a fire by an intoxicated minor, and, even in the presence of a duty, had not proximately caused, by furnishing alcohol to Unterberger, the setting of the fire. We are in accord with the trial court’s resolution in (1), but reject its analysis in (2).

As all parties have agreed, the controlling case in this matter is the Supreme Court’s decision in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). Prior to the Congini decision, only licensed dispensers of alcohol could be civilly liable for furnishing alcoholic beverages to minors. See 47 P.S. § 4-493(1). In Congini, the Supreme Court extended the scope of liability to include social hosts, who knowingly serve or furnish alcoholic beverages to a minor. As minors are deemed legally incompetent to handle the effects of alcohol, a social host is now negligent per se when knowingly furnishing or serving alcoholic beverages to a minor, and may be held civilly liable for harm proximately resulting from the minor’s intoxication. Congini, supra, 504 Pa. at p. 161, 470 A.2d at 517, 518.

Sigma Chi and Bucknell contend, and the trial court agreed, that Congini articulated a narrow exception only to the general rule against social host liability, and only intended to extend liability to those persons who knowingly serve or furnish alcohol to minors, thereby breaching the general duty imposed on all persons not to place others at a foreseeable risk of harm. In support of their position, both have cited McCrery v. Scioli, 336 Pa.Super. 455, 485 A.2d 1170 (1984), a post-Congini decision in which our Court refused to extend vicarious civil liability, under the Liquor Code, to a landlord of a corporate liquor licensee. While appellees concede that McCrery is arguably distinguishable in that liability was predicated upon a violation of the Liquor Code, as opposed to the Crimes Code, both maintain that the two decisions, read in conjunction, indicate that liability under either Code was intended to be predicated upon the actual furnishing of alcohol by the party sought to be held liable. We agree.

The Congini decision contains the following language pertaining to what conduct forms the basis of a cause of action for social host liability:

Under our analysis, an actor’s negligence exists in furnishing intoxicants to a class of persons legislatively determined to be incompetent to handle its effects. It is the person’s service which forms the basis of the cause of action, not whether or not a putative plaintiff is entitled to recover ...

Congini, supra, 504 Pa. at p. 163, 470 A.2d at p. 518. (Emphasis supplied). Additionally, it is of note that the plaintiff in Congini also attempted to impose, under a theory of landowner liability, a duty upon the minor plaintiff’s employer, Portersville Valve Co., to have prevented the furnishing of alcohol to the minor plaintiff. The Congini Court rejected this theory on the basis that Portersville, while potentially liable as the social host of the function in question, had not committed any affirmative or active negligence, and could not be held liable as a possessor of land in the absence of willful and wanton injury to the licensee-plaintiff. Congini, supra, 504 Pa. at p. 164, 470 A.2d at p. 519. This holding was reiterated by the McCrery court, with respect to a similar argument by plaintiff McCrery that the corporate owner of the restaurant at which he was served should be deemed vicariously liable for the actions of the restaurant’s employees, who were not employees of the corporation itself:

Furthermore, we note that Congini, supra, examined an argument similar to the one appellant raises herein, that defendants breached a duty as a landowner to the plaintiff, and found that a possessor of land is not liable to a licensee (minor) in the absence of willful and wanton injury. As in Congini, such willful and wanton injury was not pleaded by appellant herein.

McCrery, supra, 336 Pa.Superior Ct. at p. 467, n. 4, 485 A.2d at p. 1176, n. 4.

In the matter sub judice, appellant did not plead that either Sigma Chi or Bucknell furnished the alcohol in question or willfully and wantonly inflicted injury upon appellant. Appellant’s sole allegation against these appellees is that they were aware, or should have been aware, that alcohol was being served to minors at fraternity and private dormitory parties, yet neglected to take action to stop the practice. Under the Congini-McCrery line, such allegations do not set forth a viable cause of action in this Commonwealth. We therefore uphold the dismissal of appellant’s complaint as to Sigma Chi and Bucknell.

A different scenario is presented by the allegations of negligence made with respect to appellee Kappa Chapter. It is not challenged by anyone that Kappa Chapter was the social host of the function at which appellant was served alcohol. Rather, it is maintained by appellee that the trial court was correct in finding that appellee possessed no duty of care to the neighboring Lambda Chi Alpha house, and did not proximately cause the fire through its contribution to appellant’s intoxication. We find error in this analysis.

Duty, as noted above, is predicated upon the ability of an actor to reasonably foresee the possibility of harm to others as a consequence of his conduct. Zanine, supra. Only where the unforeseeability of harm is clear, may a court find no duty as a matter of law. Migyanko, supra. Under the facts as pled, we cannot find that the harm to the Lambda Chi Alpha house was unforeseeable as a matter of law as a result of Unterberger’s intoxication. The propensities of alcohol consumption to create aggressive, combative, and often reckless behavior in adults is legendary; surely, it cannot be averred that such behavior is any less likely to result from the consumption of alcohol by those deemed legally incompetent as a class to handle its effects. This Court perceives no meaningful distinction between the conclusion reached by Congini Court, i.e. that intoxicated minors are likely to operate motor vehicles while under the influence, creating a foreseeable risk of harm to life and property, and the likelihood that intoxicated minors will damage property through other means. While, as appellant himself concedes, the mechanism of harm more reasonably foreseen from the intoxication of minors might involve the breaking of windows, or destruction of contents, of a neighboring building, this does not preclude a finding that the fire was a reasonably foreseen consequence of appellant’s intoxication. It is well settled that the peculiar way in which an injury may result is not material to a finding of foreseeability, provided there existed a foreseeable probability of injury to one within the ambit of danger. Masciangelo v. Dolente, 222 Pa.Super. 368, 295 A.2d 98, 99 (1972). Rather, the peculiar mechanism of harm to the Lambda Chi Alpha house, the negligent setting of a fire, would appear a more relevant inquiry in regard to the issue of proximate causation.

The trial court held that, as a matter of law, appellee’s serving of alcohol to appellant did not proximately cause the fire. We cannot concur. It is only when reasonable minds could not differ that the issue of proximate causation is to be removed from the jury’s consideration. Little, supra. We cannot find, under the facts as pled, that appellant’s intoxication as a result of the Kappa Chapter party was so remote an event from the fire, that the serving of alcohol by appellee could not possibly be determined by a jury to have been a substantial factor in the setting of the fire. Moreover, appellee only raised the question of duty in its preliminary objections, and did not aver the absence of proximate causation as a matter of law. Matters not raised in preliminary objections are not to be considered by the court sua sponte. Goodrich Amram 2d § 1028(a):l. As such, the trial court should not have determined that appellee’s service of alcohol to appellant was not the proximate cause of the fire as a matter of law.

In light of the foregoing, we deem the trial court’s determination that the facts as pled failed to state a viable cause of action in negligence against Kappa Chapter, to be error. Any determination at this stage that Kappa Chapter had no duty, and did not proximately cause the fire, as a matter of law, is premature prior to the conduct of discovery into the events which took place on the evening in question.

Hence, we enter the following order. The trial court’s dismissal of Sigma Chi and Bucknell as additional defendants is affirmed. The trial court’s dismissal of Kappa Chapter is reversed, and the joinder complaint is reinstated as to Kappa Chapter only. Appellant is directed to amend the joinder complaint within thirty (30) days of this order to reflect that Kappa Chapter is the sole additional defendant, in accordance with this opinion. Jurisdiction is relinquished.

      . See 18 Pa.C.S. § 6308.

      . Appellant has also argued for the extension of vicarious civil liability to Sigma Chi on an agency theory. Appellant contends that Kappa Chapter was the agent of Sigma Chi, and held the party in question to promote Sigma Chi, thereby permitting Sigma Chi to be held liable as the vicarious "server or furnisher” of the alcohol served to Unterberger by Kappa Chapter. We decline to reach the merits of appellant’s agency theory.
      While it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or, if unauthorized, were ratified by the principal. See P.L.E. Agency § 174. More importantly, an agent who is not a servant is not subject to any right of control by his principal over the details of his conduct, and the principal is not liable for harm caused by the agent’s unauthorized negligent physical conduct. Gajkowski v. Int’l Brotherhood of Teamsters, 350 Pa.Super. 285, 302-303, 504 A.2d 840, 849 (1986); Smalich v. Westfall, 440 Pa. 409, 269 A.2d 476, 481 (1970); Restatement (Second), Agency § 250.
      In the matter sub judice, appellant has only alleged that Kappa Chapter was Sigma Chi’s agent, was promoting Sigma Chi, and was regularly serving alcohol to minors at fraternity parties, which was known by Sigma Chi. There are no allegations to the effect that Sigma Chi either authorized, or ratified by acquiescence, Kappa Chapter’s serving of alcohol at the party in question, or retained any control over the physical activities of Kappa Chapter as Kappa Chapter’s "master" or "employer”. Hence, we deem the factual allegations of the complaint insufficient as a matter of law to place the issue of agency before this Court, and decline to resolve whether a national fraternal organization could ever be held liable for the service of alcohol to minors by its local chapter, on an agency theory.


source: Caselaw Access Project

author: BROSKY, Judge: WIEAND, Judge,

license: Public Domain

text:
    535 A.2d 1101
    Joseph ROMEO and Angela Romeo v. Theresa LOOKS and Sherry Rose. Appeal of Theresa LOOKS.
    Superior Court of Pennsylvania.
    Argued June 8, 1987.
    Filed Dec. 29, 1987.

      Maria M. Cook, York, for appellant.

      Timothy A. Shollenberger, Harrisburg, for appellees.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from an order denying a Petition to open a default judgment.

Appellant contends that the lower court erred in entering the Order refusing to open the default judgment entered against her and challenges the trial court’s jurisdiction on the ground that court-ordered substituted service was invalid. In the alternative, she claims that even if the court-ordered substituted service was valid so as to give the court personal jurisdiction over her, her lack of receipt of actual notice of the suit constitutes a reasonable excuse for her failure to answer the complaint, and the trial court abused its discretion in failing to open the default judgment entered against her. We affirm.

The procedural path which this matter has traveled up to the entry of the Order denying appellant’s Petition to open is as follows:

On March 10, 1982, a writ of summons was issued against appellant and Sherry Rose. On March 16, 1982, the Sheriff of York County, Pennsylvania, pursuant to deputization by the Sheriff of Cumberland County (where suit was instituted) served the summons upon appellant’s mother, Mrs. Looks, at 625-A Colony Drive, York, Pennsylvania. On August 9,1982, a Complaint was filed against appellant and Ms. Rose. The Sheriff of York County, by Affidavit, indicated his inability to locate appellant in York County. On October 13, 1982, the Complaint was reinstated against appellant with a directive to serve her at R.D. # 1, Port Treverton, Pennsylvania. However, the Sheriff of Snyder County, Pennsylvania, who was deputized to serve appellant at that address, filed an Affidavit of Service indicating that appellant could not be found there. He further noted on the return of service that appellant “is living with her mother in York, Pennsylvania.” The record, however, does not inform us of the source from which (or whom) the Snyder County Sheriff obtained this latter piece of information.

On November 29, 1983, an order was entered pursuant to 42 Pa.C.S.A. § 5323(a)(5) directing service of process upon appellant by serving

(a) Secretary of the Commonwealth of Pennsylvania.
(b) Department of Motor Vehicles;
(c) Charlotte Looks, Defendant Teresa [sic] Looks’ mother;
(d) Federal Kemper, Defendant Teresa [sic] Looks’ insurance company, and more specifically, J.T. Tomalty, the insurance adjustor handling this claim on behalf of Defendant Teresa [sic] Looks;
(e) G. Thomas Miller, Counsel for Defendant Teresa [sic] Looks in the above-captioned action;
and further, by making publication in a newspaper with general circulation serving the area of York, Pennsylvania, and East Rutherford, New Jersey. (Order of November 29, 1983).

In support of their Motion to Direct Manner of Service pursuant to 42 Pa.C.S.A. § 5323(a)(5), appellees asserted that they had examined telephone directories in York and surrounding counties for appellant’s name and address, had sent, by certified letter dated October 4, 1982, a copy of the Complaint to the Meadowlands Racetrack in East Rutherford, New Jersey but to no avail, and had contacted the Postmaster of York, Pennsylvania, for information regarding appellant’s current address. Finally, by a letter addressed to Federal Kemper Insurance. Company, appellant’s automobile insurer, appellees’ counsel requested that entity to reveal the whereabouts of appellant.

This Motion was subsequently amended on January 2, 1984, to delete the name of G. Thomas Miller, Esquire, because of his noninvolvement with the instant suit insofar as representation of appellant was concerned.

Appellant finally contacted Federal Kemper’s counsel through a series of complicated channels involving Mr. Marietta, who succeeded in making contact with appellant’s mother at the latter’s new Florida residence. Mrs. Looks, in turn, contacted some unknown persons in the horse racing business who were able to reach appellant. Appellant was informed by these unidentified persons to communicate with Mrs. Looks. When appellant did communicate with Mrs. Looks, the latter advised her to call Mr. Marietta. Appellant complied and requested Mr. Marietta to have counsel call her at her telephone number in Florida. Counsel, according to Mr. Marietta, did call appellant (Looks’ Deposition, 17-18; Deposition of William R. Marietta, 16-20). Counsel then filed the subject Petition to open on behalf of appellant which was subsequently denied. This appeal followed.

I.

Our threshold inquiry is whether the court-ordered substituted service of process was valid, thus resulting in the trial court’s obtaining personal jurisdiction over the appellant. If service is found to have been valid, then it is appropriate to inquire as to whether the default judgment should be opened, i.e. whether appellant has a reasonable excuse for failing to respond to the complaint. See Rubin v. Nowak, 367 Pa.Super. 629, 533 A.2d 451 (1987) (if trial court determines service valid, it then has personal jurisdiction over defendant).

We determine, first, whether the trial court obtained personal jurisdiction over the appellant. 42 Pa.C.S.A. § 5323 provides in relevant part:

§ 5323. Service of process on persons outside this Commonwealth.
(a) Manner of service. — When the law of this Commonwealth authorizes service of process outside this Commonwealth, the service, when reasonably calculated to give actual notice may be made:
(5) As directed by a court.

(Emphasis supplied).

The phrase “reasonably calculated” is undefined in the Judicial Code, nor have we uncovered any appellate decision in this Commonwealth construing this term in light of § 5323. Hence, it is necessary to resort to defining this phrase in terms of its common, ordinary and approved usage. Barasch v. Pa. Pub. Utl. Comm., 507 Pa. 430, 490 A.2d 806 (1985).

Webster’s New Collegiate Dictionary (1980) defines the word “reasonably” as “in a reasonable manner ... ”; “to a fairly sufficient extent — ” Id. at 1892. This same source defines “reasonable” as “not conflicting with reason: not absurd: not ridiculous ... being or remaining within the bounds of reason: not extreme: not excessive ... rational ... sensible----” Id. Webster’s also provides the following definition for “calculated.” “Likely — used with complementary infinitive____” Id. at 154.

Due process, reduced to its most elemental component, requires notice. The adequacy of this notice, as applied to substituted service, depends upon whether it is reasonably calculated to give the party actual notice of pending litigation. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940); Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985) (Wieand, J.); Stateside Machinery Co., Ltd. v. Alperin, 591 F.2d 234 (3d. Cir.1979); Kittanning Coal Co. v. International Mining Co., 551 F.Supp. 834 (W.D.Pa.1982); McCully-Smith Assoc., Inc. v. Armour & Co., 358 F.Supp. 331 (W.D.Pa.1973).

While Noetzel did not implicate § 5323(a)(5), it adopted the Third Circuit’s due process analysis of the “actual notice” language as it is used in the statute.

As long as the method of service is reasonably certain to notify a person, the fact that the person nevertheless fails to receive process does not invalidate the service on due process grounds.

Noetzel, 338 Pa.Super. at 469, 487 A.2d at 1377-78, citing Stateside Machinery, supra, (emphasis supplied). From this, it logically follows that service “reasonably calculated to give actual notice” is that which is reasonably certain to notify a defendant of litigation pending against him. See Noetzel, supra. See also Kittanning Coal, supra. Hence, if we find that the methods of substituted service here employed were reasonably calculated to give appellant actual notice of the instant suit, we can then be satisfied that process was reasonably certain to reach her. This, in turn, depends upon what is reasonable under the circumstances, considering the interests at stake and the burdens of providing notice. Noetzel, supra.

Before resort to substituted service may be had, however, a plaintiff must have demonstrated a good faith effort to locate the defendant through more direct means, Kittanning Coal, supra, and must comply with the provisions of the long-arm statute. See Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 346 A.2d 798 (1975); Stateside Machinery, supra.

The Note accompanying Pa.R.C.P. 2079, which Rule was in effect at the time of appellees’ application to the trial court for substituted service pursuant to § 5323(a)(5), sets forth examples of good faith efforts to locate a defendant through regular means.

An illustration of good faith effort to locate the whereabouts of the defendant includes (1) inquiries of postal authorities, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and (3) examinations of local telephone directories, voter registration records, local tax records, and motor vehicle records.

See also Kittanning Coal, supra.

Appellant urges upon us that

none of the methods ordered by the Court below had a likely chance of success. Defendant Looks was not a Pennsylvania resident, and did not carry a valid Pennsylvania drivers’ license, so that service on the Secretary of the Commonwealth or the Department of Motor Vehicles would be to no avail. Neither Defendant Looks’ mother, nor Federal Kemper agent J.T. Tomalty knew of Defendant Looks’ whereabouts, so that service on either of them had little chance of reaching Defendant Looks. Publication of service in Pennsylvania and New Jersey newspapers had no chance of reaching Defendant Looks as she was not residing in either state. In fact, Defendant Looks was never notified of or served with the Complaint through the use of any of the ordered methods.

Appellant’s Brief, p. 18.

We are unpersuaded by this argument. To conclude otherwise would be tantamount to engaging in a post hoc analysis of appellant’s purported predicament of which she, alone, was aware at the time appellees attempted the various methods of service upon her. Were we to adopt appellant’s line of reasoning, we would, in effect, be rendering mere lip service to court-ordered substituted service. This we decline to do. Valid service reasonably calculated to provide appellant with actual notice of suit is not, in our view, impaired by her claimed inability to actually receive notice. The due process clause does not require more than this, see Milliken v. Meyer, supra, and neither do we.

The record before us discloses that appellees have satisfied the above suggested preconditions to requesting and obtaining court-ordered service pursuant to § 5323(a)(5). See appellees’ Motion to Direct Manner of Service dated November 29, 1983. For example, when appellees failed to obtain a return receipt evidencing that appellant had received a copy of the Complaint sent to her certified mail at the Meadowlands Racetrack in East Rutherford, New Jersey, when the complaint had, instead, been returned to appellees’ counsel with the notation “unclaimed”, appellees then caused the trial court, and properly so, to order publication in a newspaper of general circulation in East Rutherford, New Jersey.

Similarly, when the Sheriffs of York and Snyder Counties were unable to serve appellant either in York or Port Treverton, Pennsylvania, appellees requested the trial court to order publication of their law suit in a newspaper of general circulation in York. Thus, we cannot say that the service upon appellant via newspaper publication in those two locales was not reasonably calculated to provide her with actual notice of the instant suit. See Kittanning Coal Co., supra. Based upon the information appellees had in their possession at the time they applied to the trial court for an order pursuant to § 5323(a)(5), either York or Port Treverton, Pennsylvania, was the place where appellant maintained her residence or had a close relative who maintained a residence there. The East Rutherford, New Jersey location was her place or former place of employment where, we can reasonably assume, her employer and/or co-workers or friends knew of her or her whereabouts.

Appellees’ Motion for court-ordered service also requested service on the Commonwealth of Pennsylvania Department of Motor Vehicles. Since appellant owned a motor vehicle while she was in Pennsylvania and the mishap occurred with her vehicle in this Commonwealth, it was rational to assume that the Department had a current address for her and would notify her of the pending suit— again, a method of service which appellees, based upon their knowledge of appellant’s habits and whereabouts at that time, were not incorrect in assuming was reasonably calculated to give appellant actual notice.

Service upon Federal Kemper, as appellant’s motor vehicle insurer, was also proper, as it was reasonably expected that notice of the action would be transmitted to appellant. See Snyder v. Marion, 19 Pa.D & C 3d 352 (Adams Co. 1981). Indeed, Federal Kemper did make telephone contact with appellant who was residing in Florida. The fact that Federal Kemper only succeeded after a default judgment had been entered against appellant is of no moment, since service upon Kemper was reasonably calculated and did operate to provide appellant with the statutorily and constitutionally required notice.

Based upon the foregoing and the record before us, we are satisfied that appellees demonstrated the prerequisite good faith diligence in attempting to serve appellant and that service upon her pursuant to § 5323(a)(5) was reasonably calculated to provide her with the requisite actual notice. We conclude, therefore, that the methods of service effected upon her were not rendered invalid merely because they failed to give her actual notice. Therefore, we hold that the trial court obtained personal jurisdiction over appellant by virtue of the service effected pursuant to the trial court’s order of November 29, 1983.

II.

Having so found the court-ordered substituted service to be valid here, we are still left to consider appellant’s assertion that she did not receive actual notice of the complaint and that the judgment should be opened for that reason. We begin by noting that a Petition to open a default judgment appeals to the court’s equitable powers. It is a matter of judicial discretion which an appellate court will not reverse absent an error of law or a manifest abuse of discretion. Schultz v. Erie Ins. Exch., 505 Pa. 90, 477 A.2d 471 (1984); Estate of Levy by Levy v. CNA Ins. Co., 338 Pa.Super. 191, 487 A.2d 919 (1985). A successful Petition to open requires proof of prompt filing after entry of the default judgment, a reasonable excuse for failing to file an answer or enter an appearance and the proffering of a defense on the merits. Id. Appellant asserts as to her excuse for failing to file that she did not receive actual notice of the proceedings against her.

At this juncture, we are quick to point out that this is not a case where the validity of substituted service is successfully attacked by means of a Petition to open a default judgment because a local rule of court relating to substituted service was disregarded. See U.S. Dept, of Housing v. Dickerson, 358 Pa.Super. 23, 516 A.2d 749 (1986). Nor is this a situation where a petitioner is asserting that service was never attempted on him. See Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979) (deposition of appellant discloses that no employee of appellant ever served; deposition of deputy sheriff who purportedly made service reveals that he did not bother, because of his haste, to check whether person served with complaint was actually connected with appellant’s business, resulting in opening of default judgment due to improper service); Johnson v. Atlas Van Lines, 274 Pa.Super. 253, 418 A.2d 392 (1980) (district justice admits failure to send copy of process to appellant as required by predecessor long-arm statute § 8307; opening of judgment mandated because of lack of notice of suit due to failure to properly serve appellant). Under these circumstances, distinguishable from the instant fact pattern, a court may properly and without hesitation open an erroneously entered default judgment to permit a defense to be pleaded. Dickerson, supra; Liquid Carbonic Corp., supra.

It is also true that a party may successfully attack in a Petition to open a default judgment lack of knowledge of a lawsuit for reasons other than the impropriety of service when, in fact, service was valid. For example, in Donatucci v. Utterback, 264 Pa.Super. 49, 398 A.2d 1051 (1979), a complaint was purportedly left for defendants at their residence. They were not at home at the time, did not know of the identity of the person who had accepted service and alleged that no one was in charge of their residence at that time. The Sheriffs return indicated that the complaint was served on an adult who refused to identify himself. Thus, while service was procedurally proper, defendants were unaware that any proceedings had been instituted against them. Moreover, the Donatucci court concluded that since the trial court had decided the Petition without the taking of depositions or presentation of oral argument pursuant to Pa.R.C.P. 209, defendants should be entitled to offer evidence of their lack of knowledge of the suit.

Similarly, in Maurice Goldstein, Inc. v. Margolin, 248 Pa.Super. 162, 374 A.2d 1369 (1977), upon which Donatucci relies, service, again procedurally correct, was purportedly made upon defendant by serving the apartment house manager who, in turn, allegedly failed to give the complaint to defendant. As in Donatucci, the Margolin court also concluded, in reversing the denial of defendant’s Petition to open, that the action of the trial court in denying the Petition was premature. Defendant had not been given the opportunity to substantiate his claim of lack of notice because no depositions had been taken, nor had the matter been set down for oral argument pursuant to Pa.R.C.P. 209.

Finally, in Campbell v. Heilman Homes, Inc., 233 Pa.Super. 366, 335 A.2d 371 (1975), also cited by the Donatucci court, the trial court did conduct a hearing on defendant’s Petition to open. Service there, while procedurally correct, failed to notify the defendant of the action against it. The defendant’s sales manager, upon whom service of the Complaint was made, failed to follow the procedure for relaying important documents received by the sales office to the home office. The involved sales manager was not reporting for work as scheduled, leading to his ultimate discharge. It was not until his replacement examined the files in the sales office and located the Complaint that that document was forwarded to appellant’s home office for attention by its attorney. The Campbell court, in reversing the trial court’s denial of the Petition to open, noted that defendant’s failure to respond to the Complaint was categorized as an unintentional omission, not unlike a clerical error, due to the inattentiveness or neglect of an employee.

Thus, the scenarios delineated in the three above-cited cases are distinguishable from the procedural posture of the instant one. The Donatucci and Margolin courts held that the records in each case were not ripe to support the trial judges’ assessment of defendants’ failure to excuse the delay in not responding to the respective plaintiffs’ complaints because defendants there were not accorded the opportunity to prove their claims of excusable delay by either the taking of depositions or presentation of oral argument on Petition and Answer pursuant to Pa.R.C.P. 209. The denials of the Petitions to open in those cases were reversed to permit further development of the record by utilizing one of the methods set forth in Rule 209. Instantly, appellant’s deposition was taken, at which time she was afforded the opportunity to substantiate the allegations of her Petition.

The matter sub judice is also inapposite to the Campbell case since nowhere in the record do we find any indication that appellant was not informed or did not receive notice because of neglect, omission or oversight. Her insurer, Federal Kemper, made every diligent effort possible to locate her. {See, generally, Deposition of William R. Marietta). Mr. Marietta also indicated that Mrs. Looks was anticipating hearing from appellant and did finally succeed in establishing contact with her, thus leading to appellant’s phone call to Mr. Marietta. (Id.)

Moreover, in none of those cases was service effectuated pursuant to § 5323(a)(5). Instead, process was served by direct means without the aid of the trial court. However, since court-ordered substituted service implicates, by its very nature, a less direct method of service, process can only be deemed reasonably certain to reach a defendant. This is because service pursuant to § 5323(a) may be effectuated only after a plaintiff has exhibited to the satisfaction of the trial court that the more direct, traditional methods of service have failed. By serving persons (friends, relatives, employers, former employers, co-workers or former co-workers) other than an elusive defendant, a hopeful plaintiff can only reasonably assume that the person whom he is suing will contact that friend, relative, employer or co-worker, or, as in the instant case, the insurance carrier or vice versa.

Appellant admitted being in each locale where substituted service was ordered to be made. But, according to her testimony, she only happened to have moved away from each locale just before service of the Complaint was attempted on her (see, generally, Looks’ Deposition). She also indicated that her mother had moved from the York, Pennsylvania address in approximately April, 1982 (Looks’ Deposition 51), thus implicating that she (appellant) could not have received mail or process there at the time service would have been made upon her mother as ordered by the trial court on November 29, 1983.

In American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1984), we held that when evidence is premised solely upon deposition testimony, this Court may reevaluate that evidence to determine if the trial court’s decision is supported by the record. The holding of that case appears in the context of determining that a Sheriff’s return indicating that the deputy had served an adult female at defendant’s residence who refused to identify herself was conclusive of service. The court went on to conduct an independent examination of the deposition of defendant who stated that he was away at the time of service, that he lived alone, that his mother had a key to his residence but that he did not think she would have been there on that day because she may have been working, that he never received notice from the Prothonotary that a judgment had been entered against him, never received notice of intent to seek a default judgment and could not remember exactly when he received a letter from a legal aid society advising him of his legal predicament. The court there, after making an assessment of defendant’s deposition testimony, determined that defendant was indeed served as the Sheriff’s return had indicated that he was.

While factually and procedurally different from the case at bar, nevertheless, we find American Express instructive. Appellant’s proffer of excuse for not timely responding to suit was based solely upon her deposition testimony.

[T]he lower court’s Order ... is premised upon record [deposition] evidence, i.e., no credibility determination or weight to be attached to a witness’ testimony was required inasmuch as no witnesses testified before the trier of fact. Therefore, since the finding of fact ... was simply a deduction from other facts and the ultimate fact in question is purely a result of reasoning, this Court may draw its own inferences and arrive at its own conclusions from the facts established, [citation omitted]

Id., 328 Pa.Superior Ct. at 172, 476 A.2d at 947; emphasis supplied.

The above-cited rationale is equally applicable here. Having so determined, we now proceed to analyze appellant’s deposition to consider whether the trial court abused its discretion in finding that appellant had not proffered a reasonable excuse for failing to answer the complaint. Our assessment leads us to the unqualified conclusion that the trial court did not abuse its discretion.

First, appellant admits in her deposition that she was aware that her car had been involved in an accident and that a claim against her was being made (Looks’ Deposition 23-24). She and her mother both knew of the damage to the former’s automobile (Id. 35), and at the time the accident was reported, appellant gave the investigating police officer her home address at Port Treverton (Id. 36). Moreover, her testimony concerning contact with her mother from 1980 until 1984 is contradictory. She initially asserted that she had no contact with Mrs. Looks during this period (Id. 15). Later, she indicated that she contacted Mrs. Looks in the Summer of 1982 (Id. 32) and thereafter at least every six months (Id. 33). She further stated that she knew that Mrs. Looks was in Florida since at least the Summer of 1982. (Id. 39).

We recognize that these contacts and the reporting of the accident to the police, standing alone, are insufficient to provide a basis for concluding that appellant actually knew of the pending lawsuit without the aid of court-ordered service. We consider especially significant, however, the fact that when Mr. Marietta contacted Mrs. Looks at her residence in Florida, the latter apparently had no difficulty reaching people in appellant’s business who knew where appellant could be found. Based upon information from these persons, appellant then called her mother who informed her of the necessity to contact Mr. Marietta. (Id. 17). Appellant’s deposition reveals the following:

Q How did you know to contact Mr. Marietta, or how did you know that someone by that name was looking for you?
A. I did not. Like I said, he contacted my mother. My mother contacted some people that knew me in the business and asked me to call my mother. Then my mother said that Mr. Marietta had found it advisable for me to talk to him, so I did.

(Id. 17-18; emphasis supplied).

From this, we find that it would be stretching the bounds of reason too far were we to conclude that Mrs. Looks did not know of her daughter’s whereabouts or, at least, could have easily ascertained her whereabouts during the entire time when service, both direct and substituted, was attempted upon appellant. We also consider it a bit too incredible that Mrs. Looks, appellant’s mother, did not inform her daughter of the pending suit, either as a result of service upon Mrs. Looks, herself, or at least from her knowledge of the accident, and that personnel from Federal Kemper or its agents were attempting to reach appellant. We deem it rather significant, too, that appellant never denied being in the places where service was attempted, never denied that an accident had occurred and never denied that Federal Kemper was her insurer.

We are still bound, however, to examine the two remaining prongs of the test to determine whether the equities favor the opening of the default judgment entered here. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982). Accord American Express Co., supra. Provident and its progeny remind us that each prong is not to be treated as a water-tight compartment assessed in isolation from the other parts of the test. But it would be more than difficult to imagine that the equities would favor opening a default judgment where delay in answering or otherwise pleading to a complaint has not been satisfactorily explained. Thus, where as here, a petitioner is unable to reasonably explain the delay to the satisfaction of the court, this may tip the balance of equities against him/her so as to obviate the necessity for considering the timeliness of filing the Petition or the merits of the proffered defense. Cross v. 50th Ward Community Ambulance Co., 365 Pa.Super. 74, n. 5, 528 A.2d 1369, n. 5 (1987).

Here, we have no quarrel that appellant’s Petition filed 16 days after entry of judgment would be timely. But we do not view this, nor her defense on the merits — that she was not driving the automobile on the day in question — persuasive enough to tip the balance of equity in her favor, see Provident, supra; American Express, supra, in view of the good-faith attempts of appellees to serve her, directly and indirectly, through persons likely to know her whereabouts and at locales where she was likely to have resided or worked.

In view of the foregoing considerations, we affirm the Order of the trial court denying appellant’s Petition to open the default judgment entered against her.

Order affirmed.

WIEAND, J., files a dissenting opinion in which McEWEN, J., joins.

WIEAND, Judge,

dissenting:

The majority, in this case of court-ordered, substituted service, refuses to accept the defendant’s lack of knowledge of the lawsuit against her as adequate excuse for failing to respond thereto and, accordingly, refuses to open a default judgment to allow the presentation of a valid defense. Because this is contrary to the equitable principles which are applicable to petitions to open default judgments, I dissent.

On April 26, 1980, an automobile owned by Theresa Looks and operated by Sherry Rose allegedly collided with another vehicle in which Joseph Romeo was riding as a passenger. An action was commenced by Romeo against Looks and Rose in Cumberland County by praecipe for writ of summons. The summons was issued, but it was not served on Theresa Looks. Instead, it was served on her mother, Charlotte Looks, by deputized service in York County. Theresa Looks did not live with her mother. A complaint in the action was subsequently filed on August 9, 1982, but all attempts to effect personal service on Theresa Looks in York and Snyder Counties were unsuccessful. When Looks could not be found for more than a year thereafter, Romeo petitioned the trial court in Cumberland County for leave to serve Looks by substituted service under 42 Pa.C.S. § 5323(a)(5). The court granted the petition and directed that service be made by serving (1) the Secretary of the Commonwealth; (2) the Department of Motor Vehicles; (3) Charlotte Looks, the defendant’s mother; (4) the defendant’s insurance carrier, Federal Kemper Insurance Co., and its adjustor, J.T. Tomalty; and (5) G. Thomas Miller, Esquire, counsel for the insurance company. Romeo was also ordered to publish notice of the action in newspapers of general circulation in the areas of York, Pennsylvania and East Rutherford, New Jersey. Service was effected by Romeo as ordered by the court. The same persons were later served with notice of intent to enter default judgment pursuant to Pa.R.C.P. 237.1, and the notice of intent was also advertised in the areas of York, Pennsylvania and East Rutherford, New Jersey. A default judgment was subsequently entered against Looks on November 5, 1984. Less than a week later, an investigator employed by the law firm of McNees, Wallace & Nurick, which represented Federal Kemper, was able to make contact with Looks in Florida. By telephone he told her of the lawsuit and the judgment which had been entered against her.

On November 21, 1984, Looks filed a petition to open the-default judgment. She alleged that she had not received notice of the action and, therefore, had been unable to respond to it. She also alleged that she had a defense to the action in that she had not been driving her car and had not been present at the time of the accident. Finally, she alleged that Sherry Rose, the driver, had been on her own business and had not been acting as Looks’s agent. Depositions were taken in which Looks testified that she had not received actual notice of the Romeo action and had had no knowledge thereof until after judgment had been entered. The trial court found the following facts:

Looks is a horse groom. Because of the peripatetic nature of her employment, she is rarely in one location for more than a few months at a time, though for the past ten years Florida has been her home base.
On April 27, 1980, the day of the accident, Looks’ father died. Tensions in the Looks family grew, and Looks left home. Looks was unable to be located until 1984 when the combined efforts of a private investigator, Looks’ friends in the horse racing industry, and Looks’ mother induced her to contact her attorneys. By this time, however, a default judgment had been entered against her.

The trial court refused to accept Looks’s testimony that she had had no knowledge of the pending action and found, instead, that she should have received actual notice of the suit. Therefore, the court concluded, her default was unreasonable and could not be excused. Looks appealed.

I agree with the majority’s conclusion that the substituted service ordered by the trial court was reasonably calculated to give actual notice to Looks, the defendant named in the action. The service of the complaint upon Looks, therefore, was valid. Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 469, 487 A.2d 1372, 1377-1378 (1985). See: 42 Pa.C.S. § 5323(a). See also: Stateside Machinery Co., Ltd. v. Alperin, 591 F.2d 234, 241 (3d Cir.1979). The validity of the substituted service was not impaired by Looks’s failure to receive actual notice of the pending litigation. See: Noetzel v. Glasgow, Inc., supra 338 Pa.Super. at 469, 487 A.2d at 1377-1378; Action Industries, Inc. v. Wiedeman, 236 Pa.Super. 447, 458 n. 11, 346 A.2d 798, 804 n. 11 (1975). See also: Stateside Machinery Co., Ltd. v. Alperin, supra at 241; McCully-Smith Associates, Inc. v. Armour and Co., 358 F.Supp. 331, 333 (W.D.Pa.1973). Whether or not Looks received actual notice of the pending litigation, therefore, the default judgment was valid and was not subject to being stricken.

The fact that the substituted service directed by the court was reasonably calculated to give notice of the pending litigation, however, did not render the judgment immune from a petition to open the default judgment. Valid service does not conclusively show, without more, that the defendant had actual knowledge of the suit. See: Provident Credit Corp. v. Young, 300 Pa.Super. 117, 125, 446 A.2d 257, 261 (1982). Thus, “even where proper service is found, a reasonable excuse for the default may still exist and ... that determination must be made in conjunction with an examination of the other requirements of the tripartite test.” American Express Co. v. Burgis, 328 Pa.Super. 167, 181, 476 A.2d 944, 951 (1984) (Brosky, J. Concurring).

A petition to open a default judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984). Ordinarily, three factors must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973). However,

a court should not blinder itself and examine each part [of the tripartite test] as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead the court should consider each part in light of all the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

Provident Credit Corp. v. Young, supra 300 Pa.Super. at 131, 446 A.2d at 264. Moreover, the rules authorizing a default judgment were not meant to allow a plaintiff to secure a judgment without the attendant difficulties of litigation, but rather were aimed at preventing a dilatory defendant from impeding the plaintiffs efforts to establish a claim. Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa.Super. 115, 123, 419 A.2d 688, 692 (1980). Nevertheless, a trial court’s refusal to open a default judgment will not be reversed absent an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 131 (1971).

That Looks’s petition to open the judgment was promptly filed is without question in this appeal. The petition was filed only sixteen days after the default judgment had been entered, and ten days after appellant was contacted by the law firm’s investigator. Appellant has also alleged the rather compelling defense, if proved, that her car was being driven by another person, not her agent, at the time of the accident. The remaining issue and the one causing the controversy in the trial court is whether appellant offered a reasonable excuse for her failure to appear and file a timely answer to the complaint.

The law is clear in this and other jurisdictions that “although service of process may be good, nevertheless, a person may assert lack of knowledge of the suit for reasons other than improper service in seeking to have a default judgment opened.” Donatucci v. Utterback, 264 Pa.Super. 49, 52, 398 A.2d 1051, 1052 (1979). See also: Brown v. The Great Atlantic & Pacific Tea Co., 314 Pa.Super. 78, 81, 460 A.2d 773, 775 (1983) (absence of actual notice that a complaint has been filed sufficient to require the opening of default judgment); Provident Credit Corp. v. Young, supra, 300 Pa.Super. at 125, 446 A.2d at 261 (valid return of service does not invariably demonstrate actual knowledge of suit); Maurice Goldstein Co., Inc. v. Margolin, 248 Pa.Super. 162, 165, 374 A.2d 1369, 1371 (1977) (proof of service does not preclude a defendant from proving lack of notice).

In Donatucci v. Utterback, supra, a default judgment was entered against defendants who had failed to respond to the plaintiffs complaint. The defendants filed a petition to open the judgment, arguing that although “the sheriffs return of service of the complaint was regular on its face,” they “had no notice of the action until they were advised by their attorney that judgment had been entered against them.” Id.., 249 Pa.Superior Ct. at 51, 398 A.2d at 1052. Because the defendants admitted the validity of the service, the trial court found that the default could not be excused by a failure to receive actual notice and denied the requested relief. On appeal, this Court reversed. Because the trial court had decided the case “solely on the basis that good service was admitted,” the Superior Court remanded to afford the defendants “an opportunity to offer evidence of lack of knowledge of the suit in order to establish the reason for their failure to file an answer to the complaint within the period of time allowed for that purpose.” Id. 264 Pa.Super. at 52, 398 A.2d at 1052. Although Donatucci came before the Superior Court in a slightly different procedural posture than the instant case, the import of the Donatucci decision is clear. , Even though service is valid, the failure to receive actual knowledge of the suit is an adequate excuse for the default.

Other jurisdictions adhere to the same principle. See, e.g., Rossten v. Wolf, 14 Ill.App.2d 322, 144 N.E.2d 757 (1957) (defendants’ lack of knowledge of suit may excuse default, notwithstanding valid.substituted service); Fitzgerald v. Brown, 168 Ind.App. 586, 344 N.E.2d 309 (1976) (lack of actual notice of the proceedings is sufficient to justify opening default judgment); National Car Rental v. S & D Leasing, Inc., 89 Mich.App. 364, 280 N.W.2d 529 (1979) (lack of actual notice of counterclaim is sufficient to set aside default judgment entered thereon); Graybar Electric Co., Inc. v. Rice, 287 S.C. 518, 339 S.E.2d 883 (1986) (defendant’s lack of actual knowledge of lawsuit excused default, notwithstanding valid service of process); Plumley v. May, 140 W.Va. 889, 87 S.E.2d 282 (1955) (Florida resident’s lack of actual knowledge of lawsuit excused default, notwithstanding valid service of process made pursuant to West Virginia non-resident motorist statute).

The critical issue in the analysis, then, is whether Theresa Looks had actual knowledge of the suit commenced against her by Joseph Romeo. There is in this record no evidence whatsoever that appellant had knowledge of the litigation pending against her. She testified in depositions regarding her nomadic existence as a horse groom and said that she had not received actual notice of the suit and did not learn of it until after a default judgment had been entered against her. She said that she and her mother had had some differences and were not close, that her mother did not know where to reach her, and that, on the several occasions when she had called her mother, she was not told that a suit was pending against her. Representatives of Federal Kemper also testified that appellant’s whereabouts were unknown to them and that they were unable to find or contact her until after a default judgment had been entered against her. This evidence was uncontradicted. The trial court nevertheless rejected appellant’s testimony and determined, without any evidence to support its finding, that appellant had had actual knowledge because her mother must have told her of the pending litigation. This finding was wholly speculative and was unsupported by any evidence. It was, in my judgment, an abuse of discretion. All the testimony was that Looks did not have actual notice or knowledge of the Romeo action. There was not one iota of evidence to the contrary.

The trial court’s determination that appellant’s testimony was not credible was based upon an examination of her deposition testimony. The court did not have the opportunity to observe Looks as she testified, and its review of her testimony was limited to a review of the same typewritten transcript which is now before this Court. “Although a determination of credibility is in the first instance within the prerogative of the trial court, even when based upon deposition evidence, this does not foreclose an appellate court from scrutinizing the identical evidence to determine if the ruling entered is supported by the record.” American Express Co. v. Burgis, supra 328 Pa.Super. at 172, 476 A.2d at 947. Appellate courts are not bound by findings of a trial court which are wholly lacking in evidence. Cf. Commonwealth v. Hamlin, 503 Pa. 210, 215, 469 A.2d 137, 139 (1983); Commonwealth v. Hall, 475 Pa. 482, 486, 380 A.2d 1238, 1240 (1977).

Because the record in the instant case contains no evidence that Looks had actual knowledge of the Romeo lawsuit, I would hold that her default was adequately explained and that the trial court, by refusing nevertheless to excuse it, committed an abuse of discretion. Because Looks also has a compelling defense to appellee’s action and acted promptly to open the default judgment after learning of it, I would reverse the trial court and order the judgment opened to allow her to present a defense to the cause of action stated against her by Romeo.

In reaching this conclusion, I am guided in part by the wisdom of the Supreme Court’s observations in Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971), where the Court said:

In determining whether a default judgment is to be opened and a defendant let into a defense, we bear in mind two principles of the law: (a) that the entry of a judgment by default finds its authority in the law (Pa.R. C.P. §§ 1037, 1047, 1511), 12 P.S. Appendix and (b) that, even though authorized by the law, such judgments are subject to opening if equitable considerations so demand. In determining whether a judgment by default should be opened, we must ascertain whether there are present any equitable considerations in the factual posture of the case which require that we grant to a defendant against whom the judgment has been entered an opportunity to have his [or her] “day in court” and to have the cause decided upon the merits. In so doing, we act as a court of conscience.

Id., 443 Pa. at 111, 277 A.2d at 147. And again:

“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”

Id., 443 Pa. at 111, 277 A.2d at 147, quoting Coggin v. Barfield, 150 Fla. 551, 554, 8 So.2d 9, 11 (1942).

A court of conscience, as this Court is called upon now to act, should most certainly open the default judgment in this case. The default judgment was entered against the owner of a vehicle which was alleged to have been involved in a collision at a time when the owner was not present and while her vehicle was being operated by another person for such other person’s purposes. The litigation was undefended, thereby resulting in a default judgment, because the owner of the vehicle was unaware that an action had been commenced against her. I cannot imagine any scenario more compelling of equitable relief than the scenario presented by the instant case.

Therefore, I dissent. I would reverse, order the default judgment opened, and remand for further proceedings.

McEWEN, J., joins.

      . Ms. Rose is not a party to this appeal.

      . See footnote 1, supra.

      . Appellees’ Motion states that the East Rutherford address was obtained from appellant’s mother after a Notice to take Mrs. Looks’ deposition was served upon her. However, since the record discloses no such Notice of Deposition, we must assume that the notice was never filed. We can assume, however, that some contact with Mrs. Looks must have been made because the Motion contains as an Exhibit a copy of an envelope addressed to appellant at the East Rutherford address returned unclaimed as well as a request for publication in an East Rutherford, New Jersey newspaper.

      . This letter does not appear of record. However, the Deposition of William R. Marietta indicates that he was contacted by G. Thomas Miller, a member of the law firm which employed Mr. Marietta. Mr. Miller informed Mr. Marietta that he represented appellant in connection with an accident occurring in April, 1980 and that he needed to contact appellant in order to properly defend her. (Deposition of William Marietta, 8). Although Mr. Marietta indicated that he was never directly contacted by Federal Kemper, it is evident that the law firm which employed him also represented Federal Kemper Insurance Company as is noted on the title page of the Deposition of Mr. Marietta.

      . It is evident, however, that Federal Kemper counsel did not abandon appellant’s defense once appellant made contact with Mr. Marietta and Mr. Miller, as is apparent from its representation of her at the depositions of Mr. Marietta, Mr. Lamplugh, a supervisor for Federal Kemper and appellant, herself. Counsel for Federal Kemper also filed on her behalf the subject Petition to open and the instant Notice of Appeal to this Court. This is in keeping with counsel for Federal Kemper’s position that the latter might once again defend her pending appellant’s communication and cooperation with counsel and/or Federal Kemper (Plaintiff's (appellees’) Deposition Exhibit No. 1, Deposition of Theresa Looks, hereinafter referred to as "Looks’ Deposition”).

      . Appellant’s experiences in this regard relate to service attempted on her through traditional, direct means as well as the court-ordered substituted service.

      . Appellant bases her defense upon the lack of an agency relationship with Sherry Rose. However, appellees do not premise their claim upon such a relationship. Rather, they allege that appellant permitted Sherry Rose to operate the former’s vehicle negligently, carelessly and recklessly. Moreover, in her deposition, appellant appears to have recanted the allegation she made in her Petition to open that she knew that Sherry Rose was, indeed, operating her vehicle on the day in question. (Looks’ Deposition 25-27).
      We also ponder, incidentally, the whereabouts of the even more elusive Sherry Rose. If she had any independent existence at all, Ms. Rose seems to have somehow vanished into the bowels of the earth. We would consider a defense based solely upon imputation of liability to someone whose very existence and whereabouts remain a mystery to be, at best, a rather tenuous one.

      . The order was subsequently amended to remove the requirement of service upon G. Thomas Miller, Esquire.

      . Looks also testified that Sherry Rose had had permission to use her car whenever Rose wanted it, that Rose did not tell her that the car had been in an accident, that the car had not been damaged, that she learned of a possible accident when a policeman asked to see her car, and that the policeman, after examining her car, told her that he didn’t believe the car had been in an accident. Shortly thereafter, she and Sherry Rose lost touch with each other, and Looks forgot about the incident. Even if, as the trial court found, appellant knew or should have known that her car had been in an accident, it cannot be inferred therefrom that she also had knowledge that she had been sued by Romeo, whom she had never met and who was a total stranger to her.

      . The majority, in its zeal to sustain this default judgment, has conjured up various possibilities by which the defendant might have obtained such knowledge. In fact, however, the majority has been unable to point to any evidence whatsoever to show that appellant had actual notice of the litigation or that she acquired knowledge thereof at any time prior to the entry of judgment. The entire premise for denying to appellant an opportunity to defend this action, therefore, is the majority's speculation that (1) because she knew there had been an accident; and (2) because she was able to be found after a default judgment had been entered, she must have learned of the Romeo action prior to the entry of the default judgment. This reasoning, in my judgment, is not only specious but entirely speculative. It is a wholly inadequate reason for denying to appellant an opportunity to defend the action which was brought against her as a sequel to an accident in which her vehicle was involved while being operated, in her absence, by another person.


author: ROWLEY, Judge:

text:
    535 A.2d 1115
    Earl FORMAN, Deceased, Elizabeth Forman, Widow v. Irving RUTBERG, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Argued May 28, 1987.
    Filed Dec. 31, 1987.

      Arnold F. Laikin, Philadelphia, for appellant.
    Mark B. Segal, Philadelphia, for appellees.
    Before ROWLEY, KELLY and WATKINS, JJ.
   ROWLEY, Judge:

This case involves appeals from two orders refusing to strike two judgments. In April, 1985, Appellee, Elizabeth Forman, filed a workmen’s compensation fatal claim petition against appellant, Irving Rutberg, following her husband, Earl Forman’s, fatal fall from a drain pipe while repairing appellant’s rental property. In this claim she sought dependent’s death benefits. In August, 1985, as executrix of Earl Forman’s estate, appellee filed a lifetime claim petition against appellant seeking medical benefits. In January, 1986, appellant received notice of the Referree’s Order that appellant’s insurance company did not represent appellant individually, but only with regard to his fur business, and therefore, the insurance company’s answers to the fatal claim and life time petitions were to be stricken. However, appellant, individually was granted leave to file an answer. On May 8, 1986, appellant still having filed no answer and appellee having received a notice from the Pennsylvania Compensation Rating Bureau that appellant was not carrying workmen’s compensation insurance when Earl Forman fell and died, appellee filed two praecipes with the Prothonotary of the Court of Common Pleas of Philadelphia County to enter temporary judgments against appellant pursuant to 77 P.S. § 931. The judgments were entered on May 8, 1986. On May 14, 1986 appellant filed answers to the petitions claiming that he was not an employer subject to the Workmen’s Compensation Act. On August 21, 1986, appellant filed a petition to strike or open the judgments, and to grant him counsel fees. The court entered an order with regard to each of the judgments refusing to strike the judgments and denying the claim for counsel fees. Appellant has appealed from these orders, and the appeals have been consolidated.

Appellant contends that the trial court erred when it refused to strike the judgment because the statute authorizing entry of the judgment is unconstitutional on its face. Appellant asserts that 77 P.S. § 931 authorizing the temporary judgments to be entered against him, is a deprivation of his property without procedural or substantive due process of law in violation of both the state and federal constitutions. By placing a lien on the employer’s property, thereby affecting its alienability, the statute restricts the employer’s use of his property without due process. Similarly, because there is no provision in the statute for notice and a hearing prior to the entry of the judgment to ascertain the potential liability of the employer, the statute denies the employer procedural due process. Finally, appellant argues that appellee acted arbitrarily, vexatiously, and in bad faith when she filed the praecipes for the judgments, and therefore the trial court should have granted that portion of his petition which requested counsel fees.

The relevant portion of the statute allowing an employee to praecipe for a temporary judgment against an employer under certain circumstances, provides as follows:

Whenever, after an injury, any employe or his dependents shall have entered into a compensation agreement with an employer, who has not accepted or complied with the provisions of section three hundred five, or shall file a claim petition against such employer, he may file a certified copy thereof with the prothonotary of the court of common pleas of any county. The prothonotary shall enter the amount stipulated in any such agreement or claimed in any such claim petition as judgment against the employer, and where the amount so stipulated or claimed is for total and permanent disability, such judgment shall be in the sum of thirty thousand dollars. If the agreement be approved by the department, or compensation awarded as claimed in the petition, the amount of compensation stipulated in the agreement or claimed in the petition shall be a lien, as of the date when the agreement or petition was filed with the prothonotary. Pending the approval of the agreement or the award of compensation, no other lien which may be attached to the employer’s property during such time shall gain priority over the lien of such agreement or award; but no execution shall issue on any compensation judgment before the approval of the agreement of the award of compensation on the said petition.

77 P.S. § 931.

The test for determining whether or not a statute denies substantive due process, where, as here, there is no fundamental interest or suspect classification involved, is whether or not the statute bears a rational relationship to a valid state objective. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 Pa. 147, (1981); Whitling v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 95 Pa.Cmwlth. 500, 505 A.2d 1101 (1986). Appellant argues that because not all employers named in workmen’s compensation claims are ultimately found to be liable for the claims, the determination that a temporary judgment may be entered against any employer named in a workmen’s compensation claim is unnecessarily arbitrary. We disagree.

Initially, we note that the statute does not apply to all employers named in a workmen’s compensation claim, but only to those against whom there is an outstanding claim and who are not insured for such claims as required by 77 P.S. § 501. More importantly, however, the Commonwealth has a legitimate state interest in providing for a temporary judgment in favor of an employee who must earn the wages with which to provide for his or her daily needs from an employer who not only is potentially liable for the claim, but has himself or herself failed to provide the statutorily required insurance which ordinarily would serve as the assurance to the claimant that there would be adequate funds with which to satisfy the claim if the claimant ultimately prevails. Furthermore, the effect of the temporary judgments authorized by § 931 is only to preserve the claimant’s status as a lienholder, and does not allow the claimant to execute on the judgment unless and until it has been finally determined that the employer is liable for the claim. Because there is a reasonable basis for this statute, the Act does not substantively deny due process.

Appellant also argues that the statute denies him procedural due process because there is no provision in the statute for notice to the employer prior to entry of the judgment and because there is no provision for a hearing to determine the reasonable possibility of a judgment being rendered against the employer. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). However, the procedures required by due process are not the same in all circumstances and depend upon the requirements of a particular situation. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). “The form which those procedural protections must take is determined by an evaluation of all the circumstances and an accommodation of competing interests.” Eash v. Riggins Trucking Inc., 757 F.2d 557, 570 (3rd Cir.1985). To determine the extent of the procedures which are necessary, we must consider three factors: 1) the private interest affected by the official action; 2) the risk of an erroneous deprivation of the private interest as a result of the procedures used; and 3) the government’s interest, including fiscal and administrative burdens, that additional procedures would entail. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Therefore, we must examine the temporary judgment statute involved here in light of these factors.

The private interest affected is the employer’s interest in having no judgments recorded against him. To the extent the employer owns property, the effect of the temporary judgment is to place a lien on the property. Although the property cannot actually be taken by means of execution until there has been a final determination of the employer’s liability, the lien itself affects the employer’s ability to alienate the property and may affect the employer’s ability to use the property as collateral in other financial transactions. However, because a temporary judgment does not restrain an employer from all uses of his property such that he may continue to use the property to conduct his business, the interest affected has been minimized by the very terms of the legislation. Therefore, although there is a private interest affected by the temporary judgment act, the legislature has minimized the impact to the least extent possible in accordance with its legitimate interest in protecting the claimant’s ability to actually receive compensation for the claim if it ultimately is determined to be meritorious.

The risk that an erroneous deprivation will occur is also minimal. The statute provides that a temporary judgment may only be obtained by an actual “employee” with a claim against an actual “employer.” In sections 103 and 104 of the Act, the statute provides specific definitions of “employer” and “employee”. Whether or not there is an employer/employee relationship for purposes of the Act depends on whether the facts establish that the common law master/servant relationship exists. 77 P.S. §§ 21 and 22. Therefore, when an alleged employer contests from the first opportunity either that he is not an employer within the meaning of the Act or that the claimant is not an employee within the meaning of the Act, then § 931 does not apply. Thus the possibility that an alleged employer will suffer the imposition of a temporary judgment for which he is subsequently determined not to be liable on the basis either that he is not the employer or the alleged employee is not an actual employee is avoided by the terms of the Act.

The only circumstances, then, in which an employer would be subject to an erroneous deprivation of his property interest due to the entering of a temporary judgment against him pursuant to § 931 would be where the claimant has made an unfounded claim. However, there is nothing of record in this case from which we can determine the number or frequency of unfounded workmen’s compensation claims in which temporary judgments are obtained against the employer. We therefore conclude that the risk of an erroneous deprivation is not substantial.

Finally, we must weigh the burden on the government which the additional procedure of notice and a hearing prior to the entry of the temporary judgment would have. The requirement of a hearing prior to entry of the temporary judgment would, at least in part, defeat the purpose of the statute. A prior hearing would postpone the opportunity for the claimant to become a lienholder, and thereby could substantially diminish the possibility that the claimant would be able to recover an ultimate, final judgment. Moreover, notice and a hearing prior to the entry of the temporary judgment would give the employer an opportunity to change the record ownership of his property in an attempt to make himself judgment-proof by the time that the temporary judgment could be entered. Furthermore, to provide a hearing in each case prior to entry of the temporary judgment would require allocation of scarce judicial resources in all such cases, even though judicial resources have already been allocated for hearing petitions to open in those cases in which the employer actually asserts a meritorious defense challenging the propriety of the temporary judgment. It would be an unnecessary burden on the Commonwealth to conduct a hearing prior to the entry of a temporary judgment in all cases, when there is a relatively expeditious procedure already provided for challenging the temporary judgment. We find the burden on the Commonwealth to be especially onerous in view of the fact that the private interest affected has already been minimized and that the risk of an erroneous deprivation is relatively small. Balancing the competing interests of the individual employer and those of the government, we conclude that due process does not mandate notice and a hearing prior to entry of a temporary judgment pursuant to 77 P.S. § 931.

Having concluded that the statute is constitutional and denies neither substantive nor procedural due process,

we now examine the effect of this conclusion on the case before us. In this particular case, at the time the temporary judgments were entered, there was nothing of record to indicate that the alleged employer was not in fact appellee’s decedent’s employer. Therefore, § 931 was applicable, and, on the face of the record, it was appropriate to enter the judgments. Because a judgment should be stricken only when there is a fatal defect on the face of the record, Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972), and Nobel Well Service, Inc. v. Penn Energy, Inc., 348 Pa.Super. 267, 502 A.2d 200 (1985), and because in this case, nothing on the face of the record precluded entry of the judgments, we affirm the trial court’s order refusing to strike the judgments.

However, appellant alternatively requested that the judgments be opened. In support of this request, appellant contends that he was not an employer of the decedent within the terms of the Workmen’s Compensation statute. As we have already discussed, it is entirely appropriate for an employer to challenge on the merits, the propriety of the temporary judgment by means of a petition to open. Because the trial court has not addressed the merits of appellant’s petition to open, we will remand and direct the trial court to consider it.

Finally, we find no merit to appellant’s argument that the trial court erred in not awarding him counsel fees. Inasmuch as the statute is constitutional, appellee did not act vexatiously or in bad faith, and therefore, we will affirm that portion of the trial court’s order denying appellant’s claim for counsel fees.

Those portions of the trial court’s orders denying the petition to strike are affirmed; those portions of the trial court’s orders denying counsel fees are affirmed. The case is remanded for consideration of appellant’s petition to open. Jurisdiction relinquished.

      . Separate praecipes were filed at No. 1036 May Term 1986 with regard to the claim for medical benefits, and at No. 1037 May Term 1986 with regard to the claim for death benefits. The present appeals concern the judgment at each of these docket numbers.

      . The petition was labeled, "Petition of Irving Rutberg to Strike Judgment and to Award Counsel Fees." However, in the prayer for relief, appellant specifically requested that the judgments be either stricken or opened. The trial court improperly treated the petition as if it were only a petition to strike, and therefore did not address the question of whether the judgment should have been opened.