Petition for Writ of Certiorari — Commonwealth Secretary of Virginia v. Miserandino

Supreme Court brief1997

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In The

Supreme Court of the United States

October Term, 1996

COMMONWEALTH OF VIRGINIA, EX REL.,

SECRETARY OF THE COMMONWEALTH,

Petitioner,

GERALD P. MISERANDINO AND

KAREN L. MISERANDINO,

Respondents.

On Petition For A Writ Of Certiorari

Te The Maryland Court Of Appeals

PETITION FOR WRIT OF CERTIORARI

RICHARD CULLEN

Attorney General

Davip E. ANDERSON

Chief Deputy Attorney General

FrRANcis S. FERGUSON

Deputy Attorney General

Grecory E. Lucyk

Senior Assistant Attorney

General

*A. ANN BERKEBILE

Assistant Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2074

Attorneys for Petitioner

June 30, 1997 *Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 WX

OR CALL COLLECT (402) 342-2831 oO v

nXb

Il.

1 anneal eee

QUESTIONS PRESENTED FOR REVIEW

WHETHER FIRST-CLASS MAIL DELIVERY BY THE

UNITED STATES POSTAL SERVICE CONSTITUTES

A REASONABLY CALCULATED METHOD OF PRO-

VIDING NOTICE FOR PURPOSES OF OBTAINING

IN PERSONAM JURISDICTION SO AS TO SATISFY

REQUIREMENTS OF DUE PROCESS?

WHETHER THE FULL FAITH AND CREDIT

CLAUSE OF THE UNITED STATES CONSTITUTION

REQUIRES A STATE TO RECOGNIZE THE VAL-

IDITY OF AN IN PERSONAM JUDGMENT

OBTAINED WITHIN A FOREIGN STATE IF

ACTUAL NOTICE OF THE FOREIGN ACTION WAS

RECEIVED BY THE JUDGMENT DEBTOR, IRRE-

SPECTIVE OF THE METHOD USED TO OBTAIN

ACTUAL NOTICE?

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Marylard Court of

Appeals were:

Gerald P. Miserandino, Defendant, Respondent

herein.

Karen L. Miserandino, Defendant, Respondent herein.

Resort Properties, Inc., Plaintiff, Co-Petitioner herein.

Commonwealth of Virginia, ex rel. Secretary of the

Commonwealth, Plaintiff-Intervenor, Petitioner

herein.

iii

TABLE OF CONTENTS

Page

REE FURIE OMPUEMEED oc occ csccccevecseveccess iv

STATEMENT OF JURISDICTION................... 1

hie s hd ks eRe shnWiche ks Walek ie 1

co ee ee 1

JURISDICTION, AND CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED .......... 2

Pemnmeaeeee GP TRIE CASE. oi occ cess cesscceees 2

SUMMARY OF REASONS FOR GRANTING THE

ee ee Tee Pee eee 7

REASONS FOR GRANTING THE PETITION....... 9

I First-Class Mail Delivery By The United States

Postal Service Constitutes A Reasonably Calcu-

lated Method Of Providing Notice For Purposes

Of Obtaining In Personam Jurisdiction So As To

Satisfy Requirements Of Due Process......... 9

A. First-Class Mail Satisfied Requirements of

SE SEN Libs st bites ob heen enwensaes 64:0 9

B. The Maryland Court’s Test for Determining

When Service by First-Class Mail Is Suffi-

cient Is Illogical and Strained ............ 15

II. The Full Faith And Credit Clause Of The

United States Constitution Requires A State To

Recognize The Validity Of An In Personam

Judgment Obtained Within A Foreign State If

Actual Notice Of The Foreign Action Was

Received By The Judgment Debtor, Irrespec-

tive Of The Method Used To Obtain Actual

PGR S iin Sahn due ees ht ess eDaeravivsvaveve 19

TABLE OF AUTHORITIES

Page

CASES

Academy of IRM v. LVI Environmental Services, Inc.,

344 Md. 434, 687 A.2d 669 (1997)................. 21

Armstrong v. Manzo, 380 U.S. 545 (1965).......... 11, 12

Brown v. Va. Dept. of Corrections, 886 F.Supp. 531

Cae. WH. SO 6 osc rons been epic een aatkesnks 20

Greene v. Lindsay, 456 U.S. 444 (1982) ............... 12

Holmes v. Randolph, 610 N.E.2d 839 (Ind. 1993) ...... 10

In Re Cossio, Inc., 163 B.R. 150 (9th Cir. BAP (Cal.)

1994), aff'd, 56 F.3d 70 (9th Cir. 1995)............. 14

In Re M & L Business Mach. Co., Inc., 190 B.R. 111

CE: SA, EE iin no's knee ae Reena ee tenes 14

International Shoe v. Washington, 326 U.S. 310

OPE 6 doce a eank sa peek nek eae nad seeks 20

Kremer v. Chemical Construction Corp., 456 U.S. 461

OU 05 o.Aund 64600 ihkes ohana gue een eneeLkn es 22

Kulkov v. Superior Ct. of California, 436 U.S. 84

(RUTIE s:n Ann f) 68 <tn 0 enn ehseeians SGN se ibins « 19

Leavell v. Karnes, 143 B.R. 212 (S.D. Ill. 1990)........ 14

Matter of Park Nursing Center, Inc., 766 F.2d 261

Oe Sets BE ok cen’ ch laced ens cuawerianeas> 14, 16

Matter of Younger, 166 B.R. 494 (S.D. Ga. 1993) ...... 14

Mennonite Board of Missions v. Adams, 462 U.S. 791

CRP eR ea Uae eter icine er lvds MPbsvetieteeeness 12

Miserandino v. Resort Properties, Inc., 345 Md. 43,

ee Me CE NE 86 in ehc0bxos wkd cocemanbinaaees 1

TABLE OF AUTHORITIES - Continued

Mohr v. Universal C.I.T. Corp., 216 Md. 197, 140

IRIS elie

Mullane v. Central Hanover Tr. Co., 339 U.S. 306

| oer rer rere fer ee ‘3. ‘ia.

Nelson v. Diversified Collection Services, Inc. and

United Student Aid Funds, 1997 U.S. Dist. LEXIS

Sia Wee We Bh ss as ct ee ie

Pacific Employers Ins. Co. v. Industrial Accident

Comm'n, S06 (IS. G93 (AGS) «oc a cccccccecveses

Peters v. National Railroad Passenger Corp., 966 F.2d

oN ae sO er eT ney Pre er

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1995) ....

Pink v. A.A.A. Highway Express, Inc., 314 U.S. 201

COUN 6. kc icuxccee cas phar eeawae nn ceeeee eee

Public Citizen v. Dept. of Justice, 491 U.S. 440 (1989) ....

Redding v. C.I.R., 630 F.2d 1169 (7th Cir. 1980)....

Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694

FRIED Ei Svva nade ouaeaeUh Cubana beacsbacndwanwash

State v. Barnes, 273 Md. 195, 328 A.2d 737 (1974) ....

Tulsa Professional Collection Services, Inc. v. Pope,

RD: EE re ah bs oes cbse cacddensunnes

Williams v. North Carolina, 317 U.S. 287 (1942)....

Windsor Communications Group, Inc. v. Grant, 75

BR. 713 (B.D. Pa. 1968) 2... cece cc ccceewecseses

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

Article IV, § 1 of the Constitution of the United

DPRMOOS 0 oc ecweceaeetadé eek bh ee 2, 19

Fifth Amendment to the Constitution of the

BB a ae em a ye I rl” ee Vie Pee” 2

Fourteenth Amendment to the Constitution of the

Lite SOGGes. ooo cevven ac etcaeees a kee z

STATUTES

20 U.S.C. § 100Ge CO Gi ai ieee 8, 18

28 USS... © TF wv isvcccascsatincdinetaeeeeraee 2

2B USA... & DUD «ick cexvsssesdcicseeeee eee 1

39 USC. 6 DEGREE .cccrcrsvestddde eee 13

Va. Code Ann. § 8.01-328.1 (1950, 1992 Repl. Vol.)..... 4

Va. Code Ann. § 8.01-329 (1950, 1992 Repl. Vol.)... . passim

Va. Code Ann. § 8.01-428 (1950, 1992 Repl.

VOL) «ccsccveveceutenesouenenweaaeane aria 11, 12, 16

Idaho Code § 15-4-303 (1996) .............. see eee 8, 18

Minn. Stat. § 170.35 CAGES. ois vssicssccscseedyel 1, 8, 18

Mont. Code Ann. § 72-4-203 (1995)...............- 8, 18

N.D. Cent. Code § 30.1-25-03 (1995)............... 8, 18

Utah Code Ann. § 75-4-303 (1996) ................ 8, 18

Vii

TABLE OF AUTHORITIES - Continued

Page

PROCEDURAL RULES

Federal Bankruptcy Rule 7004(b) (1996) ........... 8, 14

Rule 6-125 of the Maryland Rules of Procedure ...... 8

OTHER AUTHORITIES

1996 Comprehensive Statement on Postal Opera-

OEE oc ccc ckewees eave ceedeeueeeeetareeeseewes eis 12

STATEMENT OF JURISDICTION

The judgment sought to be reviewed by this Court

was initially entered by the Maryland Court of Appeals

on February 12, 1997. (App. at 1.) The Maryland Court of

Appeals denied the Petitioner’s Motion for Reconsidera-

tion of its ruling and entered a Mandate associated with

the ruling of February 12, 1997, on April 8, 1997. (App. at

56.)

OPINION BELOW

The February 12, 1997, opinion of the Maryland

Court of Appeals, and the correction to page one of that

opinion which was filed on April 8, 1997, appears in the

Appendix to this Petition for Writ of Certiorari. (App. at

1.) The corrected opinion is also reported at 345 Md. 43,

691 A.2d 208 (1997), and is also available on LEXIS at

1997 Md. LEXIS 10. The Maryland Court of Appeals’

order dated April 8, 1997, granting the Commonwealth of

Virginia’s Petition to Intervene but denying the Common-

wealth’s Motion for Reconsideration appears in the

Appendix at 53.

NOTIFICATION

Pursuant to Rule 29.4(c), the Commonwealth of Vir-

ginia hereby advises this Court that the constitutionality

of a statute of the state of Minnesota, that is, Minn. Stat.

§ 170.55 (1996), may be drawn into question by this

proceeding and, therefore, 28 U.S.C. § 2403(b) may apply.

Accordingly, this Petition for Writ of Certiorari will be

served upon the Attorney General of Minnesota upon its

filing in this Court.

JURISDICTION, AND CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

This Court has jurisdiction to consider the issues

raised in this Petition because such issues and the deci-

sion of the Maryland Court of Appeals sought to be

reviewed in this proceeding call into to question the

constitutionality of a statute of the Commonwealth of

Virginia. 28 U.S.C. § 1257. Specifically, the decision of the

Maryland Court of Appeals sought to be reviewed in this

proceeding calls into question whether Va. Code Ann.

§ 8.01-329 (1950, 1992 Repl. Vol.), (App. at 77), satisfies

the requirements of procedural due process established

by the Fifth and Fourteenth Amendments to the Constitu-

tion of the United States. (App. at 70-76.) The questions

raised by this Petition also draw into question the appli-

cation of Article IV, § 1 of the Constitution.

STATEMENT OF THE CASE

This request for review arises out of a split decision

of the Maryland Court of Appeals which refused to give

full faith and credit to a Virginia judgment in the amount

of $4,211.82 which was obtained by Resort Properties,

Inc. (“Resort”) against Gerald and Karen Miserandino

(“the Miserandinos”) in the Circuit Court of Warren

County, Virginia. It is undisputed that Resort used the

eC ae nn een eed Ce nay cn Ae bot eet

procedural mechanism set forth in Va. Code § 8.01-329 in

order to obtain in personam jurisdiction over the Miseran-

dinos. This provision authorizes service of process on the

Secretary of the Commonwealth as the statutory agent of

persons who, among other things, conduct business in

Virginia, enter into contracts in Virginia or have an inter-

est in real property in Virginia. (App. at 77.)

Pursuant to § 8.01-329, a plaintiff seeking to obtain

service upon a non-resident defendant must also submit

an affidavit to the Secretary of the Commonwealth setting

forth the defendant’s last known address. After being

served with process as the statutory agent of a non-

resident, the Secretary of the Commonwealth is required

to send copies of the pleadings which have been served

upon her by first-class mail to the defendant’s last known

address as set forth in the plaintiff’s affidavit. Va. Code

§ 8.01-329. (App. at 77.)

After obtaining the Virginia judgment in accordance

with the mechanism set forth in Va. Code § 8.01-329 and

described above, Resort recorded its judgment against the

Miserandinos in the Circuit Court for Carroll County,

Maryland. (App. at 2.) In accordance with Maryland pro-

cedure, a clerk in the Carroll County Circuit Court mailed

the Miserandinos a notice informing them that a judg-

ment had been recorded against them by Resort. (App. at

2.) Upon receipt of this mailed notice, the Miserandinos

filed a motion to strike the entry of foreign judgment.

(App. at 2.)

In their motion to strike, the Miserandinos denied

that they were ever served with process in connection

with the Virginia proceeding. They also claimed that they

had no knowledge of that proceeding until after they

received the notice of judgment which was sent to them

by the Carroll County Circuit Court. (App. at 2.) In addi-

tion, the Miserandinos argued that they lacked sufficient

contacts with Virginia to confer in personam jurisdiction

over them to a Virginia court. The Miserandinos subse-

quently waived their attack against the Virginia court’s

assumption of personal jurisdiction over them under Vir-

ginia’s long-arm statute based upon their alleged “lack of

contacts” with Virginia but persisted with their lack of

notice allegation.!

1 Section 8.01-328.1 of the Virginia Code (1950, 1992 Repl.

Vol.), Virginia’s long-arm statute, provides, in pertinent part,

that:

A court may exercise personal jurisdiction over a

person .. . as to a cause of action arising from the

person’s:

1. Transacting any businsess in this Common-

wealth;

* * .

6. Having any interest in, using, or possessing

real property in the Commonwealth.

Virginia’s long-arm statute is set-forth in full in the Appendix.

(App. at 74.)

The underlying transaction giving rise to the Virginia

judgment at issue in this proceeding involved the Miserandinos’

interest in real estate in Virginia and a loan application which

the Miserandinos allegedly executed in connection with such

real estate. (App. at 3.) The Maryland Court of Appeals correctly

recognized that the allegations contained within the

Miserandinos’ motion to strike were insufficient to raise an

actual controversy regarding the basis for the Virginia court’s

jurisdiction since Resort’s claim qualifies as a “specific

jurisdiction” case which arose out of a cause of action relating to

The Carroll County Circuit Court initially sustained

the Miserandinos’ motion to strike, but, after a second

hearing, reversed its original decision and recorded the

Virginia judgment. (App. at 4.) The Maryland Court of

Special Appeals affirmed the Circuit Court’s opinion and

the Miserandinos appealed to Maryland’s highest court.

(App. at 4.)

On appeal, the Maryland Court of Appeals consid-

ered the arguments of Resort and the Miserandinos

regarding the constitutionality of the method of obtaining

notice used in the Virginia proceeding, that is, first-class

mail delivery by the United States Postal Service. The

Maryland Court of Appeals, in a 4 to 3 vote with a

vigorous dissent, ultimately concluded that this method,

although expressly authorized by statute in the Code of

Virginia, did not satisfy the requirements of procedural

due process. (App. at 28-29.)

It was not until after the Maryland Court of Appeals

reached its decision regarding the first-class mail delivery

issue that the.Commonwealth of Virginia was made

aware of the Miserandinos’ case or their challenge to

Virginia’s long-arm statute and the potential impact of

the Maryland court's ruling on the enforceability of judg-

ments obtained pursuant to Va. Code § 8.01-329. (App. at

59.) The ruling was reported in the press as being likely

to “wreak havoc” on creditors’ practice in Virginia. See

Virginia Lawyer’s Weekly, Vol. XI, No. 39, p. 1 (March 3,

1997). Upon being made aware of the constitutional

the Miserandinos’ “specific” contacts with Virginia, that is,

“signing a contract and allegedly purchasing an interest in

property in that jurisdiction.” (App. at 7-8.)

issues raised by the Maryland Court's ruling, the Com-

monwealth of Virginia petitioned the Maryland court for

leave to intervene in the Maryland proceeding. (App. at

58.)

The Commonwealth of Virginia also filed a Motion

for Reconsideration in the Maryland Court of Appeals.

(App. at 62.) In its Motion for Reconsideration, the Com-

monwealth of Virginia argued that the Maryland Court of

Appeals’ decision filed on February 12, 1997, was erro-

neous. In support of this contention, the Commonwealth

of Virginia argued that the Virginia Code provides for

sufficient procedural safeguards to ensure that the due

process rights of non-resident litigants are protected.

(App. at 62.) In addition, the Commonwealth of Virginia

argued that the procedural mechanism set forth in Va.

Code § 8.01-329 is “reasonably calculated to apprise inter-

ested parties of the pendency of the action and to afford

them an opportunity to present their applications.” (App.

at 62.) At the conclusion of its Motion for Reconsidera-

tion, the Commonwealth of Virginia expressed its willing-

ness and desire to submit additional briefs and argument

to the Maryland Court of Appeals in defense of its stat-

utes. (App. at 66.) Counsel for the Miserandinos filed a

brief in opposition to the Commonwealth’s Petition to

Intervene.

The Maryland Court of Appeals did not order the

submission of additional briefs or argument by the par-

ties. Instead, by order dated April 8, 1997, the Maryland

Court of Appeals granted the Commonwealth of Vir-

ginia’s Petition to Intervene as a party in the proceedings

but denied its Motion for Reconsideration. (App. at 53.) It

also issued a Mandate on April 8, 1997, implementing its

ruling of February 12, 1997. (App. at 56.)

SUMMARY OF REASONS FOR

GRANTING THE WRIT

This case presents issues of substantial public impor-

tance (1) for business interests engaged in interstate com-

merce and, (2) concerning the deference which must be

given by sister states to the state court judgments

obtained in accordance with long-standing state law. The

case also involves issues which, as conceded by the Mary-

land Court of Appeals, have not yet been clearly resolved

by this Court. (App. at 8.)

The Maryland court’s decision has the potential to

greatly disrupt creditors’ practice in the densely popu-

lated northern Virginia area and around the country. The

decision already has been publicly recognized by legal

commentators as having the potential to “wreak havoc”

with respect to the ability of Virginia’s creditors to

enforce judgments against non-resident debtors. Virginia

Lawyer's Weekly, Vol. XI, No. 39, p.1 (March 3, 1997). This

conclusion is supported by the fact that the Secretary of

the Commonwealth processes over 50,000 requests for

service upon non-residents per year. (App. at 82-83.)

Moreover, the change in Virginia procedure suggested by

the Maryland Court of Appeals, that is, requiring the

Secretary of the Commonwealth to forward notice of

Virginia long-arm claims to non-residents by certified or

registered mail, would be extremely burdensome upon

the Secretary of the Commonwealth and would neces-

sarily result in an increase in the workload, staffing needs

and costs of her office. (App. at 83.) Logically, these costs

would ultimately be borne by the taxpayers of Virginia.

The Maryland decision also draws into question

other federal and state laws permitting service and notice

by first-class mail. See, e.g., Federal Bankruptcy Rule

7004(b) (1996) (authorizing service by first-class mail); 20

U.S.C. § 1095a (a) (2) (in federal garnishment proceeding,

“the individual shall be provided written notice, sent by

mail to the individual’s last known address. . . . ”); Minn.

Stat. § 170.55 (1996) (authorizing notice of motor vehicle

liability claims to be sent by non-residents by first-class

mail); Rule 6-125 of the Maryland Rules of Procedure

(“Method of service - Generally - Except where these

rules specifically require that service shall be made by

certified mail, service may be made by personal delivery

or ordinary mail); Idaho Code § 15-4-303 (1996) (comment

to official text - in probate cases “[t]he provision for

ordinary mail as a substitute for registered or certified

mail is provided because . . . registered mail may not be

available to reach certain addresses . . . and also certified

mail may not be available as a process for service because

of the method of delivery used [rural delivery and star

route delivery]”); Mont. Code Ann. § 72-4-203 (1995)

(again providing for mailed service in probate cases);

N.D. Cent. Code § 30.1-25-03 (1995) (same); Utah Code

Ann. § 75-4-303 (1996) (same).

Furthermore, the Maryland Court of Appeals rejected

this long-standing Virginia procedure without any evi-

dence to support the conclusion that first-class mail con-

stitutes an unreliable method of providing notice. The

Maryland court’s arbitrary action, and the likelihood of

inconsistent findings and rulings in other state coucts,

demonstrates the need for a national standard upholding

the use of first-class mail for notice proceedings.

Finally, well-recognized principles of full faith and

credit should not be allowed to permit a court of a sister

state to second-guess the decisions of a neighboring

state’s legislature merely because that court concludes

that, in its opinion, more stringent and costly notice

requirements are preferable.

For all of these reasons, this Court should grant the

Commonwealth of Virginia’s Petition for Writ of Cer-

tiorart.

REASONS FOR GRANTING THE PETITION

I. First-Class Mail Delivery By The United States

Postal Service Constitutes A Reasonably Calculated

Method Of Providing Notice For Purposes Of

Obtaining In Personam Jurisdiction So As To Satisfy

Requirements Of Due Process.

A. First-Class Mail Satisfies Requirements of Due

Process

The Maryland Court of Appeals erred when it con-

cluded that first-class mail delivery by the United States

Postal Service does not constitute an adequate mecha-

nism for providing notice in an in personam case. The

Maryland Court of Appeals reached this erroneous deci-

sion without evidence before it to support the conclusion

that the United States mail constitutes an unreliable

method of advising persons of the claims which have

been asserted against them. Instead, again without statis-

tical proof, the Maryland Court concluded that alterna-

tive methods such as certified and registered mail “offer a

considerably higher degree of probability of actual

notice.” (App. at 26.)

In fact, common sense weighs against the Maryland

Court of Appeal’s conclusion in this regard. As noted by

the dissent,

[Certified or Registered] mail does not increase

the likelihood that the mail will arrive at the

address to which it was sent. If the address is

correct, then ultimate receipt by the defendant is

about as likely with first-class mail as with certi-

fied mail. The use of “certified mail” merely

provides corroborative evidence that the mate-

rial is actually sent and further provides a

record of dispatch and delivery. See State v.

Barnes, 273 Md. 195, 209, 328 A.2d 737, 746

(1974) (stating that “[t]he only logical purpose

to be served by directing that the notice be

delivered by certified mail is to provide corrobo-

ration for bald assertions of having given such

notice and a means of tracing and establishing

the date of receipt should a dispute concerning

the delivery of notice arise”)... .

(App. at 36.) See also Holmes v. Randolph, 610 N.E.2d 839,

845 (Ind. 1993) (noting that the “use of certified mail will

provide a better record of receipt but not-—necessarily

increase the probability the addressee will actually

receive the notice.”)?

Furthermore, it is clear that Virginia’s statutory

method for service of process on non-residents provides

sufficient procedural safeguards to ensure that the due

process rights of non-resident litigants are protected in

that it is “reasonably calculated . . . to apprise interested

parties of the pendency of [Virginia actions against them]

and to afford them an opportunity to present their objec-

tions.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314

(1950). These procedural safeguards include a provision

within the Virginia Code which allows litigants to chal-

lenge Virginia judgments when they claim not to have

received actual notice of a Virginia proceeding against

them. Va. Code Ann. § 8.01-428 (1950, 1992 Repl. Vol.)

(App. at 80.)3 In addition, as explained above, the Secre-

tary of the Commonwealth is required to certify that she

2 Furthermore, again as noted by the dissent, the method of

service set forth in § 8.01-329 “provides a record of dispatch”

which is comparable to certified or registered mail. (App. at 37.)

Section 8.01-329 requires the Secretary of the Commonwealth to

mail the notice and to certify that it has been sent, thereby, as is

the case with registered or certified mail, requiring a

disinterested party to issue a record of dispatch.

3 In its opinion, the Maryland Court of Appeals reasoned

that the protections afforded by Va. Code § 8.01-428 do not save

the defective means of service of process set forth in § 8.01-329.

(App. at 27-28.) The Maryland court relied upon this Court's

decision in Armstrong v. Manzo, 380 U.S. 545 (1965), when

reaching this conclusion. The circumstances which led to the

violation of due process recognized in Armstrong, supra, are

clearly distinguishable from Virginia’s statutory procedure for

challenging default judgments.

has forwarded the relevant pleading to the non-resident

defendant’s last known address.

Moreover, this Court has recognized on numerous

occasions “that mail service is an inexpensive and efficient

mechanism that is reasonably calculated to provide actual

notice.” Tulsa Professional Collection Services, Inc. v. Pope,

485 U.S. 478, 489-90 (1988) (emphasis added). See also

Mennonite Board of Missions v. Adams, 462 U.S. 791,

799-800 (1983); Greene v. Lindsay, 456 U.S. 444, 455 (1982);

Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. at 319.

Statistics from the United States Postal Service support

this conclusion. The 1996 Comprehensive Statement on

Postal Operations transmitted by the United States Postal

In Armstrong, this Court concluded that a father’s right to

due process was violated when he failed to receive notice of a

Texas proceeding terminating his parental rights. Even though

the child’s mother was aware of the father’s address, she did not

attempt to provide him with notice of the termination

proceeding. In a subsequent proceeding, the father was able to

obtain the reinstatement of his parental rights. Nevertheless,

this Court concluded that the second proceeding was not

sufficient to “cure” the previous violation of the father’s right to

due process. Id. at 551.

In contrast, pursuant to Va. Code § 8.01-329, plaintiffs are

required to execute an affidavit containing what they swear

under oath to be the last known address for the defendants

sought to be served. In turn, the Secretary of the

Commonwealth is required to provide non-resident defendants

with notice by first-class mail and to certify that she has sent

such notices to the last known addresses of the relevant

defendants. If for some reason a non-resident defendant does

not receive the notice, he can challenge any judgment which has

been entered against him pursuant to the procedure set forth in

Va. Code § 8.01-428. (App. at 80.)

Service to Congress in accordance with 39 U.S.C.

§ 2401(e) reflects a decrease in customer complaints in

1996 from previous years. (App. at 161.) This Statement

also reflects that “92 percent of the nation’s households

rate[ ] their overall satisfaction with the Postal Service as

‘excellent,’ ‘very good,’ or ‘good’... . ” (App. at 187.) In

addition, an independent study conducted by the

accounting firm of Price Waterhouse reflects an average

national overnight successful delivery rate for first-class

mail of 89% for mail sent within overnight geographical

commitment areas; a 79% successful delivery rate for mail

sent within two-day geographical commitment areas; and

a 80% successful delivery rate for mail sent within three-

day geographical commitment areas.* (App. at 185.)

4 The Maryland Court of Appeals found the Postal

Service’s statistics regarding successful delivery rates to be

unpersuasive. (App. at 23.) Instead, the Maryland court

indicated that it would need to see data from the Postal Service

to show the amount of first-class mail which is not successfully

delivered in order to reach the conclusion that first-class mail is

a reliable method for providing notice in an in personam case.

(App. at 23.)

It is not difficult to understand why reliable data regarding

“undelivered” first-class mail would be difficult to obtain. Data

which conceivably could be obtained regarding the number of

complaints made to the Postal Service about the alleged non-

delivery of first-class mail would not serve as a reliable

indicator of the efficiency of notice given by first-class mail.

Invalid or untrue complaints regarding non-delivery are likely

to be made by persons attempting to establish that they did not

receive undesirable mail or to establish that they have sent

required mail, such as, for example, mail relating to the

payment of bills. Furthermore, complaints also are likely to be

made about mail which is subsequently delivered to the proper

location (and the complaining party is unlikely to retract their

complaint).

First-class mail has also been recognized as a valid

mechanism for obtaining service of process in the context

of bankruptcy litigation. Federal Bankruptcy Rule 7004(b)

(1996), adopted in 1983, permits service of a summons

and complaint in bankruptcy cases by first-class mail,

and provides that the mailing may be made “to the

individual’s dwelling house or usual place of abode,” or

“to the place where the individual regularly conducts a

business or profession.” The constitutionality of the

notice provided in accordance with Bankruptcy Rule 7004

has been upheld on numerous occasions. Matter of Park

Nursing Center, Inc., 766 F.2d 261, 263 (6th Cir. 1985); In Re

M & L Business Mach. Co., Inc., 190 B.R. 111, 115 (D. Colo.

1995); In Re Cossio, Inc., 163 B.R. 150, 156 (9th Cir. BAP

(Cal.) 1994), aff'd, 56 F.3d 70 (9th Cir. 1995); Matter of

Younger, 166 B.R. 494, 496-97 (S.D. Ga. 1993); Leavell v.

Karnes, 143 B.R. 212, 217 (S.D. Ill. 1990); Windsor Commu-

nications Group, Inc. v. Grant, 75 B.R. 713 (E.D. Pa. 1985).5

> The constitutionality of notice provided by first-class mail

has also been upheld by federal and state courts in connection

with additional types of claims. See, e.g., Phillips Petroleum Co. v.

Shutts, 472 U.S. 797 (1995) (upholding notice by first-class mail

to potential class members in class action lawsuit); Peters v.

National Railroad Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir.

1992) (recognizing notice by mail to class members as “the best

notice possible under the circumstances”) (citation omitted);

Nelson v. Diversified Collection Services, Inc. and United Student

Aid Funds, 1997 U.S. Dist. LEXIS 5214 (D.C. Md. 1997)

(upholding notice by first-class mail of federal garnishment

claims); Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694 (1929)

(upholding constitutionality of Minnesota statute authorizing

service upon Secretary of State as statutory agent of non-

residents who are sued in connection with motor vehicle

accidents occurring within the state of Minnesota where the

en Can

Even the Maryland Court of Appeals recognized the

bankruptcy service rule as “strong precedent and rather

extensive experience that supports the use of first-class

mail for the purpose of obtaining personal jurisdiction.”

(App. at 23.) Nevertheless, the Maryland court attempted

to distinguish bankruptcy litigation from the types of

claims at issue pursuant to Virginia’s long-arm statute in

an effort to support its conclusion that something “more”

is required to fulfill due process requirements when gen-

eral long-arm jurisdiction is asserted. As explained below,

the Maryland court’s attempts in this regard are irrele-

vant to the determination of whether the method of ser-

vice provided for within Va. Code § 8.01-329 satisfies the

requirements of procedural due process and demonstrate

the need for a national standard on the sufficiency of

first-class mail service.

B. The Maryland Court’s Test for Determining

When Service by First-Class Mail is Sufficient

is Illogical and Strained.

Under the analysis adopted by the Maryland Court

of Appeals, if providing notice by first-class mail is not

constitutionally permissible in a particular type of law-

suit, then statutorily authorized notice by mail does not

establish in personam jurisdiction even if received. The

Maryland court’s test for ascertaining when notice by

mail is sufficient is uncertain at best in that, as explained

above, the Maryland court does recognize that service by

statute also provided that notice of such a claim is to be mailed

by regular mail to the non-resident defendant).

mail is constitutionally sufficient in certain causes of

action, such as bankruptcy. The Maryland court attempts

to give several reasons for distinguishing the bankruptcy

cases from long-arm litigation pursued against non-resi-

dents in Virginia, none of which are persuasive.

First, citing Matter of Park Nursing Center, supra, the

Maryland Court of Appeals notes that bankruptcy default

judgments may be set aside if a litigant can establish that

he failed to receive notice of the proceeding. (App. at 24.)

This attempted distinction by the Maryland court ignores

the fact that Virginia provides for a similar procedural

protection within its statutes. Va. Code § 8.01-428.

The Maryland Court of Appeals also implies that

service by first-class mail may be appropriate in bank-

ruptcy litigation because of the high volume of cases in

the bankruptcy courts. (App. at 25.) If volume of cases is

a relevant factor in determining whether the require-

ments of procedural due process are met by a statutorily

authorized method of service, then the Maryland Court

of Appeals should have considered the extremely high

volume of non-resident service applications which are

processed by the Secretary of the Commonwealth per

week and per year. As explained in the Commonwealth

of Virginia’s Motion for Reconsideration (App. at 64) and

in an affidavit from the Deputy Secretary of the Common-

wealth which has been made a part of the Appendix to

this Petition (App. at 82), the Secretary of the Common-

wealth processes approximately 975 requests for service

of process on non-residents per week and over 50,000 of

such requests per year. In addition, as explained in the

Deputy Secretary’s affidavit, a requirement that each of

these requests be forwarded by registered or certified

mail to non-residents, as suggested by the Maryland

Court of Appeals, would substantially increase the work-

load, staffing needs, and costs of the Secretary of the

Commonwealth. Thus, the “state interest” in providing

for notice by first-class mail and the “special circum-

stances” involved in non-resident service cases in Vir-

ginia would appear to be at least equivalent to those

which were recognized by the Maryland court to be

involved in bankruptcy cases so as to justify service by

first-class mail.

Regardless, as explained above, the only relevant

issue with respect to statutory compliance with due pro-

cess is whether the means provided for within the statute

is “reasonably calculated . . . to apprise interested parties

of the pendency of the action and afford them an oppor-

tunity to present their objections.” Mullane v. Central

Hanover Bank & Tr. Co., 339 U.S. at 314. There was no

evidence before the Maryland Court of Appeals to sup-

port its conclusion that first-class mail is not a “reason-

ably calculated [method] . . . to apprise interested

parties” and “to afford them an opportunity to present

their objections” and, in fact, there is precedent from this

Court to support a contrary conclusion. Furthermore,

there was no evidence before the Maryland Court of

Appeals to support its conclusion that certified or regis-

tered mail is more likely to result in actual notice of a

pending action. Contrary to the apparent reasoning of the

Maryland court, the mere fact that these alternative

means of providing notice are more costly for litigants to

utilize or that these methods may provide potential plain-

tiffs with convenient evidence of receipt does not mean

that the use of certified or registered mail is more likely

to result in actual notice.

Thus, it is clear that the Maryland Court of Appeals

erred when it concluded the use of first-class mail to

provide notice is insufficient to meet requirements of due

process. It is also apparent that the Maryland court’s

erroneous decision has the potential to wreak havoc on

the enforceability of Virginia judgments within Maryland

and across the country, and, further, that the decision

indirectly calls into question the constitutionality of

numerous statutes, both state and federal, which autho-

rize notice by first-class mail. Under the circumstances,

this Honorable Court should grant the Commonwealth of

Virginia’s Petition for a Writ of Certiorari and reverse the

decision of the Maryland Court of Appeals on appeal.

(2) (authorizing service by mail in federal garnishment actions

used in connection with federal student loans); Idaho Code

§ 15-4-303 (1996) (authorizing service by mail in rural areas in

probate cases); Mont. Code Ann. § 72-4-203 (1995) (same); N.D.

Cent. Code § 30.1-25-03 (1995) (same); Utah Code Ann.

§ 75-4-303 (1996) (same).

II. The Full Faith And Credit Clause Of The United

States Constitution Requires A State To Recognize

The Validity Of An In Personam Judgment

Obtained Within A Foreign State If Actual Notice

Of The Foreign Action Was Received By The Judg-

ment Debtor, Irrespective Of The Method Used To

Obtain Actual Notice.

Article IV, Section 1 of the Constitution of the United

States [hereinafter refered to as the “Full Faith and Credit

Clause”] provides that:

[fjull faith and credit shall be given in each state

to the public acts, records, and judicial proceed-

ings of every other state. And the Congress may

by general laws prescribe the manner in which

such acts, records and proceedings shall be

proved, and the effect thereof.

The purpose of the Full Faith and Credit Clause is to

preserve rights acquired or confirmed under public acts

and judicial proceedings of one state by rendering recog-

nition of their validity in others. Pink v. A.A.A. Highway

Express, Inc., 314 U.S. 201, 209 (1941); Pacific Employers Ins.

Co. v. Industrial Accident Comm'n, 306 U.S. 493, 501 (1939).

Under this Clause, all states are required to respect and

enforce a judgment of another state, where its courts have

general jurisdiction over the subject matter and the par-

ties. Kulkov v. Superior Ct. of California, 436 U.S. 84, 95 n.9

(1978) (noting that a final judgment entered by a state

court having jurisdiction over the person and subject

matter should be entitled to full faith and credit by the

courts of sister states); Williams v. North Carolina, 317 U.S.

287, 299 (1942) (a divorce decree entered by one state in

accordance with principles of due process is binding

upon courts of other states). The Maryland Court of

Appeals violated the Full Faith and Credit Clause when it

refused to give effect to the Virginia judgment obtained

by Resort against the Miserandinos.

By enacting a long-arm statute that requires notice to

be sent by first-class mail, the Virginia General Assembly

must be presumed to have concluded that this method is

reasonably calculated to inform non-residents of the pen-

dency of a judicial proceeding against them. See Redding

v. C.I.R., 630 F.2d 1169, 1181-82 (7th Cir. 1980), cert. denied,

450 U.S. 913 (1981) (legislature is presumed to be aware of

constitutional principles set forth by the courts when

enacting legislation); Brown v. Va. Dept. of Corrections, 886

F.Supp. 531, 535 (E.D. Va. 1995) (it is presumed that the

General Assembly does not intend that its statute’s appli-

cation lead to irrational circumstances). In accordance

with the Full Faith and Credit Clause, the Maryland

Court of Appeals should have deferred to the Virginia

General Assembly’s conclusions in this regard. See Public

Citizen v. Dept. of Justice, 491 U.S. 440, 465-66 (1989)

(statutes are to be construed in a constitutional manner if

they are subject to such a construction).

Furthermore, the Maryland Court of Appeals should

only refuse to give effect to a Virginia judgment if it has

been established that the judgment was rendered in viola-

tion of principles of procedural due process. See Interna-

tional Shoe v. Washington, 326 U.S. 310, 291 (1945). Such a

violation was not established in this case. In fact, the

Maryland Court of Appeals refused even to consider all

of the factors necessary for the court’s analysis in reach-

ing such a determination.

Sean

Specifically, the Maryland court failed to make any

inquiry whatsoever as to whether the Miserandinos actu-

ally received notice of the Virginia judgment.” If, in fact,

the Miserandinos received actual notice of the Virginia

Proceeding in order “to afford them an opportunity to

present their objections,” then they were given all of the

Process that they were due under the Constitution. Mul-

lane v. Central Hanover Bank & Tr. Co., 339 US. 306, 314

(1950).

The Maryland court's disclaimer of Virginia law is

even more egregious here because the court failed to

follow its own established precedent. See Academy of IRM

v. LVI Environmental Services, Inc., 344 Md. 434, 687 A.2d

669 (1997). In Academy of IRM, the Maryland Court of

Appeals held that compliance with Statutory require-

ments for service of process gives rise to a presumption

that service was Properly made. Id. See also Mohr v. Uni-

versal C.I.T. Corp., 216 Md. 197, 204, 140 A.2d 49, 51 (1958)

(referring to “the universal tule to the effect that the

receipt of a letter by the addressee is presumed, when it

is shown that the letter, Properly stamped and addressed,

was posted in the mails”

with Va. Code § 8.01-329), renders their contention that they

failed to receive notice of the Virginia proceeding highly

Suspect. (App. at 35.) -

Moreover, as explained above, the Maryland Court of

Appeals’ standard for when providing notice by first-

class mail is constitutionality sufficient is vague at best. A

preferable approach, which would have been consistent

with the Full Faith and Credit Clause, would have been

for the Maryland court to recognize that notice by first-

class mail is permissible in all forms of in personam

actions and to have left with Virginia’s General Assembly

the decision as to when notice by first-class mail may be

authorized. Some state legislatures or even Congress may

elect to adopt statutes which comport with the minimum

requirements of due process, while others may choose to

adopt more stringent requirements than those actually

mandated by the Constitution. A court of a sister state

should not be permitted to second guess the decisions of

a neighboring state’s legislature merely because that

court concludes that, in its opinion, more stringent and

costly notice requirements are preferable. See Kremer v.

Chemical Construction Corp., 456 U.S. 461, 481-82 (1982)

(interpreting federal Full Faith and Credit Act and con-

cluding that federal courts may not “employ their own

rule . . . in determining the effect of State judgments”).

Because first-class mail has been recognized by this

Court as a “reasonably calculated” means of providing

notice to defendants, if the Miserandinos actually

received the mailed notice authorized by Va. Code

§ 8.01-329, they received all the process they were due

under the Constitution. Therefore, when the Maryland

Court of Appeals refused to even consider the issue of

whether the Miserandinos received actual notice, it com-

mitted reversal error subject to correction by this Court if

the Commonwealth of Virginia’s Petition for a Writ of

Certiorari is granted.

CONCLUSION

This Court should grant the Commonwealth of Vir-

ginia’s Petition for Writ of Certiorari and reverse the

judgment of the Maryland Court of Appeals.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA, EX REL.,

SECRETARY OF THE COMMONWEALTH

RICHARD CULLEN

Attorney General

Davip E. ANDERSON

Chief Deputy Attorney General

Francis F. Fercuson

Deputy Attorney General

Grecory E. Lucyx

Senior Assistant Attorney General

"A. ANN BERKEBILE

Assistant Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2074

“Counsel of Record

App. 1

IN THE COURT OF APPEALS OF MARYLAND

No. 93

September Term, 1995

Gerald P. Miserandino and Karen L. Miserandino

vV.

Resort Properties, Inc. et al.

Eldridge

Rodowsky

Chasanow

Karwacki

Bell

Raker

McAuliffe, John F. (retired,

specially assigned), JJ.

Opinion by McAuliffe, J.

-Rodowsky, Chasanow,

and Raker, Jj.

dissent.

Filed: February 12, 1997

This case involves a constitutional attack by judg-

ment debtors against a judgment entered against them by

a state trial court in Virginia. The collateral attack on the

judgment was made in the Circuit Court for Carroll

County, Maryland, where the judgment creditor sought to

enroll the judgment. The defendants challenge the basis

App. 2

for the exercise of long-arm personal jurisdiction by the

Virginia court, as well as the constitutional sufficiency of

the Virginia statutory scheme for the giving of notice to

nonresidents proceeded against under that Common-

wealth’s long-arm jurisdiction statute.

I. FACTS

Resort Properties, Inc. (Resort), recorded a judgment

against Gerard and Karen Miserandino, (defendants) in

the Circuit Court for Carroll County on June 3, 1993. The

notice of judgment, mailed by a court clerk to the defen-

dants, simply informed them that a judgment of $4,211.82

had been recorded against them by Resort. Thereafter, the

defendants filed a motion to strike the entry of the for-

eign judgment. From their inspection of the court’s file,

the defendants knew that the judgment was obtained in

Warren County, Virginia and that Resort was the assignee

of North Fork Shenandoah Vacations, Inc.

In the motion, the defendants alleged by affidavit

made on personal knowledge that they were not served

with process, had no notice, and did not appear in the

Virginia action. They alleged further, that:

Defendants were not subject to the jurisdic-

tion of said Virginia Court in said action, nor

was either of them. . . . Said foreign judgment is

invalid, null, void and of no effect since said

Virginia Court lacked in personam jurisdiction

over defendants, or either of them, in the action

in which that judgment was entered.

—_—

Specifically, the motion alleged that neither of the defen-

dants resides in Virginia, neither is domiciled in Virginia,

App. 3

neither is employed in Virginia, carries on any regular

business, occupation, or vocation in Virginia, or main-

tains a principal place of business in Virginia. Finally,

they alleged:

Defendants do not have sufficient contacts

with Virginia to confer in personam jurisdiction

over them, or either of them, upon the Virginia

court in which said foreign judgment was

entered.

In an accompanying memorandum, the defendants

argued that they did not have sufficient contacts with

Virginia to “satisfy traditional notions of fair play and

substantial justice,” quoting Pennoyer v. Neff, 95 U.S. 714,

24 L.Ed. 565 (1877).

In opposition, Resort stated: “The underlying trans-

action was based upon the defendants having an interest

in and possessing real property in Virginia, and the trans-

action in and of itself constituted transacting business by

the defendants in Virginia.” Resort also averred, “Defen-

dants executed a loan application in July, 1988, in Virginia

for an interest in real property which was located in

Virginia, thereby confessing fees and jurisdiction over

both defendants in the State of Virginia.”

At the hearing of defendants’ motion, Resort's attor-

ney informed the court that he had a loan application,

club membership contract, and deed in his file, and that

he was willing to provide the court with copies. The court

interrupted and there ensued an exchange between the

judge and the defendants’ attorney, Mr. Lipsitz, as fol-

lows:

App. 4

THE COURT: Well... I’m not sure Mr. Lipsitz

has any problem with the fact that there was

property purchased, or a loan made, or a con-

tract made in West (sic) Virginia... .

MR. LIPSITZ: Well, I’m not pressing that point

today, your Honor...

I raise the issue because, frankly, until this

morning, I had no idea what the claim was. You

can’t — from the record . . . you really can’t tell

what the claim is. . . . If my people, in fact, own

property in Virginia, and if this transaction

involved that - is involved in this case, I proba-

bly would not prevail on the in personam juris-

diction point. Nevertheless, the service point is

the critical point. . . . I’m willing to accept my

brother’s statement as to what he says is in his

file...

THE COURT: For purposes of the hearing

(inaudible).

MR. LIPSITZ: ... that’s something that could

be thrashed out at a trial on the mer-

its . . . maybe they’re subject to jurisdiction;

maybe they’re not.

The court initially granted the defendants’ motion to

strike. Resort filed a motion to alter or amend because the

court had cited the wrong statute in its order. After a

second hearing, the court reversed its ruling and

recorded the judgment against the defendants.

The Court of Special Appeals affirmed in an unre-

ported opinion, and this Court granted certiorari.

App. 5

Il. PERSONAL JURISDICTION ~~

Virginia, like Maryland, has interpreted its long-arm

Statute as an attempt to assert jurisdiction to the extent

possible under the Due Process Clause of the federal

Constitution. Brown v. American Broadcasting Co., Inc., 704

F.2d 1296 (4th Cir. 1983). Section 8.01-328.1 of the Virginia

Code (1950, 1992 Rep. Vol.) provides that:

A court may exercise Personal jurisdiction

Over a person . . . as to a cause of action arising

from the person’s:

1. Transacting any business in this Com-

monwealth;

* * *

6. Having any interest in, using, or pos-

sessing real property in the Common-

wealth.

We note initially that the defendants had the burden

of producing evidence to attack the judgment sought to

be recorded.

In Maryland, an authenticated copy of a

record is prima facie evidence of jurisdiction

and the judgment or decree must be presumed

valid until it is declared invalid by a competent

court.

Imperial Hotel v. Bell Atlantic, 91 Md. App. 266, 271-72, 603

A.2d 1371 (1992). In Brewster v. Brewster, 204 Md. 501, 105

A.2d 232 (1954), the Court considered the issue of a

divorce obtained by the husband in Arkansas and

another divorce obtained by the wife in Maryland. The

wife argued the Arkansas divorce should not take effect

until she was given an Opportunity to prove it invalid.

App. 6

The court ruled, however, that “until [the foreign judg-

ment] is declared to be invalid by a competent court, it

must be presumed to be valid and given full faith and

credit. . . . The burden of proof is upon the attacker.” Id.

at 505. See also Van Wagenberg v. Van Wagenberg, 241 Md.

154, 160, 215 A.2d 812 (1966). As noted, defendants

offered no evidence to contradict the basis of long-arm

jurisdiction asserted by Resort.

To exercise personal jurisdiction over a defendant

who is not present in the forum state, “due process

requires only that . . . [the defendant] have certain mini-

mum contacts with [the forum state] such that the main-

tenance of the suit does not offend ‘traditional notions of

fair play and substantial justice.’ ” International Shoe Co. v.

Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95

(1945). “[T]he quality and quantity of contacts required to

support the exercise of personal jurisdiction” depend

upon the facts of each particular case. Camelback Ski Corp.

v. Behning, 312 Md. 330, 338, 539 A.2d 1107 (1988), cert.

denied, 488 U.S. 849 (1988). Ordinarily, cases involve

either “general jurisdiction” where the cause of action is

unrelated to the defendant’s contact with the forum state,

or “specific jurisdiction” where the cause of action arises

out of the defendant’s contacts with the forum state. Id.

Generally speaking, when the cause of action

does not arise out of, or is not directly related to,

the conduct of the defendant within the forum,

contacts reflecting continuous or systematic...

conduct will be required to sustain jurisdiction.

On the other hand, when the cause of action

arises out of the contacts that the defendant had

with the forum, it may be entirely fair to permit

the exercise of jurisdiction as to that claim.

Id. at 338-39.

App. 7

The defendants’ allegations were insufficient to raise

an actual controversy regarding the Virginia court's per-

sonal jurisdiction. If this were a “general jurisdiction”

case, their assertion that they did not reside in Virginia or

conduct business regularly in Virginia may have been

sufficient to raise an actual controversy. See International

Shoe, supra, 326 US. at 317. This case, however, may be

classified as a “specific jurisdiction” case because Resort's

cause of action arises out of the defendants’ contacts with

Virginia, signing a contract and allegedly purchasing an

interest in property in that jurisdiction. Thus, under the

facts of this case, the defendants’ allegations did not raise

an actual controversy regarding the existence of a suffi-

cient basis for the exercise of personal jurisdiction.

In a suit arising out of a contract signed in the forum

State, the contract plus other factors Provide a sufficient

basis for the exercise of personal jurisdiction in the forum

State. In McGee v. International Life Ins. Co., 355 U.S. 220,

78 S.Ct. 199, 2 L.Ed. 223 (1957), the Supreme Court ruled

that a Texas insurance company was amenable to suit in

California because the insured was domiciled in Califor-

nia and the suit arose under the insurance contract. “It is

sufficient for purposes of due Process that the suit was

based on a contract which had substantial connection

with that State.” Id. at 223. Other factors, however, such

as ongoing relationship with the party in the forum state,

are required to establish “minimum contacts.” Burger

King Corp. v. Rudzewicz, 471 U.S. 462, 478-79, 105 S.Ct.

2174, 85 L.Ed.2d 528 (1985). In this case, the defendants

never alleged or proved that they did not sign a contract

in Virginia, that this case did not arise out of a contract

App. 8

signed in Virginia, or that there were no other factors to

support personal jurisdiction.

In any event, it is clear from the colloquy we set forth

in Section 1, supra, that for present purposes the defen-

dants waived any attack they may have had against the

assertion of personal jurisdiction under the Virginia long-

arm statute, and acquiesced in the statement of counsel

for the plaintiff that the documentary evidence he prof-

fered would be sufficient to show a proper ground for the

exercise of that jurisdiction. Any issues that might have

been raised as to the sufficiency of the plaintiffs’ original

pleadings in Virginia, or as to the grounds for personal

jurisdiction, were effectively waived for purposes of the

circuit court hearing.

Ill. ADEQUACY OF NOTICE

The more difficult question with respect to the acqui-

sition of personal jurisdiction by the Virginia court

involves the constitutional adequacy of the means

employed to give notice to the defendants. The procedure

followed by the plaintiff was in accordance with the

Virginia statute prescribing the method of service of pro-

cess upon a nonresident individual in a case involving

long-arm jurisdiction, but that will not be sufficient to

confer jurisdiction unless the method authorized by the

statute comports with the requirements of federal due

process. Thus, we are required to address a question not

yet resolved by the United States Supreme Court, and

only rarely considered by other federal and state courts:

whether initial and original service of process by first-

App. 9

class mail is constitutionally sufficient to confer in per-

sonam jurisdiction over a nonresident individual in a

long-arm jurisdiction case.

The Due Process Clause of the 14th Amendment “ata

minimum . . . require[s] that deprivation of life, liberty or

Property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of the

case.” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313,

70 S.Ct. 652, 94 L.Ed. 865 (1950). The importance of giving

adequate notice cannot be overstated.

No better instrument has been devised for arriv-

ing at truth than to give a person in jeopardy of

serious loss notice of the case against him and

opportunity to meet it. Nor has a better way

been found for generating the feeling, so impor-

tant to a popular government, that justice has

been done.

Anti-Fascist Committee v. McGrath, 341 U.S. 123, 171-72, 71

S.Ct. 624, 95 L.Ed. 817 (1951), Frankfurter, J. concurring

(footnote omitted).

No particular procedure is required in all cases. “On

the contrary, due process is flexible and calls only for

such procedural protections as the particular situation

demands. Procedures adequate under one set of facts

may not be sufficient in a different situation.” Department

of Transportation v. Armacost, 299 Md. 392, 416, 474 A.2d

191 (1984). See also, Golden Sands Club v. Waller, 313 Md.

484, 493, 545 A.2d 1332 (1988) (Maryland Contract Lien

Act, requiring notice of lien to condominium unit owners

by certified or registered mail, return receipt requested,

Satisfies due process).

App. 10

To determine whether notice in a particular case is

constitutionally sufficient, the court “must balance the

interests of the state or the giver of notice against the

individual interest sought to be protected by the four-

teenth amendment.” Golden Sands, supra, 313 Md. at 496;

see also, Mullane, 339 U.S. at 314; Armacost, 229 Md. at 416.

At a minimum, the notice must be “reasonably calculated,

under all the circumstances, to apprise interested parties

of the pendency of the action and afford them an oppor-

tunity to present their objections.” Mullane, 339 U.S. at

314.

Among the multiple factors to be considered in deter-

mining what process is due in a given situation is the

nature of the action being brought.

What is a sufficient method of notification

depends upon the nature of the action and the

circumstances. The interests to be considered

are, on the one hand, those of the state and of

the plaintiff in bringing the issues involved to a

final settlement and, on the other hand, those of

the defendant in being afforded an opportunity

to defend. The practicalities of the situation

must be considered. A state is not precluded

from exercising such judicial jurisdiction as it

may possess by the fact that under the circum-

stances it is impossible to make certain that

notice will reach the defendant or because the

only sure way of giving notice to the defendant

would be so burdensome and expensive as to be

impracticable. On the other hand, when actual

notice is practicable, a prucedure which is a

mere gesture is not enough. A method of noti-

fication which would be sufficient in some cir-

cumstances may be insufficient in others

App. 11

because another method would obviously be

better calculated to give the defendant knowl-

edge of the action.

Restatement (Second) of Conflict of Laws §25 cmt. d.

(1971), Although the distinction between in rem and in

personam actions no longer offers a per se solution to

problems of notice, the nature of the action continues to

be relevant.

[W]e decline to resolve the constitutional ques-

tion based upon the determination of whether

the particular action is more properly charac-

terized as one in rem or in personam. ... That is

not to say that the nature of the action has no

bearing on a constitutional assessment of the

reasonableness of the Procedures employed. The

character of the action reflects the extent to

which the court purports to extend its power,

and thus may roughly describe the scope of

potential adverse consequences to the person

claiming a right to more effective notice.

Greene v, Lindsey, 456 U.S. 444, 450, 102 S.Ct. 1874, 72

L.Ed.2d 249 (1982). The Supreme Court has recognized

that when an action involves property, the state may

indulge certain assumptions.

The ways of an owner with tangible property

are such that he usually arranges means to learn

of any direct attack upon his possessory or pro-

prietary rights. Hence, libel of a ship, attach-

ment of a chattel or entry upon real estate in the

name of law may reasonably be expected to

come promptly to the owner’s attention. When

the state within which the owner has located

such property seizes it for some reason, publica-

tion or posting affords an additional measure of

App. 12

notification. A state may indulge the assump-

tion that one who has left tangible property in

the state either has abandoned it, in which case

proceedings against it deprive him of noth-

ing . . . or that he has left some caretaker under

a duty to let him know that it is being jeopar-

dized. . . . As phrased long ago by Chief Justice

Marshall in The Mary, 9 Cranch 126, 144 ‘it is the

part of common prudence for all those who have

any interest in [a thing], to guard that interest

by persons who are in a situation to protect it.’

Mullane, supra, 339 U.S. at 316. More recently, the Court

said:

It is, of course, reasonable to assume that a

property owner will maintain superintendence

of his property, and to presume that actions

physically disturbing his holdings will come to

his attention.

Greene v. Lindsey, 456 U.S. at 451. For a further discussion

of the “caretaker assumption” see R. Greenbaum, The

Postman Never Rings Twice: The Constitutionality Of Process

By Posting Ajter Greene V. Lindsey, 33 Am.Univ.L.R. 601,

616-20 (1984).

When the nature of a case involved judicial settle-

ments by the trustee of a common trust fund embracing

113 trusts with resident and nonresident beneificiaries,

the Supreme Court held that personal service of notice of

the accounting would not be required.

This type of trust presupposes a large number of

small interests. The individual interest does not

stand alone but is identical with that of a class.

The rights of each in the integrity of the fund

and the fidelity of the trustee are shared by

App. 13

Mullane, supra, 339 US. at 319. The Court held, however,

that newspaper publication alone was insufficient “not

because in fact it fails to reach everyone, but because

The case before us is not in rem or quasi in rem. This

case involves an attempt by one party to obtain a money

App. 14 *

foreign jurisdiction if reasonably calculated to give actual

notice.” Id. Substituted service is permitted when a defen-

dant has acted to evade service;! when a person resists

service by threats, or force;2 or when good faith efforts to

serve the defendant in person or by certified mail have

not succeeded.

In the case before us, there is no indication that any

earlier attempt of service had been made, or that the

defendants were attempting to avoid or resist service.

Accordingly, the method of service utilized in this case,

service by first-class mail, would not have been sufficient

under Maryland law. That fact is of no consequence,

however, if the method of service satisfies the require-

ments of due process, because the service of process was

in accordance with the applicable Virginia statute.

Section 8.01-329 of the Code of Virginia (1950, 1992

Repl. Vol.) provides an alternative method of service of

process on a nonresident subject to long-arm jurisdiction

by service “on the Secretary of the Commonwealth of

Virginia . . . who, for this purpose, shall be deemed to be

the statutory agent of such person.” That section of the

code further provides that service on the Secretary

shall be sufficient upon the person to be served,

provided that notice of such service, a copy of

the process or notice, and a copy of the affidavit

are forthwith mailed, by the Secretary to the

person or persons to be served at the last known

1 Maryland Rule 2-121(b).

2 Section 6-303 of the Courts and Judicial Proceedings

Article, Maryland Code (1974, 1995 Rep. Vol.).

3 Maryland Rule 2-121(c).

App. 15

post-office address of such person, and a certifi-

cate of compliance herewith by the Secretary or

someone designated by him for that purpose

and having knowledge of such compliance, shall

be forthwith filed with the Papers in the action.

The concept of serving a state officer or agency in connec-

tion with the acquisition of Personal jurisdiction over a

nonresident dates to the era of Pennoyer v. Neff, supra,

when it was held that in personam jurisdiction could be

acquired only by service made within the state. With the

subsequent recognition of long-arm jurisdiction the

necessity for service within the state disappeared, and

resort to the legal fiction of “consent” to service on a local

agent or “appointment” of a local agent for service was

no longer necessary. See Olberding v. Illinois Central R. Co.,

346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953); Com. de Astral

v. Boston Met. Co., 205 Md. 237, 264, 107 A2d. [sic] 357, 108

A2d. [sic] 372 (1954).

Inasmuch as service no longer is limited in all

cases to the territorial confines of the jurisdic-

tion in which the court is sitting, the require-

ment in the original nonresident motorist

Statutes that service be made “within the state”

by serving a state official before process is

mailed to defendant no longer is of constitu-

tional magnitude. Although it served its pur-

pose well in an earlier era, it is largely an

anachronism today.

4 Wright & Miller, Federal Practice and Procedure, §1074 at

Pp. 459 (1987).

Although no longer required as a condition to the

acquisition of personal jurisdiction over a nonresident,

App. 16

and insufficient in itself to confer jurisdiction, involve-

ment of the Secretary of the Commonwealth does serve

the important purposes of ensuring that notice is in fact

sent and providing a neutral and official repository for

documentary evidence of that fact.4 The defendants do

not contend that the required procedure was not followed

in this case. That the notice was sent, however, does not

answer the question of whether the means employed for

transmittal of the notice was constitutionally sufficient.

Service on a state official or agency does not obviate the

necessity for constitutionally sufficient notice to the

defendant. Wuchter v. Pizzutti, 276 U.S. 13, 48 S.Ct. 259, 72

L.Ed. 446 (1928); Grote v. Rogers, 158 Md. 685, 149 A. 547

(1930).

Personal delivery of process to a defendant, followed

by the filing of written proof of that service, is a time-

honored method of acquiring personal jurisdiction. This

method of service, properly executed, provides a high

degree of probability that the defendant received the

required notice. An alternative method of “personal

delivery” is to have an employee of the United States

Postal Service deliver the process to the defendant. This

method, service by mail, is often quicker and less expen-

sive than service by a sheriff or private process server,

but may present a problem with respect to proof of ser-

vice.

4 The Secretary is required by statute to maintain a detailed

“record of each notice of service sent to a person for a period of

two years.” Section 8.01-329 (E), Code of Virginia (1950, 1992

Rep. Vol.).

App. 17

Postal regulations Providing an optional service of

restricted delivery of registered or certified mail do, how-

ever, offer a solution to the problem of proof of service.

For an additional fee, a person mailing a letter may direct

that the letter be handled as registered or certified mail,

that the letter may be delivered only to the addressee or

his duly authorized representative, and that the person

accomplishing delivery return a receipt to the sender

bearing the Signature of the person receiving the letter

and showing the date and address of delivery. See 39

C.F.R. § 111.1 incorporating by reference the provisions of

the Domestic Mail Manual. See in addition, the following

sections of the Domestic Mail Manual: § 911 registered

mail; S 912 certified mail; S 915 return receipts; and S 916

restricted delivery. When Process is mailed in this fashion

a return that includes a postal receipt bearing the signa-

ture of the defendant or his authorized agent and a copy

of the process that_was mailed is filed, and the court can

Proceed with a high level of confidence that the requisite

notice has been given.

Service by registered or certified mail should be

regarded as efficacious [as personal service]

from a constitutional Perspective to evoke per-

sonal jurisdiction since the return receipt nor-

mally guarantees that defendant or someone

related or associated with him has received the

process.

4 Wright and Miller, Federal Practice and Procedure (1987),

§ 1074 at p. 457-58.

Problems have arisen with the use of restricted deliv-

ery mail for service of process principally with respect to

mail that is returned “refused” or “unclaimed.” Postal

App. 18

regulations permit an addressee to “refuse to accept a

piece of mail when it is offered for delivery.” Domestic

Mail Manual, D 042. In the event of an affirmative refusal,

the letter is marked “refused” and is returned to the

sender. A restricted delivery letter that is not affirma-

tively refused, but is not delivered because the addressee

does not claim it after delivery is attempted and notices

have been left at the address given, is returned to the

sender marked “unclaimed.”

Courts in jurisdictions permitting personal service by

registered or certified mail have generally held that a

defendant cannot defeat service by an affirmative refusal

to accept the letter, but that an “unclaimed” letter will not

suffice to confer personal jurisdiction. See, Note, Service

Of Process By Mail, 74 Mich. L. Rev. 381, 387-91 (1975);

Note, Constitutional Law; The Validity Of Service Of Process

By Mail When There Is No Return Receipt; The Outer Limits

Of Due Process, 25 Okla. L. Rev. 566, 567-70 (1972). See

also, Lohman v. Lohman, 331 Md. 113, 626 A.2d 384 (1993)

(unclaimed certified letter insufficient to sustain personal

jurisdiction over individual defendant).

In this state we have upheld substituted service on a

corporation when service was made in accordance with

the statute by serving the State Department of Assess-

ments and Taxation after multiple attempts to serve the

resident agent were unsuccessful and registered mail

notice sent by the Department to the corporation was

“unclaimed.” Barrie-Peter Pan Sch. v. Cudmore, 261 Md.

408, 276 A2d. [sic] 74 (1971). We note, however, that

consistent with the flexible nature of due process, the

process that must be afforded a corporation may differ

from that required in the case of an individual.

App. 19

[I]n the case of foreign corporations a less rig-

Orous standard may suffice than in the case of

individuals, for the reason that a state is gener-

ally without power to exclude an individual

non-resident from doing business or making

contracts within the state, but may generally

completely exclude foreign corporations or may

admit them only subject to conditions.

Com. de Astral v. Boston Met. Co., supra, 205 Md. at 262.

Recognition of registered or certified mail as an effec-

tive method of accomplishing personal service of process

is not unusual. In 1982, the Supreme Court forwarded to

Congress a Proposed revision of Federal Rule of Civil

Procedure 4 that would have utilized restricted delivery

registered or certified mail as an alternative to personal

service. Significant protests were advanced, however,

resulting in a postponement of the effective date of this

Proposed rule change, and ultimately resulting in a major

change in the Proposed amendment to the Rule. See 96

F.R.D. at 116-135 (1982), detailing the history of the initial

Proposal and subsequent modification.

In a letter dated December 10, 1982, to the Chairman

of the House Judiciary Committee, Assistant Attorney

General Robert McConnell summarized the criticisms of

the proposed rule, as follows:

[C]ritics of that System of mail service have

argued that certified mail is not an effective

method of providing actual notice to defendants

of claims against them because signatures may

be illegible or may not match the name of the

defendant, or because it may be difficult to

' ‘determine whether mail has been ‘unclaimed’ or

App. 20

‘refused,’ the latter providing the sole basis for a

default judgment.

96 F.R.D. at 116.

The amendment to Fed. R. Civ. P. 4 that emerged

from Congress in 1983 did not permit original service by

registered or certified mail as a means of acquiring per-

sonal jurisdiction. Instead, the Rule permitted an attempt

at service by first-class mail that would be effective only if

the person to be served returned a written acknowledg-

ment within twenty days after the date of mailing. If an

acknowledgment of service was not received, service

would then be required under other provisions of the

Rule. As an incentive to the recipient to accept service by

first-class mail, the Rule further provided that a recipient

who declined to file a written acknowledgment would be

charged with the costs of service by other means.

Changes to Rule 4 effective in 1993 now make it clear that

this use of first-class mail does not actually achieve ser-

vice of process, but rather facilitates the filing by the

recipient of a waiver of service that permits the action to

go forward.

This history of recent amendments to Fed. R. Civ. P. 4

suggests the existence of an abiding congressional con-

cern about the effectiveness about certain types of mail

delivery as a primary means of service to acquire per-

sonal jurisdiction. Certainly there has been no suggestion

that the use of first-class mail alone to accomplish such

service would be looked upon with favor.

The Maryland legislature has recently enacted a bill

that permits the giving of first notices in an estate case by

App. 21

first-class mail instead of restricted mail. Chapter 417 of

the Laws of Maryland, 1996, codified at § 1-103 of the

Estates and Trusts Article, Maryland Code (1974, 1991

Rep. Vol., 1996 cum. supp.). The legislative history indi-

cates that the principal purpose of the change was to

reduce costs now borne by Registers of Wills. There is no

discussion in the legislative history or in the brief

approval of the proposed bill by the Attorney General of

any due process considerations. This Court has not had

an opportunity to pass upon the constitutional sufficiency

of notice by first-class mail in this context, and we inti-

mate no opinion on that question.

Professor Robert W. Kirst, in his article Nebraska's

Modern Service of Process Statute, 63 Neb. L. Rev. 1 (1983)

Suggests that service by first-class mail as a primary

means of acquiring personal jurisdiction probably does

not comport with the requirements of due process.

Service by first class mail alone, with no

receipt, is an alternative method of substituted

service, but it hardly seems likely to comply

with the due process clause, notwithstanding

the Sixth Circuit’s possible endorsement of it in

Greene [v. Lindsey]. The Sixth Circuit clearly had

° This statute does provide, however, that the use of first-

class mail for this purpose will be permitted only if this Court,

through its rule-making power, does not require personal

service or some other method of notice. Article 1-103(a)(1) of

Estates and Trusts Article, Maryland Code (1974, 1991 Rep. Vol.

1996 cum. supp.). This statute also permits the Orphans Court

the option of requiring restricted mail delivery of first notices in

any case. Section 1-103(a)(2).

App. 22

no empirical data to show that the rate of pil-

ferage from mailboxes in public housing pro-

jects was less than the rate of removal of

summons from doors. The chance that the sum-

mons will be mailed or delivered to the wrong

address must be at least as high, if not higher, as

the chance it will be posted on the wrong door.

With ordinary mail there is no sheriff’s return of

service to provide some assurance that the sum-

mons was actually posted and when it was

posted; in entering a default, the court can relay

[sic] only on post office routine to deliver mail

promptly and return undeliverable mail.

Although the Supreme Court upheld the use of

first class mail service in Mullane v. Central

Hanover Bank & Trust Co., it was in the context of

an action more like class litigation than individ-

ual litigation. Given these defects in service by

ordinary mail, the wise course is to consider the

caveat in Greene as a warning not to use ordi-

nary mail as a routine method of-substituted

service.

Id. at 6 (footnotes omitted).

The parties did not supply, and we are unable to find,

empirical data reflecting the rate of success of the United

States Postal Service in delivering first-class mail. The

Postal Service does provide performance data relating to

average days to deliver from overnight service areas,

from two-day service areas, and from three-day service

areas. This data is compiled by Price Waterhouse under

contract to the Postal Service, and provides figures for 96

cities and the nation. Data for September 14, 1996, to

December 6, 1996, disclose that the aggregate on-time

Fn — TT = Ht -——I —!é_ Z,

App. 23

delivery ranges from 76 percent to 91 percent. These

figures do not, however, disclose how many pieces of

first-class mail were not delivered.

Notwithstanding the concerns about the use of mail

without a signed returned receipt or waiver of service to

obtain personal jurisdiction, there is strong precedent and

rather extensive experience that supports the use of first-

class mail for that purpose. That precedent may be found

in Federal Bankruptcy Rule 7004, and in the 1976

amended version of its predecessor Rule 704. Prior to the

1976 amendment, Rule 704(c) permitted service of sum-

mons, complaint, and notice of trial upon competent indi-

viduals “by any form of mail requiring a signed receipt.”

The 1976 amendment permitted such service anywhere

within the United States “by first-class mail postage pre-

paid.” Successor Rule 7004(b), adopted in 1983, continues

the practice of permitted service of the summons and

complaint by first-class mail, and provides that the mail-

ing may be made “to the individual’s dwelling house or

usual place of abode [sic], or “to the place where the

individual regularly conducts a business or profession.”

Unlike the procedure specified in Fed. R. Civ. P. 4, no

acknowledgment of waiver of service is required to

accomplish service under this Rule. Moreover, this

method of service may be made in “non-core” as well as

“core” proceedings, so that it is recognized as an effective

means of acquiring original personal jurisdiction over a

Percent on time, overnight to nation - 90.77 percent

Percent on time, two-day to nation - 75.90 percent

Percent on time, three-day to nation - 79.01 percent

App. 24

stranger to the bankruptcy proceedings in a contested

matter.

The constitutional sufficiency of notice given pur-

suant to Bankruptcy Rule 7004 and its predecessor rule

has been upheld. Matter of Park Nursing Center, Inc., 766

F.2d 261 (6th Cir. 1985); In Re M & L Business Mach. Co.,

Inc. 190 B.R. 111 (D.Colo. 1995); In Re Kim, 163 B.R. 157

(9th Cir. BAP 1994); In Re Cossio, 163 B.R. 150 (9th Cir.

BAP 1994), aff'd, 56 F.3d 70 (9th Cir. 1995); Leavell v.

Karnes, 143 B.R. 212 (S.D. Ill. 1990); Windsor Communica-

tions Group, Inc. v. Grant, 75 B.R. 713 (E.D. Pa. 1985). It

should be noted, however, that two of the three judges in

Matter of Park Nursing Center, Inc. supra, believed that

first-class mail service satisfied due process requirements

only if interpreted in the light of Federal Rules of Civil

Procedure 55(c) and 60(b) so that

[I]f a default judgment in bankruptcy proceed-

ings is entered against an individual who,

through no fault of his own, failed to receive

actual notice by first-class mail, then that judg-

ment should be set aside under these rules upon

a showing of meritorious defense.

766 F.2d at 263.

These rule changes have been upheld on the basis

that special requirements of bankruptcy cases justify a

more expeditious and less costly means of service than

might be required in an ordinary civil case.

In recognition of the time constraints in bank-

ruptcy proceedings and to insure simple and

expeditious service of defendants to such pro-

ceedings, Congress enacted Bankruptcy Rule

7004(b) to allow for service by mail alone.

App. 25

In Re M & L Business Mach. Co., Inc., supra, at 115.

What is needed in bankruptcy Proceedings

is a form of notice which is likely to achieve

actual notice in a large volume of cases but is

not overly expensive or time consuming. Bank-

ruptcy proceedings occupy a large and impor-

tant place in our federal judicial system. In 1983,

there were 490,717 petitions filed in bankruptcy

court, and of the 842,229 bankruptcy proceed-

ings pending, 123,442 were adversary proceed-

ings.

Matter of Park Nursing Center, Inc., supra, 766 F.2d at 263.

Additionally, adjudication of the rights of many persons

and entities may be delayed in bankruptcy proceedings

pending the determination of adversary proceedings.

As we pointed out earlier, the concept of due process

in not static - the process that is due may change accord-

ing to the circumstances. Necessity may, therefore, be a

valid factor in the due Process equation in the balancing

of the interest of the state against the interest of the

individual. Historically, courts have permitted the

employment of potentially less effective methods of ser-

vice where more effective methods have been attempted

and have failed, or are otherwise impractical. Notification

of lien holders in tax sale proceedings by mail instead of

individual personal service may be adequate because of

the state’s interest in facilitating tax sales, the presump-

tion of reasonable interest in tax sale proceedings by the

lien holders, and the difficulty and expenses of personal

service, but notice by publication may not be sufficient

when the identities of creditors are reasonably ascertain-

able. Mennonite Board of Missions v. Adams, 462 U.S. 791,

App. 26

103 S.Ct. 2706, 77 L.Ed.2d 180 (1983). Reasonable risks

that the method of notice employed will not reach each

individual affected may be tolerated when the action is

against a class of persons and notice is reasonably certain

to reach most of those interested in objecting. Mullane,

supra, 339 U.S. at 306.

Turning to the case before us, we consider whether

there are any special or unique circumstances that would

justify relaxation of the ordinary and available methods

of service that offer a considerably higher degree of prob-

ability of actual notice. In other words, given the avail-

ability of personal service by officials or private process

servers, or service by restricted delivery mail, what state

interest is present in this case that would justify resort to

the significantly less certain procedure of first-class mail?

We find but one circumstance that may distinguish this

case from any other in personam action: the fact that the

defendants are nonresidents of the Commonwealth of

Virginia.

The Supreme Court has recognized that some distinc-

tion may be drawn between the methods employed to

serve residents and some to serve nonresidents.

Personal service has not in -all circumstances

been regarded as indispensable to the process

due to residents, and it has more often been

held unnecessary as to nonresidents. We disturb

none of the established rules on these subjects.

Mullane, supra, 339 U.S. at 314. Additionally, the fact of

nonresidency has been held sufficient in some instances

to uphold disparate treatment when a challenge has been

made under the Equal Protection Clause. See, e.g., Owens

App. 27

v. ILF.P. Corp., 374 F.Supp. 1032 (W.D. Ky. 1974); Castelline

v. Goldfine Truck Rental Service, 49 Del. 155, 112 A.2d 840,

844 (1955).

We do not, however, view the factor of nonresidency

as being of such Significance or compelling interest as to

justify the shifting of the balance to a point where notice

by first-class mail alone will be sufficient to confer per-

sonal jurisdiction over an individual defendant. We fail to

see why traditional methods of personal service on resi-

dents become so much more difficult or costly when

applied to nonresidents. Certainly there may be some

additional inconvenience or expense when dealing with

officials or private process servers in another state, but

this small difference hardly justifies the significant step of

permitting first-class mail service. Moreover, service by

mail requiring a signed return receipt would be no more

difficult or expensive in the case of a nonresident than

that of a resident. Virginia does not permit first-class mail]

service of its residents in personal jurisdiction cases

except where more conventional means have failed, and

then only in conjunction with posting of the premises.”

Code of Virginia (1950, 1992 Repl. Vol., 1996 Cum. Supp.)

§ 8.01-296.

Virginia does permit a direct attack against a void

judgment, if made within two years, § 8.01-428(A)(ii), and

7 Interestingly, Virginia’s statutes dealing with long-arm

jurisdiction over nonresident motorists and owners or operators

receipt requested, a copy of the process to the person named

therein... .” Code of Virginia (1950, 1992 Repl. Vol.) §8.01-312

App. 28

a collateral attack by an independent equity action if a

party can show nonreceipt of the first-class mail notice

and the existence of a defense to the action, § 8.01-428(D).

As the Supreme Court has said, however, in Armstrong v.

Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965),

actions for relief from a default judgment that place a

burden of proof upon the petitioner that he would not

have borne if the notice had been sufficient in the first

instance are insufficient to overcome the initial deficiency.

The heart of the question is whether the means

adopted by the Virginia legislature to notify nonresident

defendants of an in personam action against them

amounted to “a reliable means of acquainting interested

parties of the fact that their rights are before the courts”

and “means... such as one desirous of actually inform-

ing the absentee might reasonably adopt to accomplish

it,” Mullane, supra, 339 U.S. at 315, when “the reasonable-

ness of the notice provided . . . [is] tested with reference

provided to the “feasible and customary alternatives and

supplements to the form of notice chosen,” Greene v.

Lindsey, supra, 456 U.S. at 454, quoting in part from Mul-

lane, 339 U.S. at 315. We hold that the means selected by

the Virginia legislature to accomplish notice of service of

original process in this case does not measure up to this

test, and are constitutionally inadequate to afford the due

process required by the United States Constitution. The

method chosen to acquire personal jurisdiction over non-

resident individuals —- notice by first-class mail — “is not

reasonably calculated to reach those who could easily be

informed by other means at hand.” Mullane, supra, 339

U.S. at 319.

App. 29

Accordingly, although the judgment may remain

valid where entered until there is a contrary ruling by a

court of competent jurisdiction, we decline to grant full

faith and credit to the judgment because of our finding

that the Virginia trial court did not acquire personal

jurisdiction over these defendants because of the consti-

tutional inadequacy of notice.

JUDGMENT OF THE COURT OF

SPECIAL APPEALS REVERSED;

CASE REMANDED TO THAT

COURT WITH DIRECTIONS TO

REVERSE THE JUDGMENT OF

THE CIRCUIT COURT FOR

CARROLL COUNTY; COSTS IN

THIS COURT AND IN THE

COURT OF SPECIAL APPEALS

TO BE PAID BY RESPONDENT.

App. 30

IN THE COURT OF APPEALS OF MARYLAND

No. 93

September Term, 1995

GERARD P. MISERANDINO AND

KAREN L. MISERANDINO

RESORT PROPERTIES, INC. et al.

Eldridge

Rodowsky

Chasanow

Karwacki

Bell

Raker

McAuliffe, John F.

(retired, specially assigned)

JJ.

Dissenting Opinion by Chasanow, J.,

in which Rodowsky and

Raker, JJ., join

Filed: February 12, 1997

A majority of this Court decides today that the notice

provisions of Virginia’s long-arm statute are unconstitu-

tional. I respectfully dissent. If statutorily authorized ser-

vice of process in a long-arm jurisdiction case is actually

received by the defendant, whether effectuated by first-

class mail or certified mail with restricted delivery and

App. 31

return receipt requested, the court ought to have in per-

sonam jurisdiction. The focus of this Court should be on

whether the Miserandinos actually received the stat-

utorily authorized mail service. If they did, they received

all of the process they were due.

If the Miserandinos were served with process in the

Virginia proceeding, then the judgment against them

should be given full faith and credit. The Miserandinos

maintain that they did not receive service, but their

uncorroborated denial of service is not necessarily ade-

quate to overcome the presumption that service was

properly made. Therefore, this case should be remanded

in order to afford the Miserandinos an opportunity to

establish that they were not served.

This case does not arise from a failure to follow the

applicable statute governing service of process. It is

undisputed that Resort strictly complied with the notice

requirements of Virginia's long-arm statute. Specifically,

Resort served the Secretary of the Commonwealth with

process, accompanied by an affidavit setting forth the

Miserandinos’ address as “418 Ridge Rd., Westminster,

Md. 21157,” and Stating that the Miserandinos were non-

residents of the Commonwealth. The Secretary in turn

certified that copies of these papers “were forwarded by

first-class mail” to the Miserandinos.

The trial judge concluded that the Miserandinos

received due process of law, and denied the Miseran-

dinos’ Motion to Strike Entry of the Judgment. Although

it is not clear from the record, this ruling may have

App. 32

included a determination that the Miserandinos received

the notice mailed to each of them by the Virginia Secre-

tary of the Commonwealth. Certainly, the Miserandinos’

mere affidavit of nonreceipt of service did not con-

clusively rebut the strong presumption of service. Until

there is a hearing to rebut the presumption of service, we

must assume that the Miserandinos received the mailed

notice. If the Miserandinos received mailed notice of the

Virginia suit pursuant to the Virginia statute, this Court

should not give them standing to challenge the constitu-

tionality of the notice provision in the Virginia statute.

Recently in Academy of IRM v. LVI Environmental Ser-

vices, Inc., __ Md. __, __. A.2d ___ (1997) (No. 3, 1996

Term, Slip Op. at 12), this Court held that “the return of

service ..., with its accompanying return receipt, prima

facie evidences service of process... .” “In a particular

case, [however,] it may become a question of fact whether

the person who signed the return receipt was an agent for

accepting the delivery of certified mail on behalf of the

corporate officer to whom delivery was restricted.” ___

Md. at __, __ A.2d at ___ (No. 3, 1996 Term, Slip. Op. at

13). Because no evidence was produced in Academy of

IRM to contradict the prima facie validity of service, we

upheld the service of process. __ Md. at ___, ___ A.2d at

__. (No. 3, 1996 Term, Slip. Op. at 16).

How much of a burden of proof will be placed on a

defendant to prove nonreceipt of service will depend on

the reliability of the method of service chosen. Where

there is a sheriff's return of service, very strong evidence

is necessary to impeach the return. In Weinreich, Apm’x v.

Walker, 236 Md. 290, 203 A.2d 854 (1964), we said:

App. 33

“It is true that there may be successful

impeachment of service seemingly valid on the

record but, in all the Maryland cases in which

there has been, the circumstances have ranged

from virtual demonstration of the lack of service

(as in German v. Slade, 42 Md. 510, in which a

defendant swore he had not been served and the

deputy sheriff swore he had served the other

defendants but not that one and had entered the

notation of service by mistake) to clear and con-

vincing evidence that there had not been ser-

vice, in the form of corroboration of the

defendant's claim that there had not been, by

independent disinterested witnesses, plus lack

of refutation, when challenged, by the sheriff or

others. See, for example, Master v. Master, 223

Md. 618[, 166 A.2d 251] (the defendant wife

swore she was working in Washington when she

was said to have been summoned and was cor-

roborated by her employer’s payroll records

and check); Little v. Miller, supra (the defendant,

a seaman, swore he was on a voyage when he

was said to have been served and official Coast

Guard records supported him); Harvey v. Slacum,

supra (husband and wife swore they had never

been summoned and the deputy sheriff did not

know whether he had served the father or his

son, could not recognize the husband in the

courtroom and could not remember the wife or

say that he had summoned her); Plummer v.

Rosenthal, 178 Md. 149[, 12 A.2d 530] (sworn

denial by Earl Rosenthal of any service; sheriff

identified the brother of the defendant, Irvin, as

the man he had summoned); Piedmont-Mt. Airy

Guano Co. v. Merritt, 154 Md. 226[, 140 A. 62]

(father said to have been served at home of his

son; sworn denial of service plus corroboration

App. 34

that the father never at any time was at son’s

home at the hour mentioned by the sheriff; sum-

mons for both father and son were found by

son’s wife on his bureau and sheriff was highly

uncertain in attempted identification); Pattison v.

Hughes, 80 Md. 559[, 31 A. 320] (four witnesses

swore sheriff was completely drunk when he

called and said only ‘I want you to come Ellicott

City’; sheriff did not deny it).”

Weinreich, 236 Md. at 297, 203 A.2d at 857.

Compliance with the statutory requirements for ser-

vice in the instant case gives rise to a presumption that

service was properly made. Academy of IRM, __ Md. at

__, __ A.2d at __ (No. 3, 1996 Term, Slip Op. at 12).

Hence, the burden is on the Miserandinos to show by

clear and satisfactory evidence that they did not receive

the mailed summons. The presumption of service

afforded by first-class mail service ought to be the easiest

presumption of service to rebut, but a mere affidavit of

nonreceipt without corroborating facts does not neces-

sarily rebut the presumption of receipt of mailed service.

The trial judge did not find that the Miserandinos failed

to receive the mailed service; in fact, the trial judge’s

finding that the Miserandinos were not denied due pro-

cess may have encompassed a finding that they did

receive the mailed service. ’

At a hearing to determine whether the Miserandinos

received the mailed notice, the factors that the trial judge

could weigh against the Miserandinos’ denial of service

are the presumption of proper mailing based on the affi-

davit of the Secretary of the Commonwealth of Virginia;

the fact that the address was the correct home address

App. 35

and that other mailed service in the Maryland case was

received at that address; and any possible defenses the

Miserandinos have to the Virginia action. The Miseran-

dinos’ possible defenses to the Virginia action are rele-

vant to receipt of service based on the assumption that a

person with a strong defense would be unlikely to ignore

notice of a suit, but a person with no defense might be

likely to ignore or forget about notice of a suit. Instead of

refusing to give full faith and credit to the Virginia judg-

ment, this Court should remand the case to give the

Miserandinos an opportunity to rebut the presumption of

service and to establish a denial of due process by prov-

ing an actual lack of notice and to proffer some defense to

the Virginia action.

Il.

The majority clearly defines what it sees as the issue

in this case: “whether initial and original service of pro-

cess by first-class mail is constitutionally sufficient to

confer in personam jurisdiction over a nonresident indi-

vidual in a long-arm jurisdiction case.” ae ee

se, 2, 0 (Majority Op. at 7). It then

recognizes the significant body of law and experience

which is contrary to its holding when it says, “there is

strong precedent and rather extensive experience that

supports the use of first-class mail... . ” — << oe

— A.2d at __ (Majority Op. at 19). The Court goes on to

acknowledge that service by first-class mail is probably

adequate to acquire jurisdiction in bankruptcy cases. But,

according to the majority, first-class mail is not adequate

to acquire jurisdiction over nonresidents in long-arm

cases because it “ ‘is not reasonably calculated to reach

App. 36

those who could easily be informed by other means at

hand.’” ___ Md. at ___, __ A.2d at ___ (Majority Op. at

24) (quoting Mullane v. Central Hanover B. & T. Co., 339

U.S. 306, 319, 70 S.Ct. 652, 660, 94 L.Ed. 865, 876 (1950)).

The majority seems to indicate that the only acceptable

form of mail service is “certified mail with restricted

delivery and return receipt stating to whom delivered

and the date and address of delivery.” __ Md. at __|

__. A.2d at (Majority Op. at 11) (citing Maryland Rule

2-121(a)). Hereinafter, I will refer to that kind of mail as

“certified” mail, but the majority’s requirement raises

interesting questions, such as, would certified mail with-

out restricted delivery, but which is signed for by the

defendant, also be inadequate to acquire in personam

jurisdiction in the same manner that ordinary mail actu-

ally delivered is insufficient to acquire in personam juris-

diction?

The majority suggests that if “certified” mail were

substituted for first-class mail in Virginia’s long-arm stat-

ute, the statute would be constitutional. This type of mail

does not increase the likelihood that the mail will arrive

at the address to which it was sent. If the address is

correct, then ultimate receipt by the defendant is about as

likely with first-class mail as with certified mail. The use

of “certified” mail merely provides corroborative evi-

dence that the material is actually sent, and further pro-

vides a record of dispatch and delivery. See State v. Barnes,

273 Md. 195, 209, 328 A.2d 737, 746 (1974) (stating that

“[t]he only logical purpose to be served by directing that

the notice be delivered by certified mail is to provide

corroboration for bald assertions of having given such

notice and a means of tracing and establishing the date of

App. 37

receipt should a dispute concerning the delivery of notice

arise”); Holmes v. Randolph, 610 N.E.2d 839, 845 (Ind.

1993) (stating “use of certified mail will provide a better

record of receipt but not necessarily increase the proba-

bility the addressee will actually receive the notice. Certi-

fied mail is not insured, and ‘is dispatched and handled

in transit as ordinary mail.’ U.S. Postal Service, Domestic

Mail Manual subch. 912.11 (Issue 43: June 1992)”).

Furthermore, the majority appears to equate first-

class mail with the specific method of notice prescribed

by Virginia’s long-arm statute. In fact, the method of

notice under the statute surpasses ordinary first-class

mail in that, like “certified” mail, it too provides a record

of dispatch. The statute requires the Secretary of the

Commonwealth, rather than the plaintiff, to mail the

notice and to certify the date and fact of mailing. Hence, a

party disinterested in the litigation issues a record of

dispatch. This feature enhances the reliability of the

notice.

The majority’s insistence on registered or certified

mail also fails to take into account the fact that these

types of mail are not available in certain instances. The

postal regulations declare certain matters ineligible for

registration. Mail which is “[a]ddressed to post offices to

which it cannot be transported safely,” for example, may

not be registered. United States Postal Service, Domestic

Man Mawnuet, Issue 48, $911.1.4, at S-19 (1995) (hereinaf-

ter “DMM”). In addition, mail that requires a signature is,

as a practical matter, often unavailable in certain rural

areas. Rural letter carriers must dismount from their

vehicles in order to deliver registered, certified, or return-

receipt mail only if the address is “on the line of travel, or

App. 38

within one-half mile of the route and has a passable road

leading to it.” Rurat Carrier Duties AND RESPONSIBILITIES

§ 313.3, at 63 (1991). If an individual lives farther than

one-half mile from the rural route, a letter carrier need

not deviate from his or her route. Therefore, return-

receipt mail sent to such a remote address is undeliver-

able, unless the addressee takes affirmative steps to

retrieve the mail at a post office. The Uniform Probate

Code specifically references such difficulties with rural

route delivery and in some circumstances permits service

by ordinary mail. See, e.g., Idaho Code § 15-4-303 (1996)

(comment to official text) (stating that “[t]he provision for

ordinary mail as a substitute for registered or certified

mail is provided because . . . registered mail may not be

available to reach certain addresses . . . and also certified

mail may not be available as a process for service because

of the method of delivery used [rural delivery and star

route delivery]”); Mont. Code Ann. § 72-4-203 (1995)

(same); N.D. Cent. Code § 30.1-25-03 (1995) (same); Utah

Code Ann. § 75-4-303 (1996) (same).

In adopting a long-arm statute that provides for ser-

vice by first-class mail the Virginia legislature concluded

that this method is reasonably calculated to inform non-

residents of the pendency of a judicial proceeding against

them. This Court should accept the general validity of

that determination, and only deny full faith and credit if

the mailed process has not been received. Notice by first-

class mail certainly has been upheld in a number of cases,

and ample authority exists to support Virginia’s decision

to employ it in the context of notice to nonresidents who,

App. 39

because of real estate transactions or other contacts with

the Commonwealth, are amenable to service.!

Il.

My primary difficulty with the majority’s approach is

that it seems to assume that first-class mailed service

(hereinafter “mailed service”) is constitutionally permis-

sible to establish in personam jurisdiction in some types of

law suits, but not others. Under the majority’s approach,

if mailed service is not constitutionally permissible in a

particular type of lawsuit, then Statutorily permissible

mailed service does not establish in personam jurisdiction

even if received. The majority’s test for determining

when mailed service is permissible is at best vague and

uncertain, yet the majority does acknowledge that mailed

service is adequate in some causes of action, such as

bankruptcy. A better approach would be to hold that

mailed service is constitutionally permissible in any form

of action, and the decision as to when it may be autho-

tized should be left to the legislative or rule making

authorities.2 Some legislatures may choose to adopt a

statute that comports with merely the minimum require-

ments of due process, while others may choose to

* In the instant action, the Miserandinos do not dispute that

they had sufficient contacts with the Commonwealth to

otherwise subject them to the jurisdiction of the Virginia courts.

? Even if first-class mail service is permitted, litigants

should be cautious in using this method of service because if the

defendant does not respond, any judgment might be vulnerable

to a due process attack. It is easier to prove nonreceipt of first-

class mailed notice than it is to prove nonreceipt of certified

mail notice where there is a written return receipt.

ng App. 40

enhance the constitutional minimum. As one legal com-

mentator has observed:

“Some service-by-mail statutes require only

the satisfaction of minimum constitutional stan-

dards. Such statutes permit the use of ordinary

mail... .

* * *

In contrast . . . , most service-by-mail stat-

utes contain at least some requirements that are

not constitutionally mandated. For example,

many statutes demand that the plaintiff use reg-

istered or certified mail. . . . ” (Footnotes omit-

ted).

Service of Process by Mail, 74 Mich. L. Rev. 381, 385-86

(1975).

There are numerous Maryland rules and statutes that

authorize service by first-class mail. These rules and stat-

utes may be of questionable validity as a result of the

Court’s decision in the instant case. A few examples

should suffice.

To begin with, it is ironic that the Maryland proceed-

ings in the instant case were initiated by service on the

Miserandinos by statutorily authorized first-class mail

service. The Uniform Enforcement of Foreign Judgments

Act, codified in Maryland at § 11-801 et seq. of the Courts

and Judicial Proceedings Article, provides in § 11-803:

“(a) Addresses of debtor and creditor to be

furnished. - At the time a foreign judgment is

filed, the judgment creditor or the judgment

creditor’s attorney shall file with the clerk of the

court an affidavit showing the name and last

App. 41

known post office address of the judgment

debtor and the judgment creditor.

(b) Clerk to mail notice of filing to debtor. -

(1) The clerk promptly shall mail notice of the

filing of the foreign judgment to the judgment

debtor at the address given and shall note the

mailing in the docket.”

Notice of the Maryland action against the Miserandinos,

therefore, was addressed and sent to the same address in

the same manner as was used to obtain service in the

Virginia action; yet, this Court today holds that this

method of notice is violative of due process.

Several other statutes similarly provide for service of

process by first-class mail. As the majority notes, “[t]he

Maryland legislature has recently enacted a bill that per-

mits the giving of first notices in an estate case by first-

class mail....” _ Md... at mata "TE (Majority Op.

at 17). This provision is codified in the Maryland Code

(1974, 1996 Supp.), Estates and Trusts Article, § 1-103.

Unfortunately, doubt is cast on the constitutionality of

that statute when the Court states that “[t]his Court has

not had an opportunity to pass upon the constitutional

sufficiency of notice by first-class mail in this context, and

we intimate no opinion on that question.” __ Md. at pitket

— A.2d at __ (Majority Op. at 18).

Title 6 of the Maryland Rules governs all matters in

the orphan’s courts and before the registers of wills relat-

ing to the settlement of decedents’ estates. Rule 6-125 of

that title was recently adopted by this Court and is the

general rule on service. Rule 6-125 provides:

App. 42

“RULE 6-125. SERVICE

(a) Method of Service - Generally. -

Except where these rules specifically require

that service shall be made by certified mail,

service may be made by personal delivery or by

ordinary mail. Service by certified mail is com-

plete upon delivery. Service by ordinary mail is

complete upon mailing. If a person is repre-

sented by an attorney of record, service shall be

made on the attorney pursuant to Rule 1-321.

Service need not be made on any person who

has filed a waiver of notice pursuant to Rule

6-126.” (Emphasis added).

Did this Court recently adopt an unconstitutional rule? I

doubt it.

Other actions commenced by first-class mail are now

questionable because first-class mail may be insufficient

to acquire in personam jurisdiction. These include judicial

review actions in workers’ compensation cases initiated

by first-class mail service. Rule 7-202(d)(2) provides:

“(2) Service by Petitioner in Workers’ Com-

pensation Cases. —- Upon filing a petition for judi-

cial review of a decision of the Workers’

Compensation Commission, the petitioner shall

serve a copy of the petition by first-class mail on

the Commission and each other party of record

in the proceeding before the Commission.”

Even process initiating criminal proceedings may be

served on a defendant by first-class mail under Rule

4-212. That rule provides:

: “(a) General. - When a charging docu-

ment is filed or when a stetted case is

rescheduled pursuant to Rule 4-248, a summons

App. 43

or warrant shall be issued in accordance with

this Rule. Title 5 of these rules does not apply to

the issuance of a summons or warrant.

(b) Summons - Issuance. - Unless a war-

rant has been issued, or the defendant is in

custody, or the charging document is a citation,

a summons shall be issued to the defendant (1)

in the-District Court, by a judicial officer or the

clerk, and (2) in the circuit court, by the clerk.

The summons shall advise the defendant to

appear in person at the time and place specified

or, in the circuit court, to appear or have counsel

enter an appearance in writing at or before that

time. A copy of the charging document shall be

attached to the summons. A court may order the

reissuance of a summons.

charging document shall be served on the defendant

by mail or by personal service by a sheriff or other

peace officer, as directed (1) by a judicial officer

in the District Court, or (2) by the State’s Attor-

ney in the circuit court.” (Emphasis added).

These statutes and rules are just some of the first-

class mail provisions that may be cast in doubt by the

majority’s opinion in the instant case. Do these statutes

and rules have “special or unique circumstances that

would justify relaxation of the ordinary and available

methods of service... 2” “a: 6S See sa

(Majority Op. at 22). We do not know, and the test for

special and unique circumstances seems, at best, murky.

Apparently bankruptcy Proceedings probably pass the

test, estate and probate Proceedings might pass the test,

but long-arm suits do not pass the test.

App. 44

A better rule would be that, where a permissible

method of service of process reasonably designed to

reach the defendant is used but does not reach the defen-

dant through no fault or lack of diligence of the defen-

dant and where a judgment is entered against the

defendant based or that service of process, the defendant

will be deemed to have been denied due process when

the failure to receive service prevented the assertion of a

viable defense to the cause of action. Of course a heavy

burden will be placed upon the defendant to prove non-

receipt of service. The amount of proof necessary to

establish nonreceipt of service will depend upon the

method of service chosen by the plaintiff. This rule is

entirely consistent with this Court’s prior holdings.>

3 It is interesting to speculate that the majority might have

held first-class mail service to be constitutional had the Virginia

statute required the Secretary of the Commonwealth to give

notice by registered mail return-receipt requested, restricted

delivery, but the Secretary only gave notice to the Miserandinos

by first-class mail, as in the instant case. This Court has

indicated that the use of first-class mail is adequate, even

though the statute requires registered mail, if the first-class mail

is actually received. This Court has said:

“even when a statute requires that a notice be given

by registered mail it has been held that notice actually

received, though by regular mail, is valid. See 58

Am.Jur.2d, Notice § 27 (1971); Crummer v. Whitehead,

230 Cal. App.2d 264, 40 Cal. Rptr. 826 (1964); Volandri

v. Taylor, 124 Cal. App. 356, 12 P.2d 462 (1932); Steele v.

Trustees of Pittsburg Schools, 121 Cal. App. 419, 9 P.2d

217 (1932); Drake.v. Comptroller of City of New York, 278

App. Div. 317, 104 N.Y.S.2d 774 (1st Dept. 1951).”

State v. Barnes, 273 Md. 195, 210, 328 A.2d 737, 746 (1974).

App. 45

The majority and I agree that:

“At a minimum, the notice must be ‘reasonably

calculated, under all the circumstances to

apprise interested parties of the pendency of the

action and afford them an opportunity to pre-

sent their objections.’ ” '

site A OR eB 2 (Majority Op. at 8) (quot-

ing Mullane, 339 U.S. at 314, 70 S.Ct. at 657, 94 L.Ed. at

873). First-class mail meets that test, but it is up to the

legislative or rule making body to authorize such service,

and when authorized, it should be up to the litigants to

decide whether to use first-class mail or an easier-to-

prove form of service that would better insulate judg-

ments from later collateral attack for nonreceipt of ser-

vice.4

* First-class mail service would be less expensive and less

burdensome to plaintiffs as well as defendants and ought to be

available as an optional form of service in many causes of action.

Plaintiffs in some instances, however, should prefer “certified”

over first-class mail, not because the former increases the

probability of service, but because it increases the evidence of

service and makes any judgment less vulnerable ‘to a later

challenge. Whether first-class mail is more or less reliable than

“certified” mail often depends upon the individual to be served,

rather than the nature of the cause of «ction. If “certified” mail is

sent to the home address of a defendant or defendants who work

during postal delivery hours or travel frequently, and who find it

too difficult or inconvenient to go to the post office, such mail wiil

often be returned as “unclaimed.” A prospective plaintiff who

wishes to serve a working defendant at a home address may wish

to use ordinary mail and to consider later a back-up form of

service if the defendant does not respond and there may be some

doubt about receipt of service.

App. 46

The law presumes that a letter properly mailed is in

fact received. Mohr v. Universal C.I.T. Corp., 216 Md. 197,

204, 140 A.2d 49, 51 (1958) (referring to “the universal

rule to the effect that the receipt of a letter by the

addressee is presumed, when it is shown that the letter,

properly stamped and addressed, was posted in the

mails”). Although current statistics are unavailable, a law

review article published in 1987 reported that:

“[RJecords of complaints of nondelivery of all

first-class mail show an annual figure of approx-

imately 44,000 claims of nonreceipt out of a total

first class mail volume of over 72 billion pieces,

for a rate of .00006 of 1 percent (or about 1 claim

for every 2 million pieces of mail). Actual loss

experience is presumably considerably less than

even this tiny fraction of mail volume.” (Foot-

notes omitted)

Kent Sinclair, Service of Process: Rethinking the Theory and

Procedure of Serving Process Under Federal Rule 4(c), 73 Va.

L. Rev. 1183, 1206 (1987) (citing United States Postal Serv.,

ANNUAL REPORT OF THE POSTMASTER GENERAL 26 (1985)). The

Supreme Court has referred to the mails as ” ‘an efficient

and inexpensive means of communication,’ upon which

prudent men will ordinarily rely in the conduct of impor-

tant affairs,” see Greene v. Lindsey, 456 U.S. 444, 455, 102

S.Ct. 1874, 1880, 72 L.Ed.2d 249, 258 (1982) (citation omit-

ted), and has recognized mail service as a constitutionally

sufficient means of providing notice in a number of cases.

See Tulsa Collection Servs. v. Pope, 485 U.S. 478, 490, 108

S.Ct. 1340, 1347, 99 L.Ed.2d 565, 578 (1988) (stating that

“[w]le have repeatedly recognized that mail service is an

inexpensive and efficient mechanism that is reasonably

App. 47

calculated to provide actual notice”). In Wuchter v. Piz-

zuti, 276 U.S. 13, 48 S.Ct. 259, 72 L.Ed. 446 (1928), for

example, the Supreme Court assessed the validity of a

New Jersey statute that permitted notice to nonresident

motorists to be accomplished by service upon the Secre-

tary of State. The Court observed that this method of

service “would not be fair or due process unless such

officer or the plaintiff is required to mail the notice to the

defendant, or to advise him, by some written communication,

so as to make it reasonably probable that he will receive

actual notice.” Wuchter, 276 U.S. at 19, 48 S.Ct at 260, 72

L.Ed. at 449 (emphasis added). Because the New Jersey

statute failed to provide for such communication by mail,

the Court found the statute to be unconstitutional. The

method of notification provided under the Virginia stat-

ute, in contrast, appears to conform with Wuchter’s pre-

cise requirements; service was made upon the Secretary

of the Commonwealth, who then mailed the notice to the

defendants.

The Supreme Court made similar reference to the

mail system as an acceptable method of notification in

Schroeder v. New York, 371 U.S. 208, 83 S.Ct. 279, 9 L.Ed.2d

255 (1962), a case which involved a municipality’s deci-

sion to divert a portion of a river. With regard to land-

owners whose property rights would be adversely

affected by this action, the relevant statute required

notice by publication. Schroeder, 371 U.S. at 209, 83 S.Ct.

at 280-81, 9 L.Ed.2d at 257. The Supreme Court found that

while newspaper publications and posted notices did not

provide the “quality of notice” required by the Due Pro-

cess Clause, the municipality’s constitutional obligation

would have been discharged by “the mailing of a single

App. 48

letter.” Schroeder, 371 U.S. at 213-14, 83 S.Ct. at 283, 9

L.Ed.2d at 260. See also Mennonite Board of Missions v.

Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d

180, 188 (1983) (stating that “[nJotice by mail or other

means as certain to ensure actual notice is a minimum

constitutional precondition. . . . ” in the context of notice

to mortgagee of tax sale).

In Mullane, supra, the Supreme Court specifically ref-

erenced ordinary mail as an acceptable means of provid-

ing notice. At issue in Mullane was the validity of notice

by publication to trust fund beneficiaries of a judicial

settlement of fund accounts. 339 U.S. at 307-09, 70 S.Ct. at

654-55, 94 L.Ed. at 869-71. Some of the beneficiaries were

not residents of the state. Mullane, 339 U.S. at 309, 70 S.Ct

at 655, 94 L.Ed. at 871. The Court held that notice by

publication was constitutionally inadequate, and stated

that those beneficiaries whose whereabouts were ascer-

tainable should have been informed of the accounting “at

least by ordinary mail.”5 Mullane, 339 U.S. at 318, 70 S.Ct.

at 659, 94 L.Ed. at 875 (emphasis added).

In assessing the minimal requirements of due pro-

cess, therefore, the Supreme Court has repeatedly refer-

enced the ordinary mail system as a constitutionally

sufficient mechanism by which to provide notice. Vir-

ginia’s decision to permit service by mail, therefore,

seems in accord with the minimum requirements of due

process as defined by the Supreme Court.

5 For those beneficiaries whose whereabouts could not be

ascertained with due diligence, notice by publication was held

to be sufficient. Mullane v. Central Hanover B. & T. Co., 339 U.S.

306, 318, 70 S.Ct. 652, 659, 94 L.Ed. 865, 875 (1950).

App. 49

Service by ordinary mail also has been upheld by

numerous lower courts. Service by first-class mail in a

bankruptcy proceeding, for example, withstood direct

constitutional attack in Matter of Park Nursing Center, Inc.,

766 F.2d 261 (6th Cir. 1985). Federal Bankruptcy Rule 7004

Provides in pertinent part: -

“(b) Service by first class mail. Except as pro-

vided in subdivision (h), in addition to the

methods of service authorized by [certain Fed-

eral Rules of Civil Procedure], service may be

made within the United States by first class mail

postage prepaid as follows:

(1) Upon an individual other than an

infant or incompetent, by mailing a copy of

the summons and compiaint to the individ-

ual’s dwelling house or usual place of

abode or to the place where the individual

regularly conducts a business or profes-

sion.”

Fev. R. BANKR. ‘7004(b)(1) (1994, 1996 Cum.Supp.)

(emphasis added). A debtor, against whom a default

judgment in a Chapter 11 bankruptcy proceeding had

been entered, challenged the constitutionality of an ear-

lier version® of this rule on the grounds that: (1) due

Process requires personal service; (2) a method of service

more likely to accomplish service should be attempted

before resorting to first-class mail; (3) safeguards to

App. 50

ensure receipt of a first-class letter were lacking; and (4)

the rule contained no requirement that the address on the

envelope be correct. Park Nursing Center, 766 F.2d at

263-64. In rejecting these assertions, the United States

Court of Appeals for the Sixth Circuit noted that “Mullane

does not require the very best means of serving process,

only a means that is reasonably calculated to reach the

party.” Park Nursing Center, 766 F.2d at 264. In light of

other rules of civil procedure that provide a mechanism

by which to set aside a default judgment, the court con-

cluded that the rule in question satisfies due process. Park

Nursing Center, 766 F.2d at 263-64. Bankruptcy court deci-

sions subsequent to Park Nursing Center have consistently

supported the constitutionality of service by first-class

mail. See, e.g., In Re M&L Business Mach. Co., Inc., 190 B.R.

111, 115-16 (D. Colo. 1995) (observing that “strict compli-

ance with Rule 7004 serves to protect due process

rights. . . . ”); Leavell v. Karnes, 143 B.R. 212, 217 (S.D. Ill.

1990) (stating that “[s]ervice under Rule 7004(b) comports

with the procedural due process requirements identified

by the Supreme Court in Mullane. . . . ”).

The Minnesota Supreme Court, similarly, upheld the

constitutionality of a statute permitting ordinary mail

service upon a nonresident motorist in Schilling v.

Odlebak, 224 N.W. 694 (Minn. 1929). The statute at issue

was strikingly similar to Virginia's long-arm statute.

Specifically, it allowed substituted service upon the Secre-

tary of State “ ‘provided, that notice of such service and a

copy of the process are within ten days thereafter sent by

mail by the plaintiff to the defendant at his last known

address and that the plaintiff's affidavit of compliance

App. 51

with the provisions of this act are attached to the sum-

mons.’ ” Schilling, 224 N.W. at 695 (quoting L. 1927, p.

557, c. 409, 1 Mason Minn. St. § 2684-8) (emphasis added).

Relying in part on Wuchter, supra, the court concluded

that “it is reasonably certain that the defendant will

receive actual notice, and that adequate opportunity is

afforded him to defend.” Schilling, 224 N.W. at 696.

In a more recent decision, the Indiana Supreme Court

upheld a statute that permitted notice of the impound-

ment and potential disposal of abandoned vehicles by

first-class mail. Holmes, suprc. The plaintiff in Holmes

contended that this method oi notification was constitu-

tionally flawed in that it “fail[ed] to provide notice in the

best available manner to assure delivery to the known

owner prior to depriving the owner irrevocably of a

property interest.” 610 N.E.2d at 840. Although the trial

court entered summary judgment in the plaintiff’s favor,

based in part on its conclusion that due process requires

certified mail, return receipt recuested, see id., the Indiana

Supreme Court reversed tha: judgment. Holmes, 610

N.E.2d at 846. The court noted that “[t}he notice by first

men will ordinarily rely in tie conduct of important

affairs.’” Holmes, 610 N.E.2d it 844 (quoting Greene v.

Lindsey, 456 U.S. at 455, 102 S.Ct. at 1880, 72 L.Ed.2d at

258, in turn quoting Mullane, 339 U.S. at 319, 70 S.Ct. at

660, 94 L.Ed. at 876). Applyin; the Mathews v. Eldridge

test, the court concluded that tie method of notification

prescribed by the statute saisfied due process, see

App. 52

Holmes, 610 N.E.2d at 845 (observing that “[t]he risk that

failure of . . . notice will lead to deprivation of an individ-

ual’s vehicle is modest”), and that “[f]irst class mail

notice sent to the record address of the vehicle owner is

reasonably calculated to apprise the owner of the pen-

dency of abandoned vehicle proceedings.” Holmes, 610

N.E.2d at 846. See also Service of Process by Mail, 74 Mich.

L. Rev. at 382, where the author concludes that “service

by mail without a return-receipt requirement complies

with the due process clauses of the fifth and fourteenth

amendments,” (citations omitted), and further “concludes

that, in light of the procedures available to a defendant to

challenge service [by ordinary mail] and to reopen

default judgments entered against him, the requirement

of a signed receipt is unduly harsh on plaintiffs.” Id.

Service by ordinary mail clearly satisfies due process

in a variety of contexts. Virginia has apparently con-

cluded that the use of first-class mail under its long-arm

statute is “reasonably calculated” to reach defendants.

Maryland courts should defer to that assessment and

limit their inquiry to whether the Miserandinos were

afforded due process in the application of this statutory

method of service. Since first-class mail is “reasonably

calculated” to reach a recipient, if the Miserandinos actu-

ally received the mailed service authorized by the Vir-

ginia statute, they have literally received all the process

they were due. I respectfully dissent.

Judges Rodowsky and Raker have authorized me to

state that they join in the views expressed in this dissent-

ing opinion.

App. 53

GERALD P. MISERANDINO * In the Court of

and KAREN L. * Appeals of Maryland

MISERANDINO * No. 93

o : September Term, 1995

RESORT PROPERTIES, INC. *

et al. °

ORDER

The Court having considered the motions for recon-

sideration filed by Resort Properties and the Common-

wealth of Virginia, the petition to intervene, the motion

for special admission, and the answer to the petition to

intervene in the above-captioned case, it is this 8th day of

April, 1997,

ORDERED, by the Court of Appeals, that the motion

for special admission and the petition to intervene be,

and they are hereby, granted and it is further,

ORDERED, that the motions for reconsideration, be,

and they are hereby, denied.

/s/ Robert M. Bell

ief Judge

wry —— eS

App. 54

COURT OF APPEALS OF MARYLAND

CORRECTION

April 8, 1997

(Date)

Please make the following correction in the

opinion in the case of

Gerard P. Miserandino and Karen L. Miserandino

Resort Properties, Inc. et al.

No. 93, September Term, 1995

Please replace page one of the majority opinion with the

one attached.

Thank you,

Yours truly, Ilegible

This case involves a constitutional attack by judg-

ment debtors against a judgment entered against them by

a state trial court in Virginia. The collateral attack on the

judgment was made in the Circuit Court for Carroll

County, Maryland, where the judgment creditor sought to

enforce the judgment. The defendants challenge the basis

for the exercise of long-arm personal jurisdiction by the

Virginia court, as well as the constitutional sufficiency of

the Virginia statutory scheme for the giving of notice to

nonresidents proceeded against under that Common-

wealth’s long-arm jurisdiction statute.

App. 55

I. FACTS

Pursuant to the Uniform Enforcement of Foreign

Judgments Act, Sections 11-801 to-807 of the Courts and

Judicial Proceedings Article, Md. code (1957, 1989 Repl.

Vol., 1992 Cum. Supp.), Resort Properties, Inc. (Resort),

filed a judgment against Gerard and Karen Miserandino,

(defendants) in the Circuit Court for Carroll County on

June 3, 1993. The notice of filing of judgment, mailed by a

court clerk to the defendants, simply informed them that

a judgment of $4,211.82 against them had been filed by

Resort. Thereafter, the defendants filed a motion to strike

the entry of the foreign judgment. From their inspection

of the court’s file, the defendants knew that the judgment

was obtained in Warren County, Virginia and that Resort

was the assignee of North Fork Shenandoah Vacations,

Inc.

In the motion, the defendants alleged by affidavit

made on personal knowledge that they were not served

with process, had no notice, and did not appear in the

Virginia action. They alleged further, that:

Defendants were not subject to the jurisdic-

tion of said Virginia Court in said action, nor

was either of them. . . . Said foreign judgment is

invalid, null, void and of no effect since said

Virginia Court lacked in personam jurisdiction

over defendants, or either of them, in the action

in which that judgment was entered.

Specifically, the motion alleged that neither of the defen-

dants resides in Virginia,

App. 56

GERARD P.

MISERANDINO AND

KAREN L. MISERANDINO

RESORT PROPERTIES, INC.

et al.

IN THE COURT

OF APPEALS OF

MARYLAND

No. 93

September Term, 1995

* &* © &* &# &

MANDATE

TO THE HONORABLE THE JUDGES OF THE COURT

OF SPECIAL APPEALS OF MARYLAND:

WHEREAS the case of Gerard P. Miserandino and

Karen L. Miserandino v. Resort Properties, Inc. et al. came

before you and wherein the judgment of the said Court of

Special Appeals was duly entered on April 11, 1995, as

appears from the transcript of the record of the said

Court of Special Appeals which was brought into the

Court of Appeals by virtue of a writ of certiorari dated

October 16, 1995, and

WHEREAS in the September Term, 1995, the said

cause came on to be heard by the Court of Appeals of

Maryland;

ON CONSIDERATION WHEREOF, it was ordered

and adjudged on February 12, 1997, by the Court of

Appeals of Maryland, that the judgement of the Court of

Special Appeals be reversed; case remanded to that Court

with directions to reverse the judgment of the Circuit

Court for Carroll County; costs in this Court and in the

Court of Special Appeals to be paid by respondent.

NOW, THEREFORE, THIS CAUSE IS REMANDED to

you in order that such proceedings may be had in the

App. 57

cause in conformity with the judgment of this Court as

accord with right and justice, and the constitution and

laws of Maryland, the said writ notwithstanding.

WITNESS The Honorable Robert M. Bell, Chief Judge

of the Court of Appeals of Maryland, this 8th day of

April, 1997.

/s/ Alexander L. Cummings

Clerk

Court of Appeals of Maryland

Filing fee - Court of Special cg, OTe $ 50.00

PE 00 = Petitiga. isis. oe 50.00

4. ., 8 ROIs ore in) Sag RE ee 384.00

nei” RRS A oa bic) 5 he 10.00

. , 2 SPR PSST Ser tate ® 196.80

WU sons acc ac edocs et 10.00

700.80

Motion for reconsideration..................... 50.00

$750.80

COSTS SHOWN ON MANDATE ARE TO BE SETTLED

BETWEEN COUNSEL AND NOT THROUGH THIS

OFFICE. 7

App. 58

IN THE COURT OF APPEALS OF MARYLAND

GERALD P. MISERANDINO and

KAREN L. MISERANDINO,

Appellants,

No. 93

September Term

RESORT PROPERTIES, INC., et 1995

al.

Vv.

(Filed

Appellees, March __, 1997)

and

COMMONWEALTH OF

VIRGINIA, ex rel. SECRETARY

OF THE COMMONWEALTH,

Intervenor/Appellee.

PETITION TO INTERVENE AND

MOTION FOR RECONSIDERATION

COMES NOW the COMMONWEALTH OF VIR-

GINIA, ex rel. Secretary of the Commonwealth (the “Com-

monwealth”), by counsel, and petitions this Court for

leave to intervene in this action. The Commonwealth also

moves this Court, pursuant to Rule 8-605 of the Maryland

Rues of Procedure, for reconsideration of the decision

which was rendered by this Court in this case on Febru-

ary 12, 1997. In support of its Petition for Intervention

and Motion for Reconsideration, the Commonwealth

states as follows:

PETITION TO INTERVENE

1. On February 24, 1997, the Attorney General for

the Commonwealth (“the Virginia Attorney General”)

App. 59

received a letter from the law firm of Poppleton, Garrett

& Polett [sic], P.C., advising him of the decision which

was reached by this Court in connection with this case on

February 12, 1997 (“the Decision”). In the Decision, this

Court held that the method for service of process as set

forth in Va. Code § 8.01-329 is “constitutionally inade-

quate.” This Court has also refused to give full faith and

credit to a Virginia judgment which was obtained in

accordance with the procedures set forth in Va. Code

§ 8.01-329.

2. The Commonwealth was not made aware of this

Court's consideration of the constitutionality of Va. Code

§ 8.01-329 until the Virginia Attorney General received

the letter referenced above from Poppleton, Garrett &

Polott, P.C., counsel for the Respondents in this action.

3. Upon information and belief, the Respondents

intend to file a Motion for Reconsideration of the Deci-

sion in accordance with Rule 8-605 of the Maryland Rules

of Procedure. As an Applicant for Intervention, the Com-

monwealth also submits its own Motion for Reconsidera-

tion (see below).

4. The Commonwealth has a deep and abiding

interest in defending the constitutionality of its statutes

and in maintaining the enforceability of judgments which

are obtained within its courts. The Commonwealth also

seeks leave to intervene in this action in order to protect

the public interest of its citizens/creditors in being able

to obtain judgments against their debtors which are

enforceable in sister states. The ruling already has been

App. 60

reported in the press as likely to “wreak havoc” on credi-

tor practice in Virginia. See Virginia Lawyer’s Weekly, Vol.

XI, No. 39, p. 1 (March 3, 1997).

5. Pursuant to Rule 2-214 of the Maryland Rules of

Procedure, this Court permits the state of Maryland and

the United States to intervene in actions which challenge

the constitutionality of Maryland or federal statutes.!

6. Pursuant to Rule 3-405 of the Maryland Rules of

Procedure, the Maryland Attorney General is entitled to

notice of all actions filed within the courts of Maryland

which allege that any Maryland statute is unconstitu-

tional. Upon being advised of such a claim, the Maryland

Attorney General is afforded the opportunity to submit

his views in writing regarding the constitutionality of the

challenged provision or to intervene in the action in

accordance with Rule 2-214. Federal courts follow a simi-

lar procedure whenever the constitutionality of a state

statute is called into question within a federal court. See

28 U.S.C. § 2403(b). |

Furthermore, Maryland’s Rule of Procedure with

respect to intervention, Rule 2-214, was derived from

Federal Rule of Civil Procedure 24. FRCP 24 provides in

pertinent part:

1 This Rule is included within the portion of the Maryland

Rules of Procedure pertaining to the Circuit Courts of

Maryland. An identical provision is included in the Rules with

respect to Maryland’s District Courts. See Rule 3-214 of the

Rules of Procedure. There is no comparable provision relating

specifically to the Maryland Court of Appeals. Principles of

consistency and fairness counsel that the same principles apply

when seeking to intervene at the appellate level.

App. 61

When the constitutionality of any statute of a

State affecting the public interest in [sic] drawn

in question in any action in which the

State . . . is not a party, the court shall notify the

attorney general of the State as provided in Title

28, U.S.C. § 2403.

7. As stated previously, the Commonwealth was

only recently advised that the constitutionality of one of

its statutes has been called into question by this Mary-

land state court action. In the interest of fairness and

comity, the Commonwealth requests that it be afforded

the same opportunity to intervene in this action to defend

the constitutionality of Va. Code § 8.01-329 in accordance

with the principles articulated within Title 28, U.S.C.

§ 2403, FRCP 24, and Rule 2-214 of the Maryland Rules of

Procedure.

8. The parties will not be prejudiced by the Com-

monwealth’s intervention in this case. The Respondents

do not oppose the Commonwealth’s Petition to Intervene.

Further, unless or until this Court reverses the Decision,

the Virginia judgment at issue in this proceeding will not

be enforceable in Maryland. Therefore, the Petitioners

will not be prejudiced by the Commonwealth’s interven-

tion.

9. The Commonwealth also seeks leave to intervene

in this action in order to preserve its ability to obtain

appellate review of the Decision in the even that the

Court denies the Motions for Reconsideration of the

Respondents and the Commonwealth.

App. 62

MOTION FOR RECONSIDERATION

1. As discussed above, the Decision of this Court

regarding the constitutionality of the method of service

set forth in § 8.01-329 and the enforceability of judgments

obtained pursuant to § 8.01-329 in Maryland was reached

without consideration of the arguments which the Com-

monwealth can submit in defense of its statute.

2. The composition of this Court has changed since

the Decision was delivered in this case. The Decision was

rendered by a closely divided court close (4 to 3), and it is

conceivable that this change in composition may have a

bearing on the Court’s reconsideration of the issues pre-

sented within this case.

3. In the interest of comity, this Court should recon-

sider its prior Decision now that the Commonwealth has

been advised of the challenge to its statute and now that

the Commonwealth has expressed its desire to defend its

statute. See Rule 8-511 of the Maryland Rules of Pro-

cedure (recognizing this Court’s policy of considering the

views of interested persons/entities, who are not parties

to a particular proceeding, by way of amicus briefs).

4. With respect, the Commonwealth believes that

the Decision of the majority of this Court regarding the

constitutionality of the method of service provided by Va.

Code § 8.01-329 was erroneous. Virginia’s statute pro-

vides sufficient procedural safeguards to ensure that the

due process rights of non-resident litigants are protected

in that it is “reasonably calculated . . . to apprise inter-

ested parties of the pendency of the action and to afford

them an opportunity to present their applications.” Mul-

lane v. Central Hanover Tr. Co., 339 U.S. 306, 314 (1950).

App. 63

These procedural safeguards include a provision within

the Virginia Code which allows litigants to challenge

Virginia judgments when they claim not to have received

actual notice of a Virginia proceeding against them. See

Va. Code § 8.01-428.2 In addition, under Virginia’s pro-

cedure, the Secretary of Commonwealth is required to

certify that she has forwarded the relevant pleading to

the non-resident defendant’s last known address. In

effect, therefore, the certificate from the Secretary of the

? In the Decision, this Court reasoned that the protections

afforded by Va. Code § 8.01-428 do not save the defective means

of service of process set forth in § 8.01-329. This Court relied

upon the Supreme Court’s opinion in Armstrong v. Manzo, 380

U.S. 545 (1965), when reaching this conclusion. With respect, the

circumstances which led to the violation of due process

recognized by the Supreme Court in Armstrong, supra, are

clearly distinguishable from Virginia’s statutory procedure for

challenging default judgments.

In Armstrong, the Supreme Court concluded that a father’s

right to due process was violated when the [sic] he failed to

receive notice of a Texas proceeding terminating his parental

rights. Even though the child’s mother was aware of the father’s

address, she did not attempt to provide him with notice of the

termination proceeding. In a subsequent proceeding, the father

was able to obtain the reinstatement of his parental rights.

Nevertheless, the Supreme Court concluded that the second

proceeding was not sufficient to “cure” the previous violation of

his right to due process.

In contrast, pursuant to Va. Code § 8.01-329, plaintiffs are

required to provide notice to non-resident defendants by mail

(via the Secretary of the Commonwealth who certifies that she

has sent the notice to the defendant’s last known address). If for

some reason a non-resident defendant does not receive the

notice, he can challenge any judgment which has been entered

against him pursuant to the procedure set forth in Va. Code

§ 8.01-428.

App. 64

Commonwealth serves the same purpose as a certified

mail receipt. See State v. Barnes, 273 Md. 195, 209, 328 A.2d

737, 746 {“[t]he only logical purpose to be served by

directing that the notice by [sic] delivered by certified

mail is to provide corroboration for bald assertions of

having given such notice and a means of tracing and

establishing the date of receipt should a dispute concern-

ing delivery of notice arise”).

5. Furthermore, there is no authority to support this

Court’s conclusion that certified or registered mail is

required to afford due process when seeking to obtain in

personam jurisdiction over a litigant. This is particularly

true when a state, such as the Commonwealth, has a valid

interest in providing an inexpensive,? but nonetheless

efficient, mechanism for its citizens to obtain service of

process on non-resident persons/entities who chose to do

business or hold property within a state’s boundaries.

See, e.g., Matter of Park Nursing Center, Inc., 766 F.2d 261

(6th Cir.1985); In Re M & L Business Mach. Co., Inc., 190

B.R. 111 (D. Colo. 1995) (upholding service by mail in

bankruptcy cases).

6. Moreover, no evidence is presently before this

Court to support the conclusion that the United States

mail constitutes an unreliable method of advising persons

of the claims which have been asserted against them.

3 The Secretary of the Commonwealth processes

approximately 975 requests for service of process on non-

residents per week — over 50,000 per year. A requirement that

each of these requests be forwarded by registered or certified

mail to non-residents would substantially increase the

workload, staffing needs, and costs of the Secretary of the

Commonwealth.

App. 65

Indeed, the United States Supreme Court has concluded

otherwise. See Tulsa Professional Collection Services, Inc. v.

Pope, 485 U.S. 478, 489 (1988) (reflecting that the Supreme

Court has “repeatedly recognized that mail service is an

inexpensive and efficient mechanism that is reasonably

calculated to provide actual notice”).

7. Lastly, as Judges Chasanow, Rodowsky and

Raker correctly noted in their dissent, there is also no

evidence currently before this Court to support the con-

clusion that the Petitioners did not receive actual notice

of the Virginia action against them. If the Petitioners

actually received notice of the Virginia proceeding, then it

is clear that the Virginia court had personal jurisdiction

over them when rendering judgment, and this Court

should give full faith and credit to that judgment. See

Mullane, 339 U.S. at 318-320; Mennonite Board of Missions

v. Adams, 462 U.S. 791, 800 (1983) (recognizing that when

actual notice has been achieved, due process require-

ments have been met).

For all of these reasons, the Commonwealth believes

that the Court’s Decision regarding the constitutionality

of the procedural methods set forth in Va. Code § 8.01-329

was incorrect, and, therefore, should be reconsidered. The

Commonwealth is willing and desires to submit addi-

tional briefs and argument to the Court on all the issues

touched upon in this Motion.

WHEREFORE, the Commonwealth of Virginia, ex rel.

Secretary of the Commonwealth, respectfully requests

that she be granted leave to intervene in this action in

order to protect the integrity of Virginia's statutory mech-

anism of service of process and the public interest of the

App. 66

Commonwealth’s citizens/creditors. The Commonwealth

also respectfully requests that this Court reconsider its

earlier decision in this case, and such further briefing and

argument as may be appropriate to affirm the judgment

of the Court of Special Appeals.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

ex rel. SECRETARY OF THE

COMMONWEALTH

By /s/ Gregory E. Lucyk

Counsel

JAMES S. GILMORE, III

Attorney General

CATHERINE C. HAMMOND

Deputy Attorney General

GREGORY E. LUCYK

Senior Assistant Attorney General

A. ANN BERKEBILE

Assistant Attorney General

Office of Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-6976

/s/ Andrew R. Polott

Andrew R. Polott, Local

Counsel for the Commonwealth

of Virginia

Poppleton, Garrett & Polott

6430 Rockledge Drive

Suite 500

Bethesda, Maryland 20817

App. 67

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing was mailed, first class, postage prepaid, this 13

day of March, 1997 to Benjamin Lipsitz, Attorney for

Petitioners.

/s/ Andrew R. Polott

App. 68

IN THE COURT OF APPEALS OF MARYLAND

GERALD MISERANDINO and

KAREN MISERANDINO,

Petitioners,

NO. 93

RESORT PROPERTIES, INC., 5¢Ptember Term 1995

Respondent,

and

COMMONWEALTH OF

VIRGINIA, ex rel. SECRETARY

OF THE COMMONWEALTH,

Intervenor-Respondent.

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN THAT the Intervenor-

Respondent, the Commonwealth of Virginia, ex rel. Secre-

tary of the Commonwealth (“the Commonwealth”),

hereby appeals to the United States Supreme Court from

the Order entered in the above-referenced action on April

8, 1997, by the Court of Appeals of Maryland. The Order

from which this appeal is taken refuses to grant the

Commonwealth’s motion to reconsider, fails to give full

faith and credit to a Virginia judgment obtained against

non-resident defendants in the manner specified by Va.

Code § 8.01-329; and calls into question the constitu-

tionality of a Virginia statute.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA,

ex rel. SECRETARY OF THE

COMMONWEALTH

By: /s/ A. Ann Berkebile

Counsel

7 App. 69

James S. Gilmore, III

Attorney General of Virginia

Gregory E. Lucyk

Senior Assistant Attorney General

A. Ann Berkebile

Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-6976

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing

Notice of Appeal was sent by first class, postage prepaid

mail this 21st day of April, 1997, to Benjamin Lipsitz,

Esquire, 100 Church Lane, Baltimore, Maryland 21208,

and Andrew R. Polott, Esquire, Poppleton, Garrett &

Polott, 6430 Rockledge Drive, Suite 500, Bethesda, Mary-

land 20817.

/s/ A. Ann Berkebile

App. 70

AMENDMENT V —

RIGHTS OF ACCUSED IN CRIMINAL PROCEEDINGS

No person shall be held to answer for a capital, of

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual

service in time of war or public danger; nor shall any

person be subject for the same offense to be twice put in

jeopardy of life or limb, nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

App. 71

AMENDMENT XIV

SECTION 1.

CITIZENSHIP RIGHTS NOT TO

BE ABRIDGED BY STATES

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the laws.

SECTION 2.

APPORTIONMENT OF REPRESENTATIVES

IN CONGRESS

Representatives shall be apportioned among the sev-

eral states according to their respective numbers, count-

ing the whole number of persons in each state, excluding

Indians not taxed. But when the right to vote at any

election for the choice of electors for President and Vice

President of the United States, representatives in Con-

gress, the executive and judicial officers of a state, or the

members of the legislature thereof, is denied to any of the

male inhabitants of such state, being twenty-one years of

age, and citizens of the United States, or in any way

abridged, except for participation in rebellion, or other

crime, the basis of representation therein shall be reduced

in the proportion which the number of such male citizens

App. 72

shall bear to the whole number of male citizens twenty-

one years of age in such state.

SECTION 3.

PERSONS DISQUALIFIED FROM HOLDING OFFICE

No person shall be a senator or representative in

Congress, or elector of President and Vice President, or

hold any office, civil or military, under the United States,

or under any state, who, having previously taken an oath,

as a member of Congress, or as an officer of the United

States, or as a member of any state legislature, or as an

executive or judicial officer of any state, to support the

Constitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a

vote of two thirds of each house, remove such disability.

SECTION 4.

WHAT PUBLIC DEBTS ARE VALID

The validity of the public debt of the United States,

authorized by law, including debts incurred for payment

of pensions and bounties for services in suppressing

insurrection or rebellion, shall not be questioned. But

neither the United States nor any state shall assume or

pay any debt or obligation incurred in aid of insurrection

or rebellion against the United States, or any claim for the

loss or emancipation of any slave; but all such debts,

obligations and claims shall be held illegal and void.

App. 73

SECTION 5.

POWER TO ENFORCE THIS ARTICLE

The Congress shall have power to enforce, by appro-

priate legislation, the provisions of this article.!

1 Proposed by Congress on June 13, 1866, and declared

ratified on July 28, 1868.

App. 74

§ 8.01-328.1 When personal jurisdiction over per-

son may be exercised. — A. A court may exercise personal

jurisdiction over a person, who acts directly or by an

agent, as to a cause of action arising from the person’s:

1. Transacting any business in this Commonwealth;

2. Contracting to supply services or things in this

Commonwealth;

3. Causing tortious injury by an act or omission in

this Commonwealth;

4. Causing tortious injury in this Commonwealth by

an act or omission outside this Commonwealth if he

regularly does or solicits business, or engages in any

other persistent course of conduct, or derives substantial

revenue from goods used or consumed or services ren-

dered, in this Commonwealth;

5. Causing injury in this Commonwealth to any per-

son by breach of warranty expressly or impliedly made in

the sale of goods outside this Commonwealth when he

might reasonably have expected such person to use, con-

sume, or be affected by the goods in this Commonwealth,

provided that he also regularly does or solicits business,

or engages in any other persistent course of conduct, or

derives substantial revenue from goods used or con-

sumed or services rendered in this Commonwealth;

6. Having an interest in, using, or possessing real

property in this Commonwealth;

7. Contracting to insure any person, property, or

risk located within this Commonwealth at the time of

contracting;

App. 75

8. Having (i) executed an agreement in this Com-

monwealth which obligates the person to pay spousal

support or child support to a domiciliary of this Com-

monwealth, or to a person who has satisfied the resi-

dency requirements in suits for annulments or divorce for

members of the armed forces pursuant to § 20-97 pro-

vided proof of service of process on a nonresident party

is made by a law-enforcement officer or other person

authorized to serve process in the jurisdiction where the

nonresident party is located, (ii) been ordered to pay

spousal support or child support pursuant to an order

entered by any court of competent jurisdiction in this

Commonwealth having in personam jurisdiction over

such person, or (iii) shown by personal conduct in this

Commonwealth, as alleged by affadavit, that the person

conceived or fathered a child in this Commonwealth; or

9. Having maintained within this Commonwealth a

matrimonial domicile at the time of separation of the

parties upon which grounds for divorce or separate main-

tenance is based, or at the time a cause of action arose for

divorce or separate maintenance or at the time of com-

mencement of such suit, if the other party to the matrimo-

nial relationship resides herein.

Jurisdiction in subdivision 9 of this subsection is

valid only upon proof of service of process pursuant to

§ 8.01-296 on the nonresident party by a person autho-

rized under the provisions of § 8.01-320. Jurisdiction

under subdivision 8(iii) of this subsection is valid only

upon proof of personal service on a nonresident pursuant

to § 8.01-320.

App. 76

B. When jurisdiction over a person is based solely

upon this section, only a cause of action arising from acts

enumerated in this section may be asserted against him;

however, nothing contained in this chapter shall limit,

restrict or otherwise affect the jurisdiction of any court of

this Commonwealth over foreign corporations which are

subject to service of process pursuant to the provisions of

any other statute. (Code 1950, § 8-81.2; 1964, c. 331; 1977,

c. 617; 1978, c. 132; 1981, c. 6; 1982, c. 313; 1983, c. 428;

1984, c. 609; 1986, c. 275; 1987, c. 594; 1988, cc. 866, 878;

1992, c. 571.)

App. 77

§ 8.01-329. Service of process or notice; service on

Secretary of Commonwealth. — A. When the exercise of

personal jurisdiction is authorized by this chapter, service

of process or notice may be made in the same manner as

is provided for in Chapter 8 (§ 8.01-285 et seq.) of this

title in any other case in which personal jurisdiction is

exercised over such a party, or process or notice may be

served on any agent of such person in the county or city

in this Commonwealth in which that agent resides or on

the Secretary of the Commonwealth of Virginia, hereinaf-

ter referred to in this section as the “Secretary,” who, for

this purpose, shall be deemed to be the statutory agent of

such person.

B. When service is to be made on the Secretary, the

party or his agent or attorney seeking service shall file an

affidavit with the court, stating either (i) that the person

to be served is a nonresident or (ii) that, after exercising

due diligence, the party seeking service has been unable

to locate the person to be served. In either case, such

affidavit shall set’ forth the last known address of the

person to be served.

When the person to be served is a resident, the

signature of an attorney, party or agent of the person

seeking service on such affidavit shall constitute a certifi-

cate by him that process has been delivered to the sheriff

or to a disinterested person as permitted by § 8.01-293 for

execution and, if the sheriff or disinterested person was

unable to execute such service, that the person seeking

service has made a bona fide attempt to determine the

actual place of abode or location of the person to be

served.

App. 78

C. Service of such process or notice on the Secretary

shall be made by the plaintiff’s, his agent’s or the sheriff's

leaving a copy of the process or notice, together with a

copy of the affidavit called for in subsection B hereof and

the fee prescribed in § 14.1-103 in the office of the Secre-

tary in the City of Richmond, Virginia. Service of process

or notice on the Secretary may be made by mail if such

service otherwise meets the requirements of this section.

Such service shall be sufficient upon the person to be

served, provided that notice of such service, a copy of the

process or notice, and a copy of the affidavit are forth-

with mailed, by the Secretary to the person or persons to

be served at the last known post-office address of such

person, and a certificate of compliance herewith by the

Secretary or someone designated by him for that purpose

and having knowledge of such compliance, shall be forth-

with filed with the papers in the action. Service of process

or notice on the Secretary shall be effective on the date

the certificate of compliance is filed with the court in

which the action is pending.

D. Service of process in actions brought on a war-

rant or motion for judgment pursuant to § 16.1-79 or

§ 16.1-81 shall be void and of no effect when such service

of process is received by the Secretary within ten days of

any return day set by the warrant. In such cases, the

Secretary shall return the process or notice, the copy of

the affidavit, and the prescribed fee to the plaintiff or his

agent. A copy of the notice of the rejection shall be sent to

the clerk of the court in which the action was filed.

E. The Secretary shall maintain a record of each

notice of service sent to a person for a period of two

years. The record maintained by the Secretary shall

App. 79

include the name of the plaintiff or the person seeking

service, the name of the person to be served, the date

service was received by the Secretary, the date notice of

service was forwarded to the person to be served, and the

date the certificate of compliance was sent by the Secre-

tary to the appropriate court. The Secretary shall not be

required to maintain any other records pursuant to this

section. (Code 1950, § 8-813; 1977, c. 617; 1979, c. 31; 1986,

c. 388; 1987, cc. 449, 450, 459; 1990, c. 741.)

App. 80

§ 8.01-428. Setting aside default judgments; clerical

mistakes; independent actions to relieve party from judg-

ment or proceedings; grounds and time limitations. - A.

Default Judgments and decrees pro confesso; summary procedure. —

Upon motion of the plaintiff or judgment debtor and after

reasonable notice to the opposite party, his attorney of record

or other agent, the court may set aside a judgment by default

or a decree pro confesso upon the following grounds: (i)

fraud on the court, (ii) a void judgment, (iii) on proof of an

accord and satisfaction. Such motion on the ground of fraud

on the court shall be made within two years from the date of

the judgment or decree.

B. Clerical mistakes. - Clerical mistakes in all judg-

ments or other parts of the record and errors therein

arising from oversight or from an inadvertent omission

may be corrected by the court at any time on its own

initiative or upon the motion of any party and after such

notice, as the court may order. During the pendency of an

appeal, such mistakes may be corrected before the appeal

is docketed in the appel

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