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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 963

## Text

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
4

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?

li

PARTIES TO THE PROCEEDING

The parties to the proceeding in the Marylard Court of
Appeals were:

a.

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

iv

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 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

Vv

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

vi

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

10

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

11

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.

12

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.)

13

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).

14

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

il

15

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).

16

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

17

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

18

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.

© See, e.g., Minn. Stat. § 170.55 (1996); 20 U.S.C. § 1095a (a)
(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).

19

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

20

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

21

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.) -

22

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

23

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.

ee

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

© The break down of the aggregate figures is as follows:
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

V.
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.

I.

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:

no

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

a

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... . ” —

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

A.
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

EE

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
v.

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

V.

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 arti

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1002%3A1. Public record. Not legal advice.