Cass. civil Section II, 01-31-2008, n. 2304
ITALIAN REPUBLIC
IN THE NAME OF THE ITALIAN PEOPLE
THE SUPREME COURT OF CASSATION SECOND CIVIL SECTION
has pronounced the following:
sentence
on the appeal brought by:
electively domiciled in ROME at the office of the lawyer who defends her, correct delegation in
documents;
– appellant –
against
MUNICIPALITY OF NAPLES, in the person of the Mayor pro tempore; SERIT today GESTLINE SPA, in the
person of the legal representative pro tempore;
summoned
against sentence no. 12381/03 of the Justice of the Peace of NAPLES, filed on 02/25/03;
having heard the report of the case carried out in the public hearing of 09/25/07 by Councilor D
having heard the PM in the person of the Deputy Attorney General Doche concluded to accept
the appeal.
Conduct of the process – Reasons for the decision
With an appeal filed on 10.12.02 PC proposed opposition to the payment notice no.
(OMISSIS) issued by the SE.RI.T of Naples, following three reports of infringement of the CdS, ascertained
by the Fire Brigade. of Naples ((OMISSIS), (OMISSIS), (OMISSIS)), claiming not to have received the
related complaints nor the notification of the related minutes.
The taxing municipality, once established, filed three acknowledgments of receipt of notification by post
, the first bearing the signature of receipt “A.” and the other two the receiving signature “AA goalkeeper”.
The Justice of the Peace of Naples with sentence no. 12381 – 03 rejected the opposition and compensated the
litigation costs, noting that the illegitimacy of the related
sanction claim did not emerge from the documents, but rather its legitimacy, on the basis of the documentation produced
by the Administration.
The aforementioned P. appeals for the decision to be quashed, explaining only one reason: violation
of Law no. 689 of 1981, art. 14, uc, and L. n. 890 of 1982, art. 7, paragraph 3, and art. 139 cpc, paragraph
3, deducing that the notification, made in the hands of the concierge is affected by nullity “where the
prior notification is not certified, a search for other persons authorized to deliver in the absence of the
recipient is necessary”.
The appeal is well founded. True, notification to the doorman is governed by art. 139 cpc, for what
concerns the notification to be carried out by the recipient, a natural person, and by Law no. 890 of
1982, art. 7, regarding notification by post.
The art. 160 cpc, provides that the notification is void if the provisions regarding the person to whom the copy must be delivered are not observed
or if there is absolute uncertainty as to the person to whom it is
made or the date.
The preferential succession of the people to whom, by virtue of art. 139 cpc, paragraphs 2 and 3, a copy of the document to be notified can be delivered in the absence of the addressee, it is mandatory and from this principle derives the nullity of the notification if the reason why the notification is not specifically indicated in the notification report the document was not delivered to the recipient by his own hands or to any of the persons who in the peremptory order precede the one who is indicated as consignee in the notification report.
The notification made to the doorman of the recipient’s building is void if the bailiff merely
acknowledges the precarious absence of the recipient without certifying the occurrence.
search for additional persons authorized to receive the document unless the words used by the person in charge of
notification suggest that no other person
authorized to receive the document in place of the recipient has been found at the place of notification.
This principle repeatedly reiterated by the jurisprudence of legitimacy has been confirmed by the
United Sections of the Supreme Court also for notification by postal service (Cass. Sez.
Un. n, 1097/2000; Sez. Un. 6214/2005).
Well, in the case in question, the lack of certification, in the notification report, of the necessary searches
for other persons authorized to receive the document, in the absence of the recipient, is evident from the examination of the
related acknowledgments of receipt, as two of them bear only the annotation “AA, doorman” and
the other only “A.”.
The absence of the defendant exempts the obligation to decide on costs.
PQM
accepts the appeal; no costs. Decided in Rome on 25 September 2007. Filed with the Registry on
31 January 2008