Appeals, Nos. 29, 30 and 31, March T., 1951, from orders of Court of Common Pleas of Allegency County, July T., 1949, Nos. 1966, 1964 and 1965, respectively, in cases of Avanell Vaughan et vir v. Darl D. Womeldorf, trading as W. I. Womeldorf & Sons et al., Iva Gantz et vir. v. Same and Florence Kelly et al. v. Same. Orders affirmed.
Joseph F. Weis, with him Sheriff, Lindsay, Weis & McGinnis, for appellant.
H. A. Robinson, with him Dickie, Robinson & McCamey, for appellees.
Before Drew, C.j., Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
May a participant in an automobile accident in one county institute a suit in trespass in another county concerning the same accident, and, having secured service on the defendant in that county, successfully resist an application to join such participant as an additional defendant in that suit and also in suits by passengers in his automobile? The learned court below held that Kelly, the additional defendant, could be so joined and be legally served in that county. These appeals followed.
Donald W. Kelly (appellant) was involved in an automobile accident in Elk County. He was driving an automobile in which, as passengers, were his wife Florence, his daughter Cassandra, Iva Gantz and Avanell Vaughan. All were residents of Warren County. The automobile collided with a tractor trailer operated by Edward Swanson and owned by Darl D. Womeldorf (appellee), doing business as W. I. Womeldorf & Sons, residents of Allegheny County.
Three suits were instituted by Morris Greenberg, Esq., a practicing attorney of the Allegheny County Bar, against Womeldorf in Allegheny County. Two of the suits were by the women passengers in Kelly's car, and their husbands, and the third by Kelly, his wife, and by Kelly as guardian for his minor daughter.
In each of the three suits the defendant Womeldorf (appellee) petitioned the court for leave to join Kelly (appellant) as an additional defendant and to serve him in Allegheny County by service upon Kelly's attorney, Mr. Greenberg. The petitions were granted.
At common law an action for tort was transitory but it was necessary to serve the defendant personally: Gossard v. Gossard et al., 319 Pa. 129, 178 A. 837. This rule still prevails except where changed by civil rules of procedure or statute: Heaney v. Mauch Chunk Borough, 322 Pa. 487, 490, ...