Appeal, No. 272, Oct. T., 1956, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1953, No. 10802, in case of Isabel Schmittinger et al. v. Edward Grogan et al. Order reversed.
Henry Temin, with him Max E. Cohen, in propria persona, for appellant.
Irwin S. Lasky, with him Henry W. Balka, for appellees.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 401]
This case involves a simple question complicated only by unnecessary pleadings and extraneous considerations in the court below. The question is whether the court should permit counsel for defendant in a trespass action growing out of an automobile accident, after he entered his appearance at the direction of defendant's insurer, to withdraw as counsel when he is unable to contact or locate the defendant.
The counsel's petition for permission of the trial court to withdraw sets forth the following facts: After the trespass action was brought against Edward Grogan, Attorney Cohen was directed to enter his appearance by the insurance carrier of Mrs. Grogan, the owner of the automobile driven by Grogan and involved in the accident. The petitioner thereupon entered his appearance, severed the cause of action of wife-plaintiff from that of wife-owner, and joined the latter as additional defendant. When the case was at issue it was placed upon the consolidated jury trial list and appeared there during the November Term, 1954. Petitioner wrote two letters to defendant, Edward Grogan, advising him of the listing of the case for trial and requesting his appearance at petitioner's office in order to prepare the case. One letter was sent to Grogan's Philadelphia domicile at the time of the accident, and an identical letter to his family domicile in Wilkes-Barre. Although neither of these letters was returned, the defendant did not contact counsel. Thereafter petitioner, as well as the insurance carrier, made an extensive effort to ascertain the whereabouts of the defendant, without success.
[ 182 Pa. Super. Page 402]
When the case was relisted for trial during the month of February counsel again attempted to contact his client by sending two "registered mail, return-receipt-requested, letters" to the Philadelphia and Wilkes-Barre addresses, and these letters were returned undelivered. The case was then continued due to defendant's absence. The case having again been listed for trial during the second week in May 1955, counsel on April 26, presented a petition to the court asking "leave of court to withdraw his appearance for defendant."
The petition further alleges that the insurance policy covering the automobile which the defendant was driving contains a clause that the insured shall cooperate with the insurance company and shall attend trials and assist in "securing and giving evidence, obtaining the evidence of witnesses and in the conduct of suits."
It appears from the presentation of the petition, and from a consideration of it as a whole, that counsel was directed to withdraw by the insurance carrier, or at least that the company approved the presentation of his petition. Although we think counsel should have specifically alleged this, we consider it proper for us to assume it from other facts alleged.
Upon the presentation of this petition a rule was entered on the defendant to show cause why the petitioner should not be permitted to withdraw his appearance as counsel for defendant. Appellant attempted to give notice of the ...