Appeal, No. 490, Jan. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, March T., 1959, No. 385, in case of John H. Maiers v. Herman G. Meyr. Order reversed.
Henry F. Huhn, with him Howard R. Detweiler, for appellant.
Elias Magil, with him Folz, Bard, Kamsler, Goodis & Greenfield, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal challenges an order of the Court of Common Pleas No. 2 of Philadelphia County which discharged a rule to set aside service of a complaint in a trespass action.
This litigation arises out of an automobile accident which occurred on August 2, 1957 on City Line Avenue near 77th Street.*fn1 John H. Maiers (Maiers) was operating his automobile in a westerly direction on City Line Avenue and had come to a stop at 77th Street, intending to make a left-hand to go south on said
street and was waiting for the traffic light to change. Herman G. Meyr (Meyr) was operating a motor truck in a westerly direction at some distance behind Maiers. Between the Maiers automobile and the Meyr truck was an automobile operated by Peter J. Hughes (Hughes), which automobile had come to a stop behind the Maiers' automobile. Meyr's truck crashed into the rear of the Hughes automobile which, in turn, was thrown into the rear of Maiers' automobile.*fn2
A complaint in trespass was filed on March 10, 1959 in the Court of Common Pleas No. 2 of Philadelphia County by Mariers against Meyr but service of the complaint was not effected because Meyr could not be found in Philadelphia County. On June 24, 1960 the complaint was reinstated and service was then made upon Meyr by deputizing the sheriff of Montgomery County to make such service. Meyr on the date of the accident was living in Conshohocken, Montgomery County, having moved there the day prior to the accident. On July 20, 1960, Meyr obtained a rule upon Maiers to show cause why service of the complaint should not be set aside upon the ground that the accident occurred in Montgomery, not Philadelphia County, and Therefore, the deputization of service by the sheriff of Montgomery County was invalid. After answer filed and the taking of depositions, the court below discharged the rule to set aside the service of the complaint and, from that order, this appeal was taken.
Rule 1006 Pa. R.C.P. provides: "(a) Except as otherwise provided by subdivision (b) of this rule, an action against an individual may be brought in and only in a county in which he may be served." Rule 1043 Pa. R.C.P. provides: "When an ...