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ZALEVSKY v. CASILLO (ET AL. (04/19/66)

decided: April 19, 1966.

ZALEVSKY
v.
CASILLO (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 4565, in case of Marvin M. Zalevsky, a minor, by his guardian, Charles Zalevsky, and Charles Zalevsky and Esther Zalevsky, parents in their own right v. Dr. A. V. Casillo and Dr. Harry Fisher.

COUNSEL

Joseph F. Weis, Jr., with him Daniel J. Weis, and Weis & Weis, for appellant.

Wilbur McCoy Otto, with him Sanford M. Chilcote, and Dickie, McCamey & Chilcote, for appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Dissenting Opinion by Mr. Justice Roberts.

Author: Cohen

[ 421 Pa. Page 295]

A trespass action was instituted by minor plaintiff and his parents against defendant physician, the present appellee, based on alleged negligence and malpractice. Thereafter appellee filed a complaint to join a second physician, appellant herein, as additional defendant. Appellant appeals from an order dismissing his preliminary objections to the service. Appellant had removed to Florida, and service was attempted pursuant to the Non-Resident Engaging in Business Law*fn1 and Pennsylvania Rules of Civil Procedure

[ 421 Pa. Page 2962077]

(a)(2)*fn2 and 2079(b),*fn3 at appellant's alleged "place of business." At the time of the accrual of the cause of action, appellant was a resident of Pennsylvania, actively engaged in the practice of medicine in partnership with two other physicians, with offices in Pittsburgh. Before suit was started on December 29, 1961, appellant had entered into a formal dissolution of partnership agreement, whereby he was not to receive any income derived from the partnership business after July 31, 1961, except from accounts accruing prior to that date, nor was he to be chargeable with any partnership expense after July 31, 1961. Although the agreement was silent on these matters, appellant's name remained on the door of the old partnership offices and although appellant's home telephone listing was discontinued a listing was maintained showing his office number and address as those of the old partnership.

Appellant contends that he was not engaged in business in Pennsylvania at the time of the attempted service. He relies for his first argument upon the comments in Goodrich-Amram, § 2077(a)-21 and Anderson, Pennsylvania Civil Practice, § 2077.27. These authorities conclude that under the business defendant statutes,

[ 421 Pa. Page 297]

    service is proper only if defendant is a nonresident both when the cause of action arises and when service is made. Both authorities rely upon cases from jurisdictions other than Pennsylvania, construing various nonresident motorist statutes. The distinction is obvious. Nonresident motorist statutes necessarily require that the individual be a nonresident at the time he is operating his vehicle and is involved in an accident. In the instant matter, service on appellant rests upon the Act of 1856 and the Act of 1858, supra, n.1. While the earlier act provided that service might be made upon a nonresident businessman who was "not . . . in the county at the time of the issuing of the writ or process," the latter act imposes no such qualification upon the effectuation of service and, in effect, repeals that requirement of the earlier act. Goodrich-Amram, § 2077(a)-21, n.4. The Act of 1858 requires only that at the time of service of the writ or process, the defendant must be a nonresident of Pennsylvania. There is not within the plain meaning of either statute a connection between the time of the accrual of the cause of action and the alleged tortfeasor's non-residency. Unless both Goodrich-Amram and Anderson intended to state that service cannot be made upon an individual who after the commission of the tortious act, and before service of process, not only removes from the state but also discontinues his business in Pennsylvania, we must conclude that both authorities are mistaken. Indeed, our reading of the service statutes and procedural rules reveals that if a Pennsylvania resident engaged in business in this state commits a tort, and thereafter, but prior to being served with process establishes his residence in another jurisdiction and at the same time terminates his business in Pennsylvania, there is no way, aside from foreign attachment, that he may be served with process. And if the General Assembly or Procedural Rules Committee believes otherwise, then

[ 421 Pa. Page 298]

    either body may remedy the matter within its constitutional limits. At any rate, we conclude that under Rules 2077(a)(2) and 2079(b), a nonresident engaged in business in this Commonwealth may be duly served with process at his place of business, even though he was a resident of Pennsylvania when the cause of action arose. We believe that ...


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