Appeal from order of Court of Common Pleas of Chester County, Feb. T., 1970, No. 76, in case of Edward Retzbach v. Berman Leasing Company and Charles V. Zubritsky.
Robert J. Shenkin, with him MacElree, Platt & Harvey, for appellants.
Rodger L. Mutzel, with him Kassab, Cherry, Curran & Archbold, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Concurring Opinion by Hoffman, J. Spaulding, J., joins in this concurring opinion. Dissenting Opinion by Packel, J. Jacobs and Cercone, JJ., join in this dissent.
[ 222 Pa. Super. Page 524]
Concurring Opinion by Hoffman, J.:
Appellants, Charles Zubritsky and Berman Leasing Company, contend that the Court of Common Pleas of Chester County erred in refusing to open a default judgment taken against them in a trespass action filed by the appellee, Edward Retzbach. This action in trespass arose out of a collision between the appellee's automobile and a tractor-trailer owned by appellant Berman and driven by appellant Zubritsky. The collision took place on February 20, 1968. Appellant Berman's insurance carrier entered into negotiations with the appellee's attorney for the purpose of settling the claim. The exact date of when these negotiations began is in dispute, but the attempt at settlement reached an impasse at the end of July, 1970. During the course of these settlement talks, the appellee instituted suit against the appellants by filing a Praecipe for Writ of Summons in Trespass on February 13, 1970. Appellant Zubritsky was served with a copy of the summons on February 19, 1970, but the Sheriff was unable to locate and serve appellant Berman. The Secretary of the Commonwealth, however, was served on February 20, 1970.
The appellee filed a complaint in trespass on October 26, 1970. Both appellants and the Secretary of the
[ 222 Pa. Super. Page 525]
Commonwealth were served with a copy of the complaint in late October or early November. When Zubritsky received the complaint, he contacted the appellee's attorney both by telephone and by mail on November 3, 1970. Zubritsky informed appellee's counsel that he was not represented by an attorney and that he had been hospitalized for a period of two weeks. Appellee's counsel advised Zubritsky to forward everything to Berman. ...