Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1964, No. 1547, in case of Regis Schaffer v. George N. Batyko.
Michael Hahalyak, for appellant.
Carl W. Brueck, Jr., for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J. Jacobs, J., concurs in the result.
[ 227 Pa. Super. Page 63]
This case comes to our court on appeal from the lower court's granting of defendant's preliminary objections in the nature of an attack on the court's jurisdiction over the person of defendant for want of service of either a writ of summons or complaint in trespass and for the running of the statute of limitations against plaintiff's claim.
An account of the docket entries is necessary for a proper consideration of this case. On February 7, 1964, plaintiff filed a praecipe for writ of summons in trespass as a result of injuries suffered by him as an invitee on defendant's premises. On January 14, 1966, the writ was reissued and plaintiff's attorney entered into settlement discussions with defendant's insurance carrier and furnished the carrier with full details of the accident and had plaintiff examined by the insurance carrier's doctor. On March 29, 1967, a complaint in trespass was filed. Neither the writ nor the complaint was served by the Sheriff on defendant. On May 18, 1970, the insurance carrier, purportedly on behalf of defendant, filed its preliminary objections relating
[ 227 Pa. Super. Page 64]
to jurisdiction and to the statute of limitations, and also carrying an endorsement requiring plaintiff to plead or to suffer a default judgment, in accordance with Pa. Rules of Civil Procedure 1066 and 1361. Plaintiff filed an answer on June 2, 1970, in which he alleged that an agreement existed between plaintiff and defendant, who were brothers-in-law, to waive sheriff's service of the complaint and that defendant had agreed to pick up the complaint at the office of plaintiff's attorney. The answer further alleged that defendant's insurance carrier "was fully aware of the fact that suit had been filed by praecipe and pursuant thereto received the cooperation of counsel for the plaintiff in having plaintiff physically examined by the carrier's medical expert. In addition thereto, plaintiff's counsel had authorized the release of the hospital records of the plaintiff to the medical expert for the carrier." The matter was argued before the lower court on September 23, 1971, however, the record does not disclose the nature of the argument nor whether any evidence of any kind either by deposition or by testimony was presented by the parties or considered by the court. On November 4, 1971 prior to the lower court's disposition of the preliminary objections, plaintiff filed an affidavit of acceptance of service taken under oath by defendant, George Batyko. The affidavit reads as follows: "Before me, the undersigned authority, personally appeared George Batyko, who, being duly sworn according to law, deposes and says that he did agree with counsel for plaintiff not to have the complaint in the above case served on him by the Sheriff's office, but that instead he would pick up the Complaint at the office of the Plaintiff and that this would constitute good and valid service and that said agreement was made prior to the expiration of the limitation period, and writ. George Batyko agreed that proper service was made by reason of the said
[ 227 Pa. Super. Page 65]
agreement and that there was a waiver of the formalities of service and does hereby agree that under said agreement due service was made waiving any objection to improper service."
On November 10, 1972, the lower court sustained the preliminary objections and dismissed plaintiff's case. The opinion of the lower court discloses that it only considered the following docket entries; praecipe for writ of summons, reissuance of writ, complaint, and the preliminary objections filed by the insurance carrier. It ignores plaintiff's answer to the preliminary objections and affidavit of acceptance of service, both of which were filed before the court's opinion was handed down. (See Pa. R.C.P. 1028(c)). The fact that the court opinion came down approximately two years after the preliminary objections were filed may be some explanation for the court's failure to consider the later pleading and exhibit.
A preliminary objection should be granted only in those cases so free from doubt that a hearing on the matter would be useless. Where an inquiry into essential facts appears necessary, a party should not be deprived of the opportunity of presenting the disputed facts to a fact finder. This is similar to the principle we observe with respect to motions for summary judgment. ...