James Lewis Griffith, Philadelphia, Henry F. Huhn, Cornwells Heights, for appellants.
Pratt, Clark, Gathright & Price, Ward F. Clark, Doylestown, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 243 Pa. Super. Page 48]
This is an appeal from an order opening a judgment entered upon appellees' failure to file a complaint within twenty days after service of a rule to file a complaint or suffer judgment of non pros.*fn1
On July 17, 1967, the minor appellee fell from the steps of a tree house in a park allegedly controlled by appellants, and sustained serious injuries. The alleged cause of the fall was a defective stair. Sometime after the accident, appellee parents retained counsel who in May of 1969, two months before the statute of limitations would run, referred the case to Daniel DiGiacomo, a Philadelphia attorney. DiGiacomo entered into negotiations with an adjuster from appellants' insurance company. The adjuster allegedly told DiGiacomo that he would prefer to settle the case rather than go to trial, and asked DiGiacomo to send him the medical bills.
Because the accident had occurred in Bucks County and he was unfamiliar with local court rules and practices, DiGiacomo asked Edward Casey, a Bucks County
[ 243 Pa. Super. Page 49]
attorney, to serve as local counsel. They agreed that DiGiacomo would conduct settlement negotiations, prepare all pleadings, and try the case. Casey was simply to file the papers, introduce DiGiacomo to the court, and advise him of local court procedures. Casey never met appellees.
On July 15, 1969, two days before the statute of limitations ran, Casey filed a summons in trespass, which was served on appellants seven days later. After the filing of the summons, DiGiacomo had one or two more telephone conversations with the adjuster, but never sent him the medical reports. DiGiacomo said in his deposition that he was having difficulty obtaining the reports, but he also said that he stopped trying in August or September, 1969.
On September 23, 1970, appellants' attorney sent a letter to the Bucks County Prothonotary enclosing his entry of appearance for appellants and a rule upon appellees to file a complaint within 20 days or suffer a judgment of non pros. A copy of the letter was sent to Casey, the only attorney of record for appellees. The prothonotary filed the entry of appearance and rule on September 28, 1970. Forty-six days later, on November 13, 1970, no complaint having been filed, a judgment of non pros was entered against appellees.*fn2 The affidavit of service on Casey was filed the same day.
Although Casey had a copy of the September 23 letter in his file, he said in his deposition that he did not remember whether he called DiGiacomo after receiving it or whether he just assumed that DiGiacomo also ...