No. 496 April Term 1976, Appeal from the Order of January 29, 1976 of the Court of Common Pleas of Beaver County, Pa., Civil Action - Law at No. 889 of 1974.
Bruce E. Woodske, and Oran W. Panner, Beaver, for appellants.
Albert S. Fein, Philadelphia, with him Harry E. Knafelc, Ambridge, for appellee.
Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 548]
This is an appeal from an order opening an order by which the action had been finally dismissed, and permitting the complaint to be reinstated.
On June 26, 1973, appellee's husband, Gabriel C. Gasbarini, died after an operation performed at appellant Medical Center while under the care of the individual appellants. Desiring to investigate the cause of the death, and if feasible to institute a medical malpractice action, appellee and her son sought to retain a lawyer. After four lawyers had declined the case, appellee heard that a lawyer from Philadelphia, Franklin D. Rubin, happened to be in Beaver County. She spoke to him, and he accepted the case.
[ 253 Pa. Super. Page 549]
On September 26, 1973, Rubin filed a summons in trespass. Appellant Medical Center filed a rule to file a complaint, and sent the rule by certified mail, return receipt requested, to Rubin's address, as listed on the summons. The rule was returned "unclaimed." On January 14, 1974, appellant's lawyer wrote appellee informing her that she risked a non pros, that she should immediately ask her lawyer to prepare a complaint, and that if she had no lawyer, she should advise appellant. Another rule to file complaint was sent to Rubin, this time by ordinary mail; there was no response. On September 20, 1974, judgment of non pros was entered.
Meanwhile, in June of 1974, a second summons was filed, and on October 15, 1974, after a rule to file complaint issued (it is not clear if or how this rule reached Rubin), a complaint was filed. In November of 1974, all appellants filed preliminary objections alleging that the complaint, which had been brought in the name of the decedent's estate, was improper both because an estate cannot be a proper party plaintiff, and because, contrary to the allegation in the complaint, appellee as decedent's wife had not been appointed administratrix of the estate (although proceedings to appoint her had begun). Because of these defects, appellants argued, the statute of limitations had run on the action. Certified notices of the argument were sent to Rubin's address but were returned unclaimed.
On November 27, 1974, Rubin was suspended from legal practice by the Supreme Court. In a later deposition, appellee testified that she and her son had for some time been suspicious that Rubin was not doing a good job, and that they had telephoned him often, each time receiving reassurances. Appellee also testified that she learned of Rubin's suspension not long after it was imposed. Deposition, at 11.
On January 13, 1975, appellants' preliminary objections were argued before the lower court. No lawyer for appellee appeared. On January 31, 1975, the court sustained the preliminary objections and dismissed the complaint without leave to amend. The court had learned at ...