No. 1894 October Term, 1977, Appeal from Order of the Court of Common Pleas, Northampton County, Civil Division-Law, entered June 1, 1977 at No. 397 August Term, 1975.
Gary S. Figore, Easton, for appellants.
No appearance entered nor brief submitted for appellee, Paul G. Lebkuecher.
Donald H. Lipson, Allentown, submitted a brief for appellee, Dr. Frank A. Wolf, Jr.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., joins the majority opinion. Price, J., dissents. Jacobs, President Judge, and Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 610]
Paul G. Lebkuecher, a Pennsylvania resident, brought the instant malpractice suit against Dr. Michael J. Loquasto and Dr. Robert A. Kinsey, both chiropractors, practicing in Pennsylvania, who allegedly injured him while treating him for a pelvic condition. Drs. Loquasto and Kinsey sought to bring in Dr. Frank A. Wolf, Jr., a New Jersey physician, as additional defendant, contending that plaintiff's injuries resulted from improper diagnosis and treatment by Dr. Wolf. Dr. Wolf successfully contested joinder on the ground of lack of in personam jurisdiction. The original defendants took this appeal from the order denying joinder.
As it is undisputed that all treatment appellee*fn1 Wolf rendered to plaintiff was performed in New Jersey, the governing Pennsylvania statute is the Act of November 15, 1972, P.L. 1063, No. 271, 42 Pa.C.S. 8304:*fn2
"Any nonresident of this Commonwealth who, acting individually, under or through a fictitious business name or through an agent, servant or employee, shall have any business in this Commonwealth on or after August 30, 1970, . . . shall be conclusively presumed to have designated the Department of State as his agent for the receipt of service of process in any civil action or proceeding instituted in the courts of this Commonwealth against such individual, if and only if at the time the cause of action accrued or the harm or financial loss occurred, the nonresident or the resident who shall thereafter have become a nonresident, shall have been doing any business within this Commonwealth as heretofore provided."
At the time the cause of action accrued (the operative time under the statute), appellee's activities in Pennsylvania consisted of being licensed to practice medicine here and
[ 255 Pa. Super. Page 611]
maintaining a classified listing in the Easton, Pennsylvania telephone directory.*fn3
As it is not contended that the cause of action arose out of appellee's activities in Pennsylvania,*fn4 those activities must meet the test set forth in Bork v. Mills, 458 Pa. ...