No. 876 October Term 1978, Appeal from the Court of Common Pleas of Phila. County, as of No. 1290 Aug. Term 1977.
Richard P. Weishaupt, Philadelphia, for appellant.
Jeffrey M. Freedman, Philadelphia, did not file a brief for appellee.
Price, Spaeth and Watkins, JJ. Price, J. files a dissenting statement.
[ 267 Pa. Super. Page 438]
This is an appeal from an order striking preliminary objections to the lower court's jurisdiction.
The action was brought by appellee Hahnemann Medical College & Hospital of Pennsylvania to collect fees for medical services rendered to appellant, who is a resident of the State of Delaware. The complaint was served on appellant on August 19, 1977, pursuant to Rule 2077, Pa.R.Civ.P., which provides for service on non-residents "engaged in business in the Commonwealth."
On September 2, 1977, appellant's Philadelphia counsel wrote to appellee's counsel to request a ten-day extension in which to plead to the complaint, stating, "[R]ather than answer before I speak to my client, I would prefer a brief extension." Appellee's counsel did not at once reply to this letter, and both the twenty-day period prescribed by Rule 1026 and the requested ten-day extension expired without
[ 267 Pa. Super. Page 439]
appellant filing any pleading.*fn1 On September 20 appellee's counsel did not reply to appellant's counsel's letter and granted an extension until September 30, limiting the extension, however, to the filing of an answer, and not any other responsive pleading. Ignoring this letter, appellant's counsel on September 26 filed preliminary objections to the court's jurisdiction over his client.
In accordance with Rule 1027(1), Pa.R.Civ.P., appellant's counsel served the preliminary objections on appellee's counsel by certified mail at the address given by appellee's counsel on the back of the complaint. This was the only address appellee's counsel had supplied; in fact, however, he had moved his offices, without leaving an adequate forwarding address. On September 29, and again on October 4, the postal service sent notices to appellee's counsel to claim the letter; appellee's counsel finally received the preliminary objections on October 20. On November 1, he filed a motion to strike appellant's preliminary objections*fn2 on the ground that they were in violation of an agreement between counsel.
The lower court granted appellee's motion to strike, finding that appellant's counsel had agreed to limit himself to an answer in return for an extension of time in which to plead.
The first question presented is whether the record discloses an agreement between counsel regarding an extension of time. We agree with appellant that in answering this ...