No. 372 January Term, 1978, Appeal from Order of the Superior Court, Affirming Order of the Court of Common Pleas, Civil Action Law, of Bucks County, at No. 76-2016-05-2.
Julius E. Fioravanti, Philadelphia, for appellant.
Peter A. Glascott, Doylestown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty, and Kauffman, JJ. Larsen, J., concurs in the result. Kauffman, J., files a dissenting opinion.
This is an appeal from an order entered in the Court of Common Pleas of Bucks County, Civil Action, Law, granting appellee's motion to take off judgment. The question presented asks whether one of multiple defendants in a trespass action, not served with process, remains subject to valid service of process after the plaintiff's action has been non prossed for failure to proceed. The unusual procedural history of the case is as follows.
On March 5, 1976, three days prior to the expiration of the applicable statute of limitations, Anna M. Vandegrift, a/k/a Anna M. Vandergrift, appellant herein, commenced an action in trespass in the Court of Common Pleas of Bucks County. Named as defendants were appellees, Knights Road Industrial Park, Inc., J. Camerlengo Contractors, Inc., and J. Camerlengo Builders Supply Corporation. The action was commenced by a writ of summons in trespass, and although two defendants were served with process, the sheriff returned "not found" as to defendant Industrial Park.
On March 29, 1976, counsel entered his appearance "for defendants," and it was so entered on the docket. On June 3, 1976, counsel for defendants filed a praecipe for rule on
plaintiff to file a complaint. After much dilatory action on the part of plaintiff, counsel for defendants, on November 18, 1976, obtained a judgment of non pros for failure to proceed. To that date defendant Industrial Park had not been personally served with process in this action.
On November 23, 1976, appellant filed complaint against Industrial Park and its co-defendants at the same number and term, and on November 30, 1976, obtained personal service of the complaint on all three defendants through the Bucks County sheriff's office. Counsel for defendants filed preliminary objections to the complaint, pleading prior judgment of non pros; plaintiff simultaneously filed a petition to open judgment of non pros.
On January 7, 1977, the trial court sustained the preliminary objections and dismissed appellant's complaint. No disposition of the petition ...