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FREDERICK BUCK AND VIVIAN BUCK v. COLDWAY FOOD EXPRESS (03/17/89)

filed: March 17, 1989.

FREDERICK BUCK AND VIVIAN BUCK, APPELLANTS,
v.
COLDWAY FOOD EXPRESS, INC., JOSEPH J. KLOTZ, JR. & D.J. VISKOE TRUCKING, INC. AND CAROLINA CASUALTY INSURANCE COMPANY



Appeal from the Order entered April 20, 1988, Court of Common Pleas, Philadelphia County, Civil Division at No. 1810 July 1981.

COUNSEL

Joel M. Lieberman, Philadelphia, for appellants.

Albert S. Fein, Philadelphia, for appellees.

Beck, Johnson and Melinson, JJ.

Author: Johnson

[ 383 Pa. Super. Page 582]

This is a garnishment action in which appellants Frederick Buck and Vivian Buck appeal from the order granting the preliminary objections of garnishee/appellee Carolina Casualty Insurance Company (Carolina) to a writ of execution filed by the Bucks. We vacate and remand.

This litigation arose following an April 15, 1980 automobile accident involving a car driven by Vivian Buck, a tractor-trailer owned and driven by William Ewing and a truck driven by Joseph Klotz. Ewing was operating the tractor-trailer under a long-term permanent lease with Coldway Food Express, Inc. (Coldway). At the time of the accident this tractor-trailer was operated pursuant to a "trip-lease" for D.J. Viskoe Trucking, Inc., (Viskoe), the party thus carrying the primary insurance for the Ewing/Coldway/Viskoe tractor-trailer. Klotz was operating a truck owned by Frederick Forte. Vivian Buck was proceeding in a westerly direction on Red Lion Road in Philadelphia and was entering the intersection of Roosevelt Boulevard when she was struck by the Klotz/Forte vehicle. The Klotz/Forte vehicle, attempting to make a right turn from

[ 383 Pa. Super. Page 583]

Roosevelt onto Red Lion, was forced into hitting Buck's car by the erratic actions of the Ewing/Coldway/Viskoe vehicle, which was travelling in the lane to Klotz' right and was also trying to negotiate a right turn onto Red Lion. Vivian Buck sustained spinal and other injuries requiring extensive treatment and rehabilitation.

The Bucks filed suit against Coldway on July 14, 1981. Coldway filed a third-party complaint against Viskoe, Klotz and Forte on September 11, 1981 and attempted to serve the complaint on Viskoe by certified mail. The letter, sent to Viskoe Trucking's last known address, in Illinois, was returned stamped "return to sender, not deliverable as addressed, unable to forward." On October 14, 1981 Coldway requested Viskoe's address from the United States Postmaster and on October 26, 1981 received a Charlotte, North Carolina address from the Postmaster. Coldway immediately sent the complaint by certified and by regular mail to the North Carolina address. On December 3, 1981 Coldway filed an Affidavit of Service pursuant to Pa.R.C.P. 2079(c). The docket entries show a praecipe to reinstate and a reinstatement of the complaint on December 7, 1981, but these documents are not in the record. The complaint was then served upon the two other third-party defendants, Klotz and Forte. As with Viskoe, these defendants had eluded process until this point. However, this time Coldway was successful in completing service upon Klotz and Forte, who then proceeded to defend the action.

After this, although the letter sent to Viskoe by regular mail was never returned, the certified letter was returned on December 20, 1981. Coldway then retained two investigative services in an attempt to locate Viskoe. National Claims Service, Inc., issued a report on January 21, 1982 stating that their efforts yielded no results. Commercial Index Bureau, Inc. also attempted to locate Viskoe for a period of about four months and issued reports in March and in April of 1982 documenting their ultimately unsuccessful efforts.

[ 383 Pa. Super. Page 584]

On May 5, 1982, Coldway petitioned the court for leave to serve process by publication. Their petition, accompanied by affidavits and exhibits, documented their continuous, eight-month long unsuccessful search for Viskoe. The petition was unopposed. By order of May 10, 1982 The Honorable Charles Lord granted the petition. Process was completed by publication on May 21, 1982 in the Philadelphia Legal ...


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