Zalevsky v. CASILLO
Zalevsky v. CASILLO
Opinion of the Court
Opinion by
A trespass action was instituted by minor plaintiff and bis parents against defendant physician, the present appellee, based on alleged negligence and malpractice. Thereafter appellee filed a complaint to join a second physician, appellant herein, as additional defendant. Appellant appeals from an order dismissing his preliminary objections to the service. Appellant had removed to Florida, and service was attempted pursuant to the Non-Besident Engaging in Business Law
Appellant contends that he was not engaged in business in Pennsylvania at the time of the attempted service. He relies for his first argument upon the comments in Goodrich-Amram, §2077(a)-21 and Anderson, Pennsylvania Civil Practice, §2077.27. These authorities conclude that under the business defendant stat
We do, however, believe that appellant cannot be served with process pursuant to Buies 2077(a)(2) and 2079(b), because he was not engaged in business in this Commonwealth at the time service was attempted. As of August 1, 1961, appellant retired from the practice of medicine in Pennsylvania. Thereafter, he retained no interest in the partnership other than to receive his share of fees earned prior to the date of the dissolution of partnership. It is true that appellant’s name remained on the office door and that a telephone listing was maintained for him at the partnership number and address. The dissolution agreement made no reference to these matters, and appellant was charged after July 31, 1961 for neither the listing in the directory nor any other expenses of his former partnership. Further, it is a common professional and business practice for the name of a retired partner to remain for a reasonable length of time on the office door and firm letterhead either out of respect for the departed associate or to capitalize on the good will generated by his name. In the instant matter, appellant’s relationship With his old partnership was no different from that of any retired doctor, lawyer, or businessman who is no longer engaged in his profession or business. Appellee relies upon Stoner v. Higginson, 316 Pa. 431, 175 Atl. 527 (1934), for his contention that appellant was engaged in business in this Commonwealth on the date service was attempted. In that case, this Court held
Although the point was not raised by appellant and is not necessary to our decision the writer believes that there exists some question as to whether the Pennsylvania “long-arm statutes” and the procedural rules promulgated thereunder were intended to apply to appellant, since as a physician, he may never have been “engaged in business” within the meaning of our acts and rules. In Wilhelm v. Taylor, 364 S.W. 2d 674 (Ark. 1963), a writ of prohibition was sought by an anesthesiologist who had been named as a defendant in an action for personal injuries caused by petitioner’s alleged negligence. She had removed from Arkansas to Texas prior to the time service was attempted pursuant to the Arkansas statute providing for service upon a nonresident. Although the Supreme Court of Arkansas granted the writ on other grounds, the decision treated the anesthesiologist as though she were clearly within the intendment of the legislature when it enacted the statute in question. That statute provides : “Any non-resident person . . . who shall do any . . . character of work or service in this State shall, by
. By providing for service upon any nonresident who shall do any service in Arkansas, the legislature obviously intended to include a nonresident anesthesiologist, as well as a nonresident physician, lawyer, engineer, architect and other practitioner, within its service provisions. Our own statutes are not so clear, for they provide merely for service upon any nonresident who shall engage in business in this Commonwealth. It remains for some other decision to determine whether or not a nonresident “who shall engage in business” encompasses a nonresident practitioner in one of the professional fields of endeavor.
Order reversed.
“Where any person or persons, not being residents of this commonwealth, shall engage in business in any county within this commonwealth, and not being in the county at the time ox the issuing of any writ or process against such person or xiersons, it shall be lawful for the officer charged with the service thereof to serve any writ of summons or any other mesne process, in like manner as summons are served, upon the agent or clerk of such defendant or defendants at the usual place of business, or residence, of such agent or clerk, with the same effect as if served upon the principal or principals personally. . . .” Act of April 2, 1856, P. L. 219, §1, 12 P.S. §296.
“When any person or persons, not being residents of this commonwealth, shall engage in business in any county of this commonwealth, it shall and may be lawful for the officer charged with the execution of any writ or process issued out of any of the courts of this commonwealth to serve the same upon any clerk or agent of such person or persons, at the usual place of business or residence of such agent or clerk, with like effect as though such writ
“Rule 2077. Application of rules (a) The rules of this chapter apply to . . . (2) actions as to which the laws of this Commonwealth authorize service of process upon a non-resident individual engaged in business within the Commonwealth,”
“Rule 2079. Service of process ... (b) If an action of the class specified in Rule 2077(a) (2) is commenced in the county in which the cause of action arose or in a county in which he is en» gaged in business, process may be served upon the defendant per» sonally or by having the sheriff of the county in which the action is commenced, or by having a duly deputized sheriff, hand a true and attested copy of the process at any office or usual place of business of the defendant to the agent, clerk or person for the time being in charge thereof.”
Dissenting Opinion
Dissenting Opinion by
In my view, the term “doing business” is merely descriptive, and should be equated with such minimal contacts with this Commonwealth so that the maintenance of a suit in our courts would not offend “traditional notions of fair play and substantial justice.” Cf. Empire Steel Corp. v. Superior Court, 56 Cal. 2d 823, 366 P. 2d 502 (1961); Henry R. Jahn & Son v. Superior Court, 49 Cal. 2d 855, 323 P. 2d 437 (1958) (both construing statutory provision); W. H. Elliott & Sons Co., v. Nuodex Products Co., 243 F. 2d 116 (1st Cir. 1957) (discussion of New Hampshire statute); Notes, 10 Hastings L.J. 206 (1958).
Under, the' circumstances of this case, therefore, in which no one disputes that appellant was “doing business” within the Commonwealth at the time the alleged negligence upon which this action is predicated
Case-law data current through December 31, 2025. Source: CourtListener bulk data.