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WNEK v. BOYLE (05/25/53)

May 25, 1953

WNEK
v.
BOYLE, APPELLANT



Appeals, Nos. 164 and 165, Jan. T., 1953, from order of Superior Court, Oct. T., 1952, Nos. 37 and 38, affirming order of Court of Common Pleas of Delaware County, Sept. T., 1949, No. 453, in case of Vivian Livingston and Matthew J. Wnek v. Charles J. Boyle and Edward J. Wnek. Order reversed.

COUNSEL

Edward H. Bryant, Jr., with him Wendell E. Warner and Lutz, Fronefield, Warner &Bryant, for appellant.

Philip A. McMunigal, Jr., with him Geary & Rankin, for appellees.

Before Stern, C.j., Stearne, Jones, Bell and Chidsey, JJ.

Author: Stern

[ 374 Pa. Page 28]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

[ 374 Pa. Page 29]

This case is scarcely to be taken as a model of expeditious and purposeful litigation. The accident which gave rise to it occurred on October 30, 1947, and now, nearly six years later, the parties have not even begun to try the case on its merits but are still enmeshed in mere procedural controversy.

The accident itself, a collision between two automobiles, was apparently not a serious one. The owner and operator of the damaged car, Edward J. Wnek, claims damages of $31.00 for expenses and $525.00 for alleged depreciation in the value of his automobile. Each of his two passengers, Vivian Livingston and Matthew J. Wnek, claims $1500 for injuries sustained.

The plaintiffs, waiting until within two weeks of the expiration of the statute of limitations as to the personal injury claims, entered suit on October 14, 1949, against the operator of the other car, Charles J. Boyle.

This is what happened in the course of the proceedings during the remainder of the year 1949: On November 2, service of the writ was accepted by defendant. On November 21, plaintiffs filed their complaint. On December 16, defendant filed a petition for severance. On December 30, the court dismissed the petition.

This is what happened in the year 1950: On February 10, defendant filed a petition to set aside the order of December 30. On April 27, the court set aside that order and granted severance of Edward J. Wnek's action from that of the other plaintiffs. On May 5, defendant obtained a writ to join Edward J. Wnek as an additional defendant in the severed suit of Vivian Livingston and Matthew J. Wnek and filed a complaint against him. On June 19, the additional defendant answered, pleading in new matter the statute of limitations. On August 9, defendant replied to new matter. ...


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