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ROSEBERG v. SILVER (05/27/53)

May 27, 1953

ROSEBERG, APPELLANT,
v.
SILVER



Appeal, No. 148, Jan. T., 1953, from order of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1946, No. 4630, in case of Harry Z. Rosenberg and Anna F. Rosenberg, trading as H. Z. Rosenberg & Co. v. Charles Silver. Order affirmed.

COUNSEL

Mitchell W. Miller, with him Levi, Mandel & Miller, for appellants.

Horace A. Stern, with him Wexler, Mulder & Weisman, and John E. Mulder, for appellee.

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

Author: Musmanno

[ 374 Pa. Page 75]

OPINION BY MR. JUSTICE MUSMANNO

On February 25, 1947, a summons in assumpsit issued in this case from the Court of Common Pleas No. 6, Philadelphia County, and 2 days later it was in the hands of the defendant Charles Silver. No Complaint

[ 374 Pa. Page 76]

    having been served, the defendant on March 11, 1947, ruled the plaintiffs, Harry Z. Rosenberg and Anna F. Rosenberg, trading as H. Z. Rosenberg & Co., for a Complaint or suffer judgment of non pros. On September 29, 1951, four years and nine months after the plaintiffs initiated their action, the defendant died; and the case against him had still not proceeded beyond the summons stage. Finally on April 18, 1952, the Complaint in Assumpsit was filed with the Prothonotary and then on September 22, 1952, a Suggestion of Death was entered, together with a rule on the executrix, Etta Silver, to show cause why as personal representative of the deceased, she should not be substituted as a party defendant. The executrix answered adversely on October 10, 1952. The court below discharged the rule and this appeal followed.

The plaintiffs contend that the substitution of a personal representative is but routine procedure and no discretionary intervention by the Court was required. Section 602 (b) of Article VI of the Fiduciaries Act of 1949, April 18, P.L. 512 (20 P.S. 320.602), reads: "(b) Compulsory substitution. If the personal representative does not voluntarily become a party, the prothonotary or clerk of the court, as the case may be, upon the praecipe of an adverse party setting forth the material facts, shall enter a rule upon the personal representative to show cause why he should not be substituted as a party."

Since the personal representative has the right to show cause why he should not be substituted, court machinery must be provided for determining the ensuing contest. The very right to issue a rule to show cause legally presupposes a judicial discretionary authority. Thus, it cannot be questioned that the Court of Common Pleas was empowered to refuse the permission sought for in the substitution of parties, and our inquiry is

[ 374 Pa. Page 77]

    therefore limited to determining whether the Court abused ...


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