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CURRY v. NAPOLITANO (03/14/55)

March 14, 1955

CURRY
v.
NAPOLITANO, APPELLANT.



Appeal, No. 59, Jan. T., 1955, from order of Court of Common Pleas of Lehigh County, April T., 1953, No. 26, in case of Peter P. Curry et ux. v. Frank A. Napolitano, trading as Snooks Sandwich Shop, and Lehigh Valley Transit Company. Order affirmed.

COUNSEL

Irving W. Coleman, for appellant.

Paul A. McGinley, for appellee.

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

Author: Stearne

[ 381 Pa. Page 37]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The question raised in this appeal by an insurance carrier in a trespass action is whether or not the court below abused its discretion in refusing to open a default judgment unless counsel for defendant filed a statement of his willingness to defend the action to final judgment.

Peter P. Curry and his wife Josephine, the plaintiffs, instituted an action in trespass against Frank

[ 381 Pa. Page 38]

A. Napolitano, defendant, for injuries received by wifeplaintiff in an automobile accident due to the alleged negligence of defendant. Irving W. Coleman, Esq., is counsel for Standard Accident Insurance Company of Detroit, Michigan, defendant's insurance carrier. The action was commenced January 14, 1953, and defendant was served by the sheriff on January 23, 1953. Defendant did not notify the insurance carrier of the suit until February 12, 1953. On February 17, 1953, plaintiffs took judgment against defendant for want of an appearance and answer. The judgment is in no monetary amount since the claim is for unliquidated damages and was entered for want of an appearance.

Mr. Coleman, being unaware of the entry of the judgment, on February 21, 1953, entered an appearance for defendant and on March 13, 1953, issued a praecipe to join Lehigh Valley Transit Company as an additional defendant. On April 20, 1953, Mr. Coleman, having discovered that judgment had been entered, petitioned the court to open the judgment averring a meritorious defense and that defendant had first notified his insurance carrier of the suit on February 12, 1853. On that day the defendant delivered the complaint to the insurance agent who immediately mailed it to the central office in Philadelphia, but it was not received by the addressee until February 16, 1953. The following day, February 17th, counsel received the complaint and on February 21, 1953, the appearance above referred to was entered. Mr. Coleman is now unable to locate the defendant.

The learned court below, upon petition, answer and depositions, entered a decree as follows: "... it is ordered and decreed that, upon defense counsel's filing within twenty (20) days, a statement of his desire and willingness to defend above-captioned ...


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