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KENNY v. LIEBERMAN ET AL. (06/11/58)

June 11, 1958

KENNY
v.
LIEBERMAN ET AL., APPELLANTS.



Appeals, Nos. 19 and 20, Feb. T., 1958, from judgments of Court of Common Pleas of Luzerne County, May T., 1952, Nos. 1023 and 1024, in cases of Anne Kenny v. Harry Lieberman et al., and Kathryn Kerestes v. Same. Judgments affirmed.

COUNSEL

James Lenahan Brown, with him Frank McGuigan, and Flood and Brown, for appellants.

John Arnold Crisman, with him H. Monroe Houtz, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt, and Gunther, JJ., absent).

Author: Ervin

[ 187 Pa. Super. Page 8]

OPINION BY ERVIN, J.

These are two individual appeals from the refusal of the court below to grant defendants' motions for judgment n.o.v. Since the facts are the same in both cases, they will be disposed of in one opinion.

As a result of an accident that occurred on April 24, 1950, the plaintiffs instituted actions in trespass on April 21, 1952 by the issuance of summons against Posten Taxi Company. On May 8, 1952 an appearance was entered by an attorney for the defendant, Posten Taxi Company. Complaints were filed in February of 1954. In April and March of 1954 amended complaints were filed naming Harry Lieberman and Hermoine H. Lieberman, trading as Posten Taxi Company, as defendants. The amended complaints were thereafter served on both of the defendants. Subsequent to the service of the amended complaints, the attorney for the defendant, Posten Taxi Company, was permitted to withdraw his appearance. On October 11, 1956 a petition was filed indicating that James Lenahan Brown and Daniel Flood represented the defendant, Posten Taxi Company, and H. Monroe Houtz and John Arnold Crisman represented the plaintiffs. The two cases were tried together on December 3, 1956 and the jury returned verdicts in favor of the plaintiffs and against Harry Lieberman and Hermoine H. Lieberman, trading as Posten Taxi Company, in the sums of $1,500.00 and $1,000.00 respectively. At the end of the plaintiffs' cases the defendants' attorneys filed motions for nonsuits specifically stating in paragraph 4 thereof: "The Plaintiffs have offered no evidence connecting the defendants, Harry Lieberman and Hermoine H. Lieberman, individually, with responsibility for the

[ 187 Pa. Super. Page 9]

    tort in question and, therefore, it is requested that a non-suit be entered as to Harry Lieberman and Hermoine H. Lieberman individually."

After the verdicts, defendants' attorneys moved for judgment n.o.v. and gave the caption of the case as against Harry Lieberman et al., defendants.

The amended complaint named the two partners who operated the Posten Taxi Company, whereas the original complaint merely named the Posten Taxi Company as defendant. The defendants' attorneys never raised the question of jurisdiction of the person until the time of argument on the motion for judgment n.o.v.

Pa. R.C.P. No. 1032 provides: "A party waives all defenses and objections which he does not present either by preliminary objection, answer or reply. ..." There are certain exceptions to this rule ...


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