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EMERT v. LARAMI CORPORATION (ET AL. (05/27/64)

May 27, 1964

EMERT
v.
LARAMI CORPORATION (ET AL., APPELLANT).



Appeal, No. 157, Jan. T., 1964, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1963, No. 2890, in case of Roger Emert, a minor, by his natural guardians, Richard L. Emert and Alice L. Emert et al. v. Larami Corporation, R & N Enterprises, and Horace C. Cressman. Order reversed.

COUNSEL

James M. Marsh, with him Joseph G. Manta, and LaBrum and Doak, for appellant.

L. Carter Anderson, with him J. Grant McCabe, III, and Rawle & Henderson, for appellee.

Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 414 Pa. Page 397]

OPINION BY MR. JUSTICE JONES

This appeal attacks an order of the Court of Common Pleas No. 2 of Philadelphia County which upheld the validity of a deputized service of a writ of summons in a trespass action under Rule 1043, Pa. R.C.P.

Roger L. Emert, a minor, and Richard L. Emert and Alice L. Emert (Emerts), instituted a trespass action in Court of Common Pleas No. 2 of Philadelphia County against Larami Corporation (Larami). In their complaint, the Emerts alleged: that they reside in Perkasie, Bucks County;*fn1 that Larami is engaged, as manufacturer, employer, supplier, wholesaler and/or manufacturer's representative, in the wholesale toy business in Philadelphia, Philadelphia County; that Larami, in its several capacities, distributed childrens'

[ 414 Pa. Page 398]

    toy sling shots to R & N Enterprises (R & N), Souderton, Montgomery County; that R & N, in turn, distributed certain of these sling shots to Horace Cressman (Cressman) in Perkasie; that the minor, Roger Emert, purchased from Cressman a sling shot; that the handle of this sling shot - made of plastic material - "was inherently weak so that when ordinary application of pressure was applied in pulling the sling back to shoot the handle was caused to break"; that, while the minor, Roger Emert, was using the sling shot, the handle broke causing him personal injuries; that Larami was negligent in: (a) failing to use due care in testing the sling shot; (b) failing to see that the sling shot material was strong; (c) failing to thoroughly inspect the sling shot and (d) failing to give proper directions and warning on the sling shot wrapping.*fn2 Larami issued writs of summons to join as additional defendants R & N and Cressman. Cressman was served with such writ by the Sheriff of Bucks County who was deputized to make service by the Sheriff of Philadelphia County. Cressman moved to set aside the service of this writ upon the ground that such service violated Rule 1043, Pa. R.C.P. The court below entered an order upholding the service and from that order Cressman appeals.

This appeal involves the construction of Rule 1043 and its application to the present factual situation. Rule 1043 provides that: "When an action against an individual is commenced in the county where the cause of action arose, the plaintiff shall have the right of service in any other county by having the sheriff of

[ 414 Pa. Page 399]

    the county in which the action was commenced deputize the sheriff of the other county where service may be had." (Emphasis supplied) While Rule 1043 applies only to the right of service of the plaintiff in an action, yet, by virtue of Rules 2252(a) and 2254(a) Pa. R.C.P.,* ...


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