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WILSON v. NORTHERN INSURANCE COMPANY (11/16/67)

decided: November 16, 1967.

WILSON
v.
NORTHERN INSURANCE COMPANY, APPELLANT



Appeal from order of Court of Common Pleas of Dauphin County, Jan. T., 1964, No. 539, in case of Donald D. Wilson et ux. v. Northern Insurance Company.

COUNSEL

John B. Pearson, with him Bailey and Pearson, for appellant.

Arthur A. Kusic, with him Melman, Gekas, Kusic & Nicholas, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J.

Author: Wright

[ 211 Pa. Super. Page 156]

We are here concerned with an appeal by Northern Insurance Company from an order of the Court of Common

[ 211 Pa. Super. Page 157]

Pleas of Dauphin County discharging a rule to show cause why a judgment entered by default in an assumpsit action should not be opened. The action was instituted by Donald D. Wilson and Jean M. Wilson, his wife, to recover the cost of repairs to their dwelling allegedly necessitated by collapse of the building, one of the perils insured against under a policy issued by the appellant. The procedural situation appears in the following excerpt from the opinion*fn1 of Honorable Carl B. Shelley for the court below:

"On February 7, 1964, the plaintiffs instituted an action in assumpsit against the defendant by filing a complaint. On February 10, 1964, the Sheriff of Dauphin County served a copy of said complaint on one David Brightbill, of the Brightbill Insurance Agency, 2115 North Second Street, City of Harrisburg, County of Dauphin, Commonwealth of Pennsylvania, alleged by the plaintiffs to be the agent of the defendant. On March 5, 1964, pursuant to the praecipe filed on behalf of the plaintiffs, the Prothonotary entered judgment in favor of the plaintiffs and against the defendant [for failure to file an answer] in the sum of $1,366.63.

"On March 18, 1964, on motion of the defendant, rule was granted on the plaintiffs to show cause why the default judgment should not be opened and the defendant allowed to defend the action. The basis for the rule was that the complaint was not served on the defendant in accordance with Pennsylvania R. C. P. 2180 and, therefore, this Court never had jurisdiction of the person of the defendant and, further, that the Prothonotary was without authority to enter a default judgment against the defendant. The defendant also averred that it 'will be greatly prejudiced if it is not allowed to defend this action and seasonably assert the

[ 211 Pa. Super. Page 158]

    lack of jurisdiction over its person, as is permitted by Rule 1017(b)(1) of the Rules of Civil Procedure by petition raising the question of jurisdiction'. The plaintiffs filed an answer to the rule averring that proper service of the complaint had been made upon an agent of the defendant in Dauphin County and, further, that the defendant under R. C. P. 1032 has waived all objections to the service by its failure to file preliminary objections to the alleged lack of jurisdiction of the person. Thereafter, to wit, on August 17, 1964, on motion of defendant, a second rule was granted upon plaintiffs to show cause why defendant should not be granted leave to file an amendment to its petition for its first rule wherein the defendant averred that it has a just, true, and meritorious defense to the plaintiffs' claim and sets forth in substance its defense.

"Thereupon, the parties entered into a stipulation that, for the purpose of disposing of the defendant's second rule, it could be assumed that the defendant has a meritorious defense to the action set forth in the plaintiffs' complaint and that ...


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