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KRAYNICK v. HERTZ ET AL. (04/22/71)

decided: April 22, 1971.

KRAYNICK
v.
HERTZ ET AL., APPELLANTS



Appeal from an order of Court of Common Pleas of Lehigh County, June T., 1969, No. 232, in case of Michael J. Kraynick, a minor, by and through B. Michael Kraynick, his parent and natural guardian, and B. Michael Kraynick, individually v. Mortimer Hertz and The Gladys Supply Company.

COUNSEL

Clayton T. Hyman, with him Coleman and Hyman, for appellants.

Richard F. Stevens, with him Butz, Hudders & Tallman, for appellees.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts and Mr. Justice Pomeroy join in this dissenting opinion. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissenting opinion.

Author: Jones

[ 443 Pa. Page 106]

This is an appeal from an order by the Court of Common Pleas of Lehigh County refusing to open a default judgment entered in a trespass action.

On May 30, 1967, Michael Kraynick, then ten years of age, was riding his bicycle in Allentown when he was struck by a motor vehicle owned by The Gladys

[ 443 Pa. Page 107]

Supply Company [Supply Company] and operated by Mortimer Hertz [Hertz] and, as a result thereof, Michael Kraynick sustained severe personal injuries.

On May 22, 1969 -- eight days prior to the expiration of the statutory limitation period -- Philip Sheeler, counsel for Michael Kraynick and Dr. B. M. Kraynick, his father, caused a summons in trespass to be issued which was duly served on the Supply Company and Hertz, both of whom were insured against liability under an automobile insurance policy issued by the Reliance Insurance Company [insurance carrier]. No appearance was entered on behalf of Hertz and/or the Supply Company. Attorney Sheeler died on August 19, 1969.

On January 13, 1970, new counsel for Kraynicks filed a complaint in trespass which was duly served upon Hertz and the Supply Company on January 16, 1970, and delivered by the latter to their insurance agent, who, in turn, mailed it to one Albert Oates, an adjuster for the insurance carrier.*fn1 Oates received the complaint on January 20, 1970. On February 6, 1970, at 8:39 a.m. -- the twenty-first day after service of the complaint -- Kraynicks' counsel caused a default judgment to be entered against Hertz and the Supply Company for failure to enter an appearance or file an answer.

The insurance carrier, through its Mr. Oates, first became aware of the entry of the default judgment on February 9, 1970, after his initial contact with the Kraynicks' new counsel. Inasmuch as counsel for the ...


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