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LOVEJOY ET AL. v. GEORGEFF (04/12/73)

decided: April 12, 1973.

LOVEJOY ET AL., APPELLANTS,
v.
GEORGEFF



Appeal from order of Court of Common Pleas of Montgomery County, No. 70-140-73 of 1972, in case of Robert Lovejoy, a minor by Roy B. Lovejoy, his parent and natural guardian, and Roy B. Lovejoy, individually v. Nicholas Georgeff, administrator of the estate of Daniel Georgeff, deceased, and Nicholas Georgeff, individually, and Robert J. Georgeff.

COUNSEL

John L. Jenkins, with him John P. McKelligott, A. Grant Sprecher, Jerome B. Nulty, Obermayer, Rebmann, Maxwell & Hippel, and Clemens and Nulty, for appellants.

William H. Pugh, IV, with him Bean, DeAngelis, Kaufman & Kane, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 224 Pa. Super. Page 208]

This is an appeal from an order granting a motion for judgment on the pleadings. In granting the motion, the lower court held that the 2-year statute of limitations which applies to personal injury actions had run in favor of the estate of an alleged tort-feasor. The plaintiffs have appealed. We affirm.

Plaintiff Robert Lovejoy, a minor, was injured on November 8, 1968, when the car in which he was riding as a passenger collided with a telephone pole. Plaintiff Roy Lovejoy, his father, incurred certain medical expenses on his son's behalf as a result of the accident.

[ 224 Pa. Super. Page 209]

The driver of the car, whose estate is being sued through its administrator in the present action, died the day following the accident. The fact of his death was known to the plaintiffs.

No settlement having resulted from various negotiations regarding their losses, the plaintiffs, in preparation for a suit against the driver's estate, caused certain citations to be issued by the Register of Wills of Montgomery County, on November 2, 1970; these notified the parents of the driver that letters of administration on his estate had been applied for and directed them to appear before the register of wills to take action or explain their position with regard to the application. Although the citations were issued within 2 years of the accident, they permitted, by their terms, the appearances of the parents to take place as late as November 12, 1970, several days after the 2-year period had elapsed.

On the final day permitted in the citations for appearance, November 12, 1970, the mother of the driver renounced her right to letters and the father, Nicholas Georgeff, applied for letters. The letters were issued to him on November 20, 1970.

Prior to the issuance of letters, plaintiffs, on November 5, 1970, filed a summons in trespass in the present action. It will be noted that November 5, 1970, was a date within 2 years of the accident. Named in the summons were Nicholas Georgeff, styled as "administrator" of the driver's estate and summoned in that capacity, and Nicholas Georgeff as an individual, and Robert J. Georgeff as an individual.*fn1

On July 7, 1971, following the filing of plaintiffs' complaint, defendant Nicholas Georgeff moved for judgment on the ...


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