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BERNADINE DOUGLAS v. LAVON A. EVANS (05/07/82)

filed: May 7, 1982.

BERNADINE DOUGLAS, ADMINISTRATRIX OF THE ESTATE OF MARK DOUGLAS, DECEASED
v.
LAVON A. EVANS, ADMINISTRATRIX OF THE ESTATE OF GEORGE EVANS, THOMAS E. CONTI AND PHILIP IORIO. APPEAL OF HENKELMAN, KREDER, O'CONNELL & BROOKS AND RALPH J. JOHNSTON, JR., ESQUIRE



No. 609 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Luzerne County, Pennsylvania, Civil Division at No. 2500 Civil of 1980.

COUNSEL

Lucille Marsh, Scranton, for appellants.

Joseph J. Musto, Wilkes-Barre, for Douglas, Conti and Iorio, appellees.

John R. Lenahan, Sr., Scranton, for Evans, appellee.

Spaeth, Popovich and Montgomery, JJ. Montgomery, J., concurs in the result. Spaeth, J., files dissenting opinion.

Author: Popovich

[ 299 Pa. Super. Page 233]

This appeal arises from the trial court's order denying counsels' leave to withdraw their appearance in a wrongful death and survival action per the instructions of United Services Automobile Association, counsels' employer and client. We affirm.

[ 299 Pa. Super. Page 234]

The facts which prompted the filing of the petition to withdraw as summarized by the court below reveal the following:

A policy of automobile liability insurance was issued to defendant, Philip Iorio, by United Services Automobile Association. Appellants, the law firm of Henkelman, Kreder, O'Connell & Brooks, and Ralph J. Johnston, Jr. of Harris, Johnston, and Kennedy, entered their appearance on behalf of the defendant because of an automobile accident which occurred on July 22, 1979. On September 24, 1980, an answer and new matter were filed by appellants on defendant's behalf as instructed by the insurance company. After the company conducted an investigation, it concluded that the insurance policy at issue was not in effect on the date of the accident and instructed appellants to withdraw their appearance. As a result, a petition to withdraw was filed on November 28, 1980. The defendant, however, disputed the insurance company's contention in an answer filed on his behalf by Sandor Yelen, Esquire. Oral arguments and briefs were entertained by the court.

Subsequently, the trial court denied appellant's petition to withdraw and concluded that "the insurer ha[d] waived the right to raise the issue of coverage at this time." Slip Opinion at 4.

The trial court based its decision on the fact that the insurer waited some sixteen months after the accident in order to withdraw from the case and after it had directed appellants to file an appearance, an answer, and new matter. Additionally, the court found that the company offered no explanation as to why the company "took this length of time to make the determination [of coverage] which, on its face, d[id] not appear complicated." Slip Opinion at 4. The court also noted that but for the decision of the insurance company to withdraw from the case, the appellants would continue ...


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