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Neel v. Ball

Decided: March 19, 1951.

GREGG L. NEEL, INSURANCE COMMISSIONER OF THE COMMONWEALTH OF PENNSYLVANIA, PLAINTIFF-APPELLANT,
v.
CHARLES S. BALL, DEFENDANT-RESPONDENT



On appeal from the Camden County District Court.

For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld and Ackerson. For affirmance -- None. The opinion of the court was delivered by Wachenfeld, J. Heher, J., concurring in result.

Wachenfeld

The plaintiff, in his official capacity as Insurance Commissioner of Pennsylvania, brought actions in the Camden County District Court against 56 defendants to recover sums assessed against them as policyholders in the insolvent Keystone Indemnity Exchange by the Commonwealth of Pennsylvania.

The actions were commenced in September, 1944. Not having been brought on for trial, they were, on September 28, 1948, placed on the "not moved" list. At that time, R.S. 2:32-97 provided that cases marked "not moved" could thereafter be put on the trial list by either party within a period of two years.

On January 1, 1949, Rule 7:7-6 was adopted and provided a case so marked might be brought to trial by either party, upon notice to all adverse parties, within six months and not thereafter.

Pursuant to the new rule, the judge of the Camden District Court, on April 6, 1950, without notice to the plaintiff, directed the clerk to mark the cases discontinued.

Thereafter, on April 10, the judge agreed to hear a motion for the rescission of the order. After argument, the court, on May 3, entered an order denying the motion and confirming the order of discontinuance.

Notices of appeal were filed in all the actions and the Appellate Division ordered them consolidated and one brief and one appendix filed in the case at bar, since precisely the same question is presented with respect to all 56 defendants. The appeal thus taken to the Appellate Division was certified here on our own motion.

The primary question is whether Rule 7:7-6 applied, upon its adoption, to cases already on the "not moved" list and cut

the time during which they might be brought on for trial from two years to six months, as determined by the court below.

The plaintiff contends this would give the rule a retrospective effect which cannot be inferred in the absence of a clear expression in the rule itself that it is to apply to cases on the "not moved" list at the time of its adoption.

The defendant asserts the rule became applicable immediately to all cases, whether or not they had already been marked "not moved," because it governs only the manner of pursuing a remedy and does not impair or affect any substantive right. It is urged, moreover, the appeal is out of time because the order of discontinuance was originally made on April 6 and notice of appeal ...


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