230 Pa. Super. 311 | Pa. Super. Ct. | 1974
Lead Opinion
Opinion by
These appeals are from the order of the Court of Common Pleas, Civil Division, of Clearfield County granting a petition to open judgments entered by default in favor of Highway Equipment Company and against Hamlin Coal Company and Shawville Coal Company and on the refusal of the court below to set aside garnishments and attachments filed by Highway Equipment Company.
“We are now satisfied that great injustice would result to the defendants if the judgments were permitted to stand. First, after hearing had, we are satisfied that no fraud upon the Court was intended; the record showing that the only sums which had been withdrawn from the accounts after the judgment was opened were for checks on matters handled prior to the default judgment. Next, the record shows that immediately upon institution of the suit, defendants had consulted with their attorney and had been attempting to put together all information necessary to contest the actions and to prosecute counterclaim against the plaintiff. The record shows, too, that there was a basis upon which they could defend and counterclaim. In addition, the custom in the County, although there is no rule requiring the same, has been to the effect that counsel would be advised before any default judgment would be actually entered, particularly where there had been prior dealings. In the instant case it is true that defendants’ counsel had been told there would be no extension of time for filing responsive pleadings, but counsel’s testimony was to the effect that he still did not feel a default judgment would be entered without advance notice thereof. The Court does not fully refer to all of the testimony, but it is satisfied that injustice would result to the corporate defendants in the same manner as was frowned upon in the case of Charles J. Webb Sons Co. versus Webber, 194 Pa. Superior Court 614. As there declared, the defendant ‘had a right to rely on the assumption that . . . [defendant’s attorney] would protect his interest . . . In the interest of justice, this judgment should be opened and defendant let into a defense.’ Here, too,
The opening of a judgment is within the sound discretion and equitable powers of the court below and we find no abuse of discretion in these appeals.
Appellants Hamlin Coal Company and Shawville Coal Company aver that the court below erred in not setting aside the garnishments and attachments of Highway Equipment Company entered upon the judgment which was opened. The court below in its Memorandum Opinion indicated that it was without authority to control the garnishment and attachments and cited Sanctis v. Lagerbusch et ux., 213 Pa. Superior Ct. 483, 487-88, 249 A. 2d 919 (1968), wherein this Court set forth again the rule stated in Markofski v. Yanks, 297 Pa. 74, 146 A. 569 (1929), which reads: “. . . Even after a hearing on the rule where the judgment is opened and the appellants permitted to defend, the judgment is still a lien and the lien of a levy previously made on am execution outstanding is also retained.”
An order opening a judgment is interlocutory in nature and the court retains the power to control said judgment, garnishments, attachments and executions entered on said judgment. He may determine at hearing the extent of the relief, if any, the appellants are entitled to by determining the assets available to respond to the judgment in addition to the funds garnished or attached. In this case there is no indebtedness admitted by the coal companies to Highway Equipment Company and a counterclaim has been filed far exceeding the amount of the judgment or the sums garnished. However, in the present state of the record, these are
Therefore, the order of the court below opening the judgments entered against the defendant alloAving them to file responsive pleadings and/or counterclaims is affirmed and the order refusing to set aside the lien of the attachments is reversed and remanded to the court below for further consideration in accordance with this opinion.
Concurrence in Part
Concurring and Dissenting Opinion by
In this case, default judgments were taken for failure to file an answer Avithin 38 days after service of the complaint. At the time judgments were taken the plaintiff below issued attachment executions against defendants’ bank accounts and a debtor of defendants. The court below opened the judgments against defendants and let them in to a defense, but refused to disturb the lien of the attachments. Plaintiff appealed that part of the order opening the judgments and defendants appealed from the refusal to set aside the lien of the attachments.
The majority affirms the order opening the judgments and in that result I concur. However, the majority reverses the order refusing to set aside the lien of the attachments and remands for further consideration. I respectfully disagree with such order because it implies that the court below can set aside the attachments at its discretion. In my opinion, the attachments should not be set aside upon the opening of the judgments unless there is no conceivable basis on Avhich the plaintiff can recover or adequate alternate security is posted by defendants.
For the first proposition I cite Joseph Melnick Bldg. and Loan Ass’n v. Melnick, 361 Pa. 328, 64 A. 2d 773 (1949), where the Supreme Court approved the dissolu
As the majority opinion states, defendants’ defense and counterclaim are merely unproven allegations. This is not a case where it is clear plaintiff can not recover or that defendants are not liable nor have defendants offered security equivalent to the liens. Under the circumstances of this case, the court below was correct in refusing to set aside the lien of the attachments and I would affirm that action.