*3 BROSKY, Before POPOVICH, ROWLEY and JJ. POPOVICH, Judge: is an appeal
This from an order of trial court which relief appellant-defendant, denied Stop-N-Go Food Pittsburgh, Inc., Stores after the of a petition to judgment. strike and/or a default open We affirm. (1) Appellant following raises issues: whether thé judgment default improperly appellee- entered because Jr., Marzullo, John failed to file plaintiff, a notice intent (2) judgment; to take a default whether is entitled appellant it reopen judgment promptly because acted and had a complete appellee’s reasonable excuse and a defense to the claim; and whether the default judgment was entered $14,575.27 improperly appellee’s because the claim was unliquidated.
We have reviewed contention and con appellant clude that is not entitled to relief. The third issue has been waived because failed to present this 302(a). at the trial theory level. Pa.R.A.P. The other two must issues also be rejected. 11,1985, appellee
On June filed a summons in civil action against his employer, Stop-N-Go Food Stores. On July 1985, appellant filed a rule upon appellee to file a and a complaint, complaint was filed five weeks later. On August preliminary objections were filed on the appellee basis that failed to state a cause of action upon relief could granted. Appellee which contended that his employer changed the unilaterally compensation program without additional consideration and appellee’s breached the management contract.
These objections granted part and in part, denied appellee was directed to file a more definite complaint. 16th, appellee On October filed an complaint. amended On 15th, November appellant filed a second set of preliminary complaint; these were dismissed *4 6, without prejudice December 13, 1986, January On appellant filed a motion for recon- sideration, which was denied on January 24th. On Febru- 18th a default ary judgment Appellant’s was entered. to strike petitions open judgment denied, and/or appeal followed. Although appellant concedes the fact that an answer was not filed timely, appellant appellee contends that
110 required to file a notice of intent to enter a judg- default pursuant ment to Pa.R.C.P. 237.1. agree. We do not 237.1(a) Pa.R.C.P. states: Praecipe Entry
Rule 237.1. Notice of for of Default Judgment
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and thereafter, a default occurs judgment by default may be entered by the prothonotary without prior notice under this rule. A copy the notice or agreement shall be attached to the praecipe.
(b) This rule (1) does not apply to a judgment entered pursuant to an order of court or rule to show cause or any action subject provisions No. 6 of P.L. 41 seq. P.S. 101 et §
We have said “[wjhether to strike a judg default ment in an assumpsit action is court, left to the trial whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Paules v. Sminkey, Pa.Super.Ct. 223, 227, (1981).” 434 A.2d Giallo renzo v. American Druggists Insurance Company, (1982). We also recognize that “[jjudgments are stricken only irregular ity on the entered, record. Once regularly they can be opened only upon equitable principles.” Estate Blanche B. Levy By Levy v. CNA Insurance Company, 338 Pa.Su per. (Emphasis (Citations original) omitted).
Thus, our concern is whether the record as filed by appellee “at entry adequate to sustain the judgment, or is defective some way.” Industries, Parliament Inc. v. *5 1, 8, Co., Inc., 501 Pa. & Vaughan H. William omitted). case, because (1983)(citations 720, 724 trial defective, the action of the affirm we record is court. that the executed record reveals of the
Our review plead” or otherwise file “an Answer agreement a written January In a letter dated February counsel a letter to appellee’s counsel forwarded re- agreement of a written the existence confirmed which com- respond appellee’s quiring following: This letter stated plaint. thirty of time of an extension
“This will confirm an Answer 1986 for Defendant January from file Record Complaint____” plead otherwise Plaintiffs added). (Emphasis Exhibit C. at No. how- complaint; file an answer to did not
Appellant filed a “MO- ever, period appellant thirty day within 13, 1986, to on January FOR RECONSIDERATION” TION denied appellant’s order which trial court’s for the second time. that the motion the same date January On denied, counsel drafted a appellee’s was reconsideration language: following letter which consisted 24, 1986 January Pasciullo, Esquire
Nicholas A. Jones, and Gerace Gregg, Creehan Floor, Building 16th Grant PA 15219-2294
Pittsburgh, Stop-n-Go
Re: Marzullo
Dear Mr. Pasciullo: 24,1986, January Judge
I Narick present before designated your date, place you and at 9:30 at the time When, a.m., all other at 10 January letter of inquired Narick as to presented, Motions had been explained I in the courtroom. presence reason for my attached to signed the Order situation and the my denying your Answer Motion for Reconsideration *6 ordering counsel fees. $200.00
A conformed of copy Order Court enclosed Order, herein. that kindly Pursuant to forward me a Brennan, Daley check & in payable Robins the amount of on or February before $200.00 argument As did you ultimately your schedule the on Reconsideration, Motion for I will live my with extension of thirty granted time of January thereby your filed on expecting February answer or before 3, 1986.
Sincerely yours, BARRY M. SIMPSON BMS/ti
Enclosure #
Record Exhibit at “A”. letter dated January which was of consisted following:
January
Barry Simpson, Esquire M.
Brennan, Robins Daley &
Nineteenth Floor Building
Commonwealth PA
Pittsburgh, Stop-N-Go
Re: Marzullo v.
Dear Simpson: Mr.
This is that notify you defendant's Motion for Recon- brought sideration will be before Narick at 9:30 a.m. on Friday, January addition, you note in request will for an my time, of
extension I advised you that I or would Answer plead plaintiffs otherwise Complaint. Defendant's Motion for Reconsideration a pleading other an than plaintiff's Answer to Complaint. I must remind and the of you
It is Court apparent extending time for to file courtesy plaintiff defendant’s , Complaint , his . Very truly yours,
„.____ NAP/jd Nicholas A. Pasciullo Record at # Exhibit “D” examining
When the filing whether of motion could equivalent reconsideration be the pleading, guided by we are Pa.R.C.P. 131 which states:
Rule 131. Rules Pari Materia Rules parts pari or rules they are materia when relate to same proceedings class of proceedings. Rules in materia pari together, shall be construed if possible, rule or chapter as one one of rules. *7 rule,
We also refer to must another Pa.R.C.P. which states: Pleadings
Rule 1017. Allowed (a) The in pleadings an action are limited a com- plaint, thereto, an if reply answer a the answer contains new matter a counterclaim, a if counter-reply the reply to a matter, counterclaim contains new and preliminary objections and an answer thereto. Thus, because the rules of procedure
civil must be con- materia, sidered pari the filing of a motion for reconsid- eration is not equivalent to filing pleading. of a Accord- ingly, when appellant reconsideration, filed a motion for required was still file an answer or “otherwise plead” by the extension date.
According appellant, the case of Estate Levy By of Levy CNA Insurance Company, supra, controlling and requires appellant to a Rule file 237.1 notice before entering judgment. default case distin- guishable.
In filed a Levy, appellants-plaintiffs complaint assump- sit/trespass an insurance its against company and autho- rized the loss of items agent for which were severe- certain ly damaged Appellants initially granted appellees a fire. by In- an extension to file an 1982. February answer answer, filing appellees stead of an filed objec- and, as a granted part, were objections tions. These April on complaint an amended result, filed appellants 1982. and this given, file an was answer
Another extension preliminary objections. set of filed a second appellees time appellees on 1982 and denied June were These of Instead days to file an answer. twenty given production for request filed a answer, appellees an after the interrogatories notice of service documents on June lapsed, which day period twenty June praecipe judgment filed a Appellants file an failure to appellants’ due to was entered Judgment Levy, we said: answer. give their failure to written deny do not
Appellants nevertheless, argue that they praecipe; of their notice the order of time and for the extension agreements two require- the notice 1982 dismissed court dated June exceptions several provides Rule 237.1 ment. are as follows: of which requirement, notice two of time for an extension 1) agreement If a written must action required which the a time within specifies thereafter, by judgment default occurs taken and a be without prothonotary entered may default rule. notice under this prior entered judgment to ... 2) apply This rule does cause. court or rule to show to an order of pursuant *8 give their consent to us hold that would have Appellants original the file answers to additional time to appellees agreements which written complaints were and amended that It is true follow- unnecessary. notice rendered the letters dated Janu- appellants, given by oral consent ing counsel appellees’ from May 1982 and ary to the plead of extensions confirmations written were complaint. and amended complaint from appellees’ here did not arise dispute the and to the original complaint to the to file answers failure the filing days complaint amended within prelimi- appellees’ It not until complaint. amended objections to the nary complaint amended were denied by order dated from days elapsed June had date, in appellees Appellants that that were did default. not consent to an extension to file an beyond answer June 1982; therefore, there was no to the exception notice of intent to file a The praecipe. agreements two earlier time for filing pleadings to extend the do not apply 20-day response period which on commenced June 1982.
Id.,
Pa.Superior
Ct. at
preliminary objections had been filed and the awaiting disposition the trial court’s on If the merits. such case, were the the rules are A is clear. entitled to an party twenty days respond additional which the according to following: Preliminary Objections
Rule (a) shall Preliminary state the specifically grounds relied upon. All
(b) preliminary objections shall be raised at one They time. be may inconsistent. Two or more prelimi- nary objections may be raised one pleading.
(c) A party may pleading file an amended as of course (10) ten days within after of a copy preliminary service objections. court shall determine promptly pre- all liminary If objections. raised, an issue of fact shall depositions court take evidence or otherwise. overruled, the preliminary objections are (d) If shall have objecting party right plead over with- (20) twenty days notice the order or within after other as such time shall court fix. If
(e) amendment, of an an pleading new or pleading required, allowed it shall filed within after notice of order twenty or within Added). such other (Emphasis time as court shall fix. Instead, procedural we have before us a history which establishes been objections had denied Although appellant December an had additional *9 over”, “plead had twenty days which the time until agreed February extend Id. filed, appellee When an answer was waited an additional (15) entering fifteen before a default judgment. Thus, was not for the court to rule on appellant waiting rather, preliminary objections; asking its court to reconsider its circumstances, ruling. Under these Levy distinguishable inapposite is the facts of the our research no Additionally, support case. has revealed for filing petition for of a reconsideration to either under the Local Rules Allegheny County Pennsylvania or under the Rules of Civil Procedure. areas, in the and criminal By analogy, both civil filing augment of a motion to reconsider does not the time Court. Erie Human filing for an to our period appeal v. Erie Insurance Exchange, Relations Commission (1982) (“A Pa.Super. petition for Common stay appeal period”); reconsideration will not Holden, wealth v. (1986) (“ for filing
1274-5 'The mere of motion modifica scheduling hearing tion and the court’s of a do not affect running thirty day period of the for a timely appeal____’”) (quoting notice of Pa.R.Crim.P. 1410 Com- 1410 and Pa.R.A.P. 1701. mentary); See also Pa.R.Crim.P. The record indicates that the trial court denied appel- reconsideration motion. The trial court also awarded 2503(7) lee counsel fees under 42 Pa.C.S.A. which states: § shall entitled to a reason- following participants as costs of the part able counsel fee taxable matter: Any participant who awarded counsel fees as a another against participant dilatory,
sanction obdu- during rate or conduct of a mat- pendency vexatious ter____ counsel
Appellee sought following fees for the reasons: *10 7. Plaintiffs counsel and therefore that alleges believes Judge Order Court dismissed the Standish’s [which preliminary objections] second set of is the law case, any that it for other inappropriate judge Judge Order, or overrule reconsider Standish’s and that (a) counsel acted inpropriety Defendant’s has with [sic] misrepresenting pleading the nature of he intended to requested file when he an extension after his answer was (b) in untimely attempting and this already schedule Judge Standish, matter Narick rather than Judge before (c) misrepresenting past determinations this Court.
“ANSWER TO MOTION FOR RECONSIDERATION REQUEST AND FOR COUNSEL FEES”1 # Allegation Record at No. 7.1 The order which was entered the trial court on Janu- 24, 1986, ary states:
ORDER OF COURT
NOW, to-wit,
AND
day
January,
24th
after consideration
of the Defendant’s Motion for Reconsideration and Plaintiff’s Answer and
Motion
response thereto,
for
ADJUDGED,
CounselFees filed in
hereby
it is
ORDERED and DECREED that the Defendant’s Motion for Reconsidera-
tion is denied. It is further ORDERED that the Defendant’s counsel shall
pay
(10)
days
Plaintiff’s counsel within ten
of this order the sum of Two
($200.00)
Hundred
attorneys
Dollars as
fees awarded under 42 Pa.C.
2503(7).
§
_S/
Narick_J.
J
10:00 am.
(Interlineation
Record at #19.2
original)
1. Both
appellant
indicate in their briefs that
was absent at the
appellant
present
scheduled time when
was to
his motion
recon-
3;
Instead,
Appellant
Appellee
sideration. Brief for
at Brief for
at 3.
appellee presented appellant’s motion.
initially
2. The record indicates that
Narick
issued two orders in
one,
September,
this case. The first
dated
denied
objections
preliminary
appellee
and ordered
file an
amended com-
plaint.
appellant
pre-
Narick also
stated
could renew its
liminary
at that time. The other order dated October
granted appellee
complaint.
leave to file his Because the trial court failed to vacate or otherwise
its
nullify
original
denying appellant’s
order
objections, appellant was not entitled to
additional time
any
beyond
3rd in which to file “an
February
Answer
other-
plead
Complaint.’?
wise
to Plaintiff’s
Also, we note that
judgment was
taken immediately
after
in default.
appellee
waited fifteen
Horan v.
entering
judgment. Compare
before
Associates, Inc.,
R.S. Cook &
(1981) (no snap judgment
A.2d 278
where judgment was
twenty-seven days
entered
after the extension expired) with
Queen
Co.,
City
Supply
Electrical
Co. v. Soltis Electric
*11
Mellon,
354,
day); Fox v.
(1980) (one
491 Pa.
With contention that judgment should be it acted opened promptly because and had a complete reasonable excuse and a defense to the appellee’s claim, applied following guidelines: we have the
“A petition open a is addressed to a court’s judgment equitable powers, and the exercise of those powers will not on appeal be disturbed the absence of an abuse of Hutchison, discretion.” Hutchison v. 118, 123, 492 Pa. (1980). “Nevertheless, 503-04 before a may court properly open judgment party seeking (1) (2) such relief timely petition open; must file his ..., show a meritorious defense reasonably ex- the default plain which occasioned entry judg- ment.” Service Bureau v. Taylor, Meyer Co. & Associ- ates, 277 Pa.Super. Associates, Inc.,
Horan v.
R.S. Cook &
Pa.Super.
at
265,
Because has failed to set forth his petition open any or an for his explanation defenses answer, failure to file an the trial court did not abuse its discretion in denying appellant’s petition to open. Expío, Inc. Morgan, v. Johnson & A.2d 384 (1982).3
Order is affirmed.
BROSKY, J., a dissenting files opinion.
BROSKY, Judge, dissenting:
I respectfully must from holding. dissent the majority While I do not take issue with the conclusion that majority’s motion reconsideration should not as a be construed “pleading” for purposes of I Pa.R.C.P. nonetheless would hold that judgment of default should be stricken grounds. on other dissent, According judgment should be stricken because a jurisdictional proceedings defect occurred in the below which voided agreement plead. of counsel to file an answer or Under otherwise theory, judge may pass upon the dissent’s trial "a the decision of judge trial interlocutory another of the same court an matter." Dissenting Opinion at case, judge upon “pass another did not the decision Instead, judge”. Judge granted of another trial Id. appellee Narick opportunity complaint. to amend his com- After plaint filed, of preliminary and second set a decision by Judge Judge upon" “pass made Standish. Standish did not properly appellee opportunity whether Narick allowed Rather, complaint. upon amend his Standish ruled the second preliminary objections. set of prohibition against relitigating an judge issue another *12 jurisdiction designed prevent "rescinding coordinate the order Madden, 126, 120, colleague." Pa.Super. Commonwealth v. 342 492 420, (1985). judge A.2d 424 Because no order of another was rescind- overruled, ed jurisdictional theory or otherwise the of the dissent “quashed.” must be implies The dissent also that our decision in case this is contra- Inc., dictory Inns, Reifinger Holiday to that reached the in Court v. Pa.Super. (1983). However, Reifinger 315 A.2d 461 839 is distin- guishable from point. the instant case on one essential A fundamen- prerequisite application co-equal tal judges of the rule is that the co-equal Id., judge second have no new evidence to consider. 315 842; Pa.Superior Ct. at 461 A.2d Griffin, at v. Commonwealth 257 Pa.Super. Reifinger 760 Court thoroughly discussed the fact judge that the record before the second personal jurisdiction materially who considered the issue was not regard different with to that issue than the record before first the case, judge who considered it. In the complaint instant the amended set new original forth and different complaint. averments than the Reifinger inapposite. Thus defect case, jurisdictional are confronted with a we below, addressed which must be before proceedings the motion for recon- of the status of
any discussion sideration is warranted.1 by appellant filed preliminary
The initial set
before, and decided
complaint
argued
original
of Com-
Allegheny County
Narick of the
Court
by, Judge
12, 1985, appellee
By
September
mon Pleas.
order dated
complaint.
file an amended
by Judge
ordered
Narick to
was
filed, appellant, again,
was
complaint
After
alleging that the amended com-
preliminary objections,
filed
cause of action. On Decem-
still failed to set forth a
plaint
set of
6, 1985, argument upon
second
ber
of the same court.
by Judge
heard
Standish
objections was
argument
at that
time that
be sent
Appellant requested
overruled, and
Judge
request
Narick. That
back
the same
Judge
preliminary objections
Standish denied the
24,1986 hearing upon
January
It was not until
day.
ruled
upon
reconsideration
Narick
motion for
complaint.
of the amended
sufficiency
may
that a trial
Pennsylvania
judge
It is
settled
well
trial
judge
the decision of another
pass upon
matter. Commonwealth v.
interlocutory
same court on an
Madden,
(1985);
120, 126, 492 A.2d
Pa.Super.
Inc.,
Inns,
Holiday
Reifinger
147, 151-
(1983). Yet that is
what
precisely
842-43
Narick considered the suffi-
occurred in this case.
that the facts
complaint,
of the initial
and determined
ciency
against
not state a cause of action
set forth therein did
more definite
appellee
He ordered
file a
appellant.
claim,
him
granted
twenty
statement of
litiga-
neither ended the
complaint.
amend his
This order
court,
clearly
out of
but was
interlocu-
put appellee
tion nor
Co.,
Mutual Ins.
Donegal
See Freeze v.
Pa.
tory.
jurisdictional
Appellant
issue to be discussed
has not raised the
infra
points
appeal, despite
at various
in the
the fact that it was raised
Superior
authority
proceedings
Court has the
below.
*13
County Allegheny
sponte.
v.
jurisdiction
sua
address an issue of
Commonwealth,
360, 368-369,
402,
(1985).
A.2d
406
507 Pa.
490
5,
958,
n.
(1983). Moreover,
470 A.2d
960 n. 5
it
of the
became
“law
case” with
respect
sufficiency
complaint. See Marmara
of the facts as
in the initial
pled
Rawle,
(1979).
v.
Pa.Super.
such,
empowered
Narick was
to evaluate the amend-
Judge
As
ed
if
complaint, and to determine
amendment had cured the
factual
present
deficiencies
the original complaint.2 By
refusing
argument
refer
on the
of the
sufficiency
Narick,
back to
complaint
Judge
Judge Standish
placed
position
himself
to conceivably overrule the “law
case”;
that
is to say,
might
he
have found cure
effectuated
superficial
basis of
amendment which
would have been deemed non-remedial by Judge Narick.3
This is
precisely
type
scenario that
“co-equal
Reifinger,
judges”
designed
rule was
to prevent.
See
su-
such,
As
pra.4
Judge Standish’s order of December 6 was
Judge
It should
argument
be noted that
Narick was available to hear
upon
January.
general
the motion for reconsideration in
The
rule
co-equal judges
pass upon
that
should not
each other’s
in the
decisions
case,
is,
unavailability exception;
same
has an
that
where the initial
judge
order,
longer
is no
available to reconsider his or her
another
occasion,
co-equal judge may, on
upon
hear and rule
an earlier order
colleague.
issued
exception
is limited to select
situations, such as
unavailability
judge
irremediable
of the initial
death, recusal, retirement,
through
transfer, or other causes. See
Yoder,
Reifinger, supra;
Sherman v.
59 Pa.Cmwlth.
void a court takes action beyond “When (its jurisdiction), on it its action is a power by conferred law waived ...” Dover v. to it cannot nullity, objection Philadelphia Housing Authority, decision, is, Reifinger by Judge Rowley panel, authored of this The however, supportive position Reifing- of the taken in this dissent. In er, objections challenging jurisdiction personam in Judge complaint, by filed to the and denied Rosenwald of the Phila- Later, delphia summary Court of Common Pleas. a motion for again challenging personam jurisdiction, judgment, came before court, Judge granted. Chalfin of the same and was analysis question, Judge propriety In his of this i.e. Chalfin’s ruling, Rowley finding does not confine his of reversible error overruling previous by Judge Chalfin’s of the order Rosen- Rather, "(W)e clearly he states that hold that it was error for wald. Judge Appellee Savage's to consider Wilson & Chalfin motion for Reifinger, summary judgment.” supra, p. (Emphasis 461 A.2d at Rowley’sholding supplied). Judge premised upon a common sense interpretation "co-equal judges” judge of the rule. If one is not empowered colleague's holding respect particu- to overrule a with to a issue, pointless permit judge it is to reconsider his col- lar league’s holding, be limited when his discretion would to a mere "rubber-stamp” approval previous of the decision. In the words of should, Judge Rowley, party who desires reconsideration where permit, "prepare circumstances a motion for reconsideration and judge it to the same who had decided the issue in the first submit Reifinger, supra, pp. instance." at 842-43. majority attempts distinguish Reifinger The on the basis that the co-equal judge Reifinger second had no new evidence to consider. complaint majority the amended in the instant The contends that fact, and, such, presented matter contained new averments of as "new Standish, by Judge thereby rendering evidence” to be considered "co-equal judges” majority inapposite. rule is correct in its “co-equal judges” apply rule does not when the assertion that the judge the second contains new evidence. record before evidence, pleadings permitted are not nor are to contain averments evidentiary allegations pleading merely material. The in a set forth material facts so as to frame the issues which will be tried. See 1019; 1019:1, 1019(a):l, see 2d § § Pa.R.C.P. also Goodrich-Amram § 1019(a):ll. Reifinger, judge upon the second was not called § pleading, summary judgment. an amended but a motion for A review motion for judgment pleading, attempt by summary but is not a an closed, judgment party, pleadings are to have entered in its after Furthermore, 1035(a). summary judg- a motion for favor. Pa.R.C.P. nature, evidentiary permitted to include material of an such ment deposition testimony, discovery requests, answers to Amram 2d and affidavits. as Hence,
Id.; Reifinger § see also Goodrich 1035:1. initially judge presented had to determine if the second court concluded, so Having it is appropriate to reexamine the agreement made counsel to extend the time for the appellant’s responsive pleading; it must be determined what if impact, any, the void of the status December upon order had capacity agree they as did.
Agreements between counsel are intended to be legally
binding contracts. See Hahnemann Medical College and
Hospital
Philadelphia
Hubbard,
267 Pa.Super.
(1979). However,
With respect agreement, to the instant it would appear the usual elements of a present: contract were a bargained-for exchange promises, of supported valid by Restatement, Second, consideration.5 1, 2, 71, Contracts §§ 75. for an agreement of this nature to en- be forceable, the promises exchanged impose must legal some of duty performance upon parties, the for which a remedy exists in the event of a breach. the Where law neither recognizes a nor duty provides breach, a remedy the agreement Restatement, generally Second, void. Con- tracts Comment a. A void contract is of legal no § whatsoever, effect and may ignored be by either party at any through with summary new evidence judgment. motion for Therefore, majority’s attempt distinguish Reifinger is flawed. infra, Because of the agreement conclusion to be reached that the initio, may argued was void ab it be that there was also no considera- support parties’ tion to promises. promise mutual A to forbear given exchange promise perform legal for a duty supported a by valid possess good consideration where the a faith belief in they the action or permanently surrendering, defense are tempo- or rarily forbearing asserting. from agree- This is true even where their ultimately ment is determined to be invalid. The fact that a rule of unenforceable, promise law renders a voidable or does not mean that promise Restatement, Second, was not valid consideration. Con- 73; 74, comments, a, b, d; 75; tracts §§ Here, appellee agreed temporarily taking forbear from a default judgment, right while prior waived its to further notice taking responsive pleading default if by was not filed Febru- such, ary 1986. As the conclusion to be reached does not infra validity affect supporting agreement. consideration this will. See Yannuzzi v. Commonwealth State Horse Racing Commission, Pa.Cmwlth. (1978); Black’s (4th 1968). Law Dictionary ed. This is in contract, contrast to a voidable where party who is not legally perform, bound to selects perform anyway, terminates his right agreement. to avoid the Restatement, Second, b, Contracts Comments e. The crucial distinc- § tion is agreement that a void cannot be cured an act of one or parties, both as the defect in the writing is the parties. Yannuzzi, beyond the control of supra; Black’s Dictionary. Law
Applying distinction, this void-voidable I would hold the agreement to be void. The agreement premised upon the ability Standish’s order to compel an answer or responsive pleading, from appellant.6 However, void, Standish’s order was and could compel nothing. It legal was of no An effect. or responsive answer pleading was not due from appellant until Judge Ñarick upon ruled the objections to the Furthermore, amended complaint. defect could not cured by either of the parties; neither, silence, consent, resignation nor can confer authority jurisdiction over a cause of action where it does not exist. *16 VanBuskirk, Commonwealth v. Pa.Super. 148, 149, n. Estate, 1, 621, In re Pozzuolo’s (1982); 449 A.2d 622 n. 433 Pa. such, 249 A.2d As I would agreement hold the void, of counsel here as opposed to merely Appellant voidable. had twenty from denial of its motion for reconsideration to file responsive pleading. At the end of that 20 day period, appellant was entitled, then, to a formal notice of appellee’s intent to take 237.1(a). default. Pa.R.C.P. notice, the absence of such premise 6. January While this is not stated in the 1986 letter confirming agreement, permitted "imply” courts are a term logical circumstances, agreed which is a deduction from terms and appear would assumption, a common tacit supplied when the term appear would rights essential to a determination of the and duties of Restatement, Second, parties. Contracts § Comment c. Clearly, appear logical agreement it would to assume that this would being never have come into had the known that the December nullity. 6 order was a judgment against appellant of default entry snap judgment. snap judgments disfavored, Since are highly Chernitsky, Nevils v. (1976), below, I judgment would strike the
permit appellant to file an only.7 answer
Barbra Pennsylvania, Appellant, COMMONWEALTH of Barbra HAWTHORNE Barbara Hawthorne. a/k/a
Superior Pennsylvania. Court of
Submitted June May
Filed here, agreement 7. There is a further issue as to whether the because parties’ disagreement concerning the status of a motion for recon- sideration, would be for lack unenforceable of mutual assent to the raised, same terms. this issue has not been and is waived. previous upon principles discussion various of contract law is, solely jurisdictional related issue: that did the lack of authority prevent being for the December 6 order a contract from Any *17 formed? further discussion as to the term “motion for reconsid- eration” in inappropriate. majority contractual terms would be has limited its procedural discussion to the status of such motions for purposes. majority’s I believe the decision to confine itself thus was entirely correct.