223 Pa. Super. 143 | Pa. Super. Ct. | 1972
Opinion by
Appellants contend that the lower court abused its discretion in refusing to open a default judgment entered against them in a trespass action instituted by appellees. The suit arose out of a collision which occurred on March 23, 1970 involving a tractor trailer owned by appellant Cross Transportation Co. and driven by appellant Brooks and an automobile owned and operated by appellee Spilove.
Suit was instituted on October 6,1970 by complaint served upon appellants. Counsel for appellants’ insurance carrier entered an appearance for appellants on November 11. On November 13, plaintiff’s interrogatories were served upon appellants with a demand for answers within 20 days in accordance with Buie 4006, Pa. Buie of .Civil Procedure. Appellants failed to comply with the demand and answers were never filed. On January 14, March 20, and April 2, 1971 letters were sent by appellee’s counsel to appellant’s counsel requesting that answers be filed promptly. On April 18, another letter was sent in which counsel stated his intention to move for sanctions should answers not be forthcoming.
On September 18, appellants filed a petition to open the judgment which was subsequently denied. The denial was vacated in order to allow appellant to take depositions in support of the petition. The depositions were considered by Judge Hirsh and his original denial was reinstated on May 24, 1972. This appeal followed.
Appellant contends that all three requirements for the opening of the judgment were met, and that, therefore, the lower court abused its discretion in denying the petition to open. The lower court was of the opinion that appellant did not satisfy these requirements and refused to open the judgment.
It is axiomatic that a petition to open a default judgment is a matter of judicial discretion, an appeal to the court’s equitable powers, and is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown;
The lower court found that appellant failed to satisfactorily excuse its failure to answer the interrogatories,
Appellant argues that an adequate excuse for its failure to answer is presented in this case because two files were opened for this suit in the insurance carrier’s law department, both of which were mislaid, thus preventing counsel from being aware of the progress of the action.
The lower court found this excuse to be unsatisfactory, and that finding is adequately supported by the facts of this case. Appellant had over seven months to answer, during which repeated requests were made for answers.
Moreover, subsequent to appellee’s filing of interrogatories, appellant had served two separate sets of interrogatories upon appellees and received answer thereto. This indicates, with certainty, that appellant’s counsel was fully aware of the fact that the suit was progressing toward trial.
While it is true that a mistake or inadvertence of counsel will often justify the opening of a default judgment entered against a defendant [Stephens v. Bartholomew, 422 Pa. 311, 220 A. 2d 617 (1966); Clearfield Cheese Co., Inc. v. United Stone and Allied Products Workers of America, 378 Pa. 144, 106 A. 2d 612 (1954) ], a reasonable excuse for the default must be offered. Pinsky v. Master, 343 Pa. 451, 23 A. 2d 727 (1942); Weiner v. Cassin Motors, Inc., 174 Pa. Superior Ct. 235, 101 A. 2d 431 (1953); Colacioppo v. Holcombe, 166 Pa. Superior Ct. 186, 70 A. 2d 452 (1950). In the circumstances of this case, appellants’ failure to answer was not, as the lower court found, sufficiently excused or explained by appellants’ self-serving protestations about clerical difficulties, given the numerous opportunities appellants had to answer.
The order of the lower court is, therefore, affirmed.
Appellee has filed a demand in a major case petition for $150,-000. in damages. Appellant contends that such a large demand compels the opening of the default judgment, citing Hutton v. Fisher, 359 F. 2d 913 (3d Cir. 1966). However, in Hutton, there was a verdict and an assessment of $195,000. in damages. In the instant case, there is only a demand for damages so that the assessment of actual damages remains to be tried. Moreover, in Button, the equities were clearly on the side of the petitioning party in that the default judgment was entered after an agreement was made between counsel extending the time for an answer to the complaint. Thus, the basis of the decision to open the judgment was that the petitioning party had acted in justifiable reliance upon the agreement
During this period, numerous phone calls were made by appellee’s counsel to appellant’s counsel requesting answers. On at
In a trespass action, a meritorious defense need not in all cases be shown to exist when the equities are otherwise clear, Kraynick v. Hertz, supra. Appellant’s defense was based upon contribu
Entry of a default judgment is a proper course of action when a party unreasonably fails to answer interrogatories, thus preventing the cause of action from going forward. Rule 4019(c) (3), Pa. R. C. P. (1966); Isenberger v. Schumann, 415 Pa. 217, 203 A. 2d 136 (1964).
In his deposition, counsel for appellants read the following from a memorandum prepared by him in connection with the peti