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BRITTON v. CONTINENTAL MINING AND SMELTING CORPORATION (11/20/50)

November 20, 1950

BRITTON, APPELLANT
v.
CONTINENTAL MINING AND SMELTING CORPORATION



Appeal, No. 115, March T., 1950, from order of Court of Common Pleas of Allegheny County, July T., 1945, No, 1348, in case of Paul L. Britton v. Continental Mining and Smelting Corporation. Order, as modified, affirmed.

COUNSEL

Herbert R. Carroll, with him Stuart A. Culbertson, for appellant.

James A. Wright, with him Morris M. Berger and Mauric Parker, for appellee.

Before Drew, C.j. Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 366 Pa. Page 83]

OPINION BY MR. JUSTICE LADNER

This is an appeal from an order of the Court of Common Pleas of Allegheny County which made absolute defendant's rule to open judgment and permitted defendant to file an answer or affidavit of defense of the condition that defendant did not assert a counterclaim against the plaintiff. The suit arose out of the lease of a power shovel to the defendant Continental Mining and Smelting Corporation on August 24, 1943. Plaintiff claimed a default in the agreement and brought suit on May 4, 1945. The Sheriff of Dauphin County served the defendant on May 24, 1945, by serving the Secretary of the Commonwealth after being deputized by the Sheriff of Allegheny

[ 366 Pa. Page 84]

County. On December 17, 1945, no appearance or affidavit of defense having been filed a default judgment was entered by the plaintiff in the amount of $4,588.50.

In May, 1948, the judgment was sent to Connecticut to enforce payment. Defendant then learned about the judgment and on September 7, 1948, filed the petition to open judgment. An answer to his petition was filed, depositions were taken and the court made the rule absolute.

The lower court found that defendant did not have any notice of the suit because when it was instituted defendant had ceased doing business in Pennsylvania and had moved from its offices in the Grant Building, Pittsburgh. The lower court also found that about January, 1945, Mr. Maloney, then attorney for the plaintiff, orally advised the attorney for the defendant that he would let him know if a suit was going to be instituted against the defendant. No such notice was given. Defendant's counsel did not allege in his petition the facts of his defense but at the oral argument submitted an affidavit of defense.

In Quaker City C. & C. Co. v. Warnock, 347 Pa. 186, 32 A.2d 5(1943) at p. 190 the present Chief Justice said, "Petitions to open judgments by default are addressed to the trial court's sound discretion and are essentially equitable proceedings ruled by equitable principles: Horn v. Witherspoon, 327 Pa. 295; relief will be given where such a petition is promptly filed, the default reasonably explained or excused and a defense shown to exist upon the merits: Pinsky v. Master, 343 Pa. 451, 452; Fuel City Mfg. Co. v. Waynesburg P.C., 268 Pa. 441."

It is also well settled that an order making absolute a rule to open a judgment entered by default and to let defendant into a defense will be reversed on appeal only ...


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