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KUNTZ v. LANBAR HOTEL CO. (01/03/55)

January 3, 1955

KUNTZ, APPELLANT,
v.
LANBAR HOTEL CO., INC.



Appeals, Nos. 192 and 193, Jan. T., 1954, from order of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1953, No. 6287, in case of Dorothy Kuntz et vir v. Lanbar Hotel Co., Inc. Order affirmed.

COUNSEL

Daniel F. Metzman, for appellants.

John W. Fawcett, III, with him Richard E. McDevitt and Montgomery, McCracken, Walker and Rhoads, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 380 Pa. Page 91]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeals are from an order of a court of common pleas opening a default judgment.

Plaintiffs, husband and wife, instituted an action in trespass against defendant, a hotel company, alleging that both of them were injured through the negligence of defendant. It is averred that the steps on which plaintiffs fell were not maintained by defendant in a safe condition. Damages were claimed aggregating $30,000.00.

The accident occurred November 1, 1953. Suit was commenced February 5, 1954 and the complaint served on defendant the same day. Plaintiffs entered judgment against defendant from want of an appearance, on March 9, 1954. On the following day, March 10, 1954, defendant's attorney filed an order for appearance, but learned that judgment had been entered by default. On March 11, 1954, defendant filed a petition and rule to show cause why the judgment should not be opened. Plaintiffs answered the petition, averring New Matter. This "New Matter" mentioned many instances where plaintiffs' counsel was said to have negotiated

[ 380 Pa. Page 92]

    with a representative of defendant's insurance carrier, not counsel for defendant. Plaintiffs entered the judgment after a ten-day extension of time had been granted to the insurance carrier to file an appearance. The rule to open was made absolute.

When a default judgment is opened the inquiry is whether or not the court abused its discretion. In Glass v. Farmers National Bank of Watsontown, Trustee, 364 Pa. 186, 70 A.2d 356, this Court, speaking through Mr. Justice JONES, said (p. 190): "The crucial question, then, is whether the action of the learned court below constituted an abuse of discretion. That an exercise of discretion, relieving from a judgment entered by default, is reviewable only for an abuse is so firmly established in the law as to require little citation of authority. In Scott v. McEwing, 337 Pa. 273, 274-275, 10 A.2d 436, we observed that 'The power of a court to grant relief from a judgment entered by default due to a mistake or oversight of counsel is one frequently exercised in the interest of justice, and we have repeatedly said that this Court will not interfere with the lower court's action unless it is clearly shown that its discretion has been abused: [citing cases].' Furthermore, the propriety of the relief is to be adjudged on the basis of equitable principles; such proceedings are equitable in nature and are to be ruled accordingly: see Horn v. Witherspoon, 327 Pa. 295, 296, 192 A. 654, and cases there cited. In the present instance, the learned court below found on substantial evidence, which it justifiably accepted as ...


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