Appeal, No. 42, Oct. T., 1961, from order of Municipal Court of Philadelphia County, April T., 1959, No. 3871, in case of Charles J. Webb Sons Co., Inc. v. K. Stanley Webber. Order affirmed.
P. Breen, with him Dolnick & Gardner, for appellant.
Albert L. Bricklin, with him Bennett & Bricklin, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 194 Pa. Super. Page 615]
The Order of the Municipal Court of Philadelphia County is affirmed on the opinion of Judge FRANCIS F. BURCH for the court below, reported at 23 Pa. D. & C.2d 568.
I would reverse the order of the lower court opening the judgment.
[ 194 Pa. Super. Page 616]
DISSENTING OPINION BY MONTGOMERY, J.:
I respectfully dissent in this matter. The majority of this Court in affirming the lower court and adopting its opinion assigns as the reason for opening plaintiff's judgment against defendant that defendant's counsel was chargeable with "serious neglect" of his duties to defendant. I fail to find evidence of such serious neglect. On the contrary, the defendant neglected to take the simplest precautions to protect his rights and is the one principally responsible for his predicament.
After having an accident on January 16, 1957, defendant failed to report it to his insurance carrier until after the period allowed by the insurance contract had expired. When the company refused to represent him for that reason and told him to secure private counsel and, at his request, suggested Roger Soens, Esq., he went to see Mr. Soens with a letter from plaintiff's attorney threatening suit.
The depositions taken by plaintiff indicate that Mr. Soens suggested that the defendant settle the claim or, in the alternative, retain a lawyer, pay a fee, and be properly represented. Finally, when defendant said he had no money to settle and indicated no desire to hire counsel, Mr. Soens said that he knew the other party and would try ...