Appeal, No. 257, April T., 1961, from order of Court of Common Pleas of Washington County, Nov. T., 1959, No. 34, in case of Ruth B. Morgan et al. v. L. G. Krepps & Sons, Inc. et al. Order reversed.
Paul N. Barna, Jr., with him Barna & Barna, for appellants.
F. A. Conte, with him George B. Stegenga, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
This is an appeal from an order opening a judgment entered by default for want of an answer.
The action was commenced on November 6, 1959 by filing a complaint alleging improper performance by the defendants of a contract to build a house for the plaintiffs. The complaint was served on November 18, 1959. The alleged default was the construction of a footer of a thickness substantially less than that called for in the specifications, resulting in severe damage to the building. The complaint detailed the damage to the house, averred that the plaintiffs had expended $259.35 for labor, materials, tools and equipment used in making some of the repairs necessitated by the improper performance, and averred that other necessary repairs had not yet been made. Damages were claimed "in an amount not in excess of $2,000."
No answer was filed within twenty days after service and on December 10, 1959, plaintiffs caused judgment to be entered for want of an answer. The judgment was entered by the prothonotary in accordance with the plaintiffs' praecipe directing him to enter judgment "without prejudice to the Plaintiffs' right to proceed to have damages assessed at a trial ..."
On December 16, 1959, the defendants' attorney entered his appearance and filed preliminary objections alleging that the complaint fails "to state the exact sum requested in damages" and asking for an order requiring the plaintiffs to file a more specific complaint. No further action was taken by either party until November 16, 1960, when the plaintiffs filed a praecipe for reference to arbitrators.
On December 19, 1960, more than a month later and almost a month after three arbitrators had been appointed, the defendants' counsel filed a petition to open the judgment averring that it had been entered without his knowledge and without notice to him, although the plaintiffs' attorney knew of his representation of the defendants in prior cases; that he filed the preliminary objections without investigating the docket and without knowing that judgment had been entered; that he did not learn that a default judgment had been entered until "sometime later"; that at the time of the entry of judgment he was in the process of trying to get in touch with the defendants and was preparing an answer but had difficulty in doing so because of the absence of a son of one of the defendants who knew the circumstances surrounding the claim; that his clients "have a defense to the action"; that the preliminary objections filed are well founded and the complaint is inadequate as stated in the objections; and that this inadequacy complicates the giving of a satisfactory answer to the complaint.
The answer to the petition specifically denied knowledge by the plaintiffs' attorney that the defendants' attorney had represented them in prior cases and averred that he did not notify the plaintiffs' attorney that he represented the defendants until December 17, 1959 when a copy of the preliminary objections and the praecipe for his ...