Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1964, No. 490, in case of Sidney Kramer, Arlene Kramer, his wife, and Stuart Cutler v. City of Philadelphia.
Edwin E. Naythons, with him Freedman, Borowsky and Lorry, for appellants.
Matthew W. Bullock, Jr., Second Deputy City Solicitor, with him Alfeo Libetti and Jerome R. Richter, Assistant City Solicitors, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the consideration or decision of this case.
On December 11, 1964, appellants filed an action of trespass against appellee, the City of Philadelphia. Appellee pleaded to the complaint, and joined Sidney Kramer as an additional defendant. There was an exchange of written interrogatories and, on February 9, 1965, appellants filed a motion for the production of certain documents in the hands of appellee.
The parties then entered into a stipulation requiring appellee's counsel to produce and authorize the inspection of all of the documents listed in the motion to produce, within sixty days of the stipulation. The stipulation further provided: "Upon failure thereof, judgment for the plaintiff with assessment of damages
at trial." The stipulation was dated March 16, 1965, was signed by the judge of the Court of Common Pleas and entered of record.
On May 21, 1965, some 5 days after the time for production of documents had elapsed, counsel for appellants wrote to counsel for appellee as follows: "You may recall that on 3/16/65 an Order was entered in the above matter which, to date, has not been complied with. This letter will therefore advise you that we are allowing 7 additional days for compliance. Failing to hear from you, we shall take the necessary actions." The 7 additional days granted in the letter of May 21 passed without any action by the City. Counsel for appellants permitted some 5 more days to pass before he caused a default judgment to be entered against the City on June 2, 1965, for failure to comply with the order of court of March 16, 1965.
Five more days elapsed after the entry of the default judgment, and on June 7, 1965, counsel for the City forwarded to counsel for appellants two of the documents which were requested in the motion to produce. In a covering letter, counsel for the City indicated that certain other records requested in the motion to produce were not available. The City took no action to open the default judgment which had been entered against it on June 2nd.
On November 11, 1965, counsel for appellants again wrote to counsel for the City as follows: "As you may be aware, there is a default judgment against the city in the above captioned matter for failure to comply with the Order of the Court.
"According to the existing regulations, this letter will constitute sufficient notice of our intention to move for assessment of damages in Room 380, City Hall, on Friday, December 17, 1965, at 10:00 o'clock A.M. We ...