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FOX v. MELLON (04/28/70)

decided: April 28, 1970.

FOX
v.
MELLON, APPELLANT



Appeal from order of Court of Common Pleas of Chester County, July T., 1968, No. 232, in case of Betty A. Fox v. James A. Mellon.

COUNSEL

C. Richard Morton, with him Griffith, Morton & Buckely, for appellant.

Albert B. Wrigley, with him Kranzley, Wrigley, Yergey and Daylor, for appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissent.

Author: Cohen

[ 438 Pa. Page 365]

This is an appeal from the refusal of the court below to open a default judgment which was taken at 9:08 a.m. on the twenty-first day following service of the complaint.

This action arose out of an automobile accident which occurred on May 15, 1964. On August 9, 1968, over four years later, appellee commenced her suit in trespass by filing a Praecipe for a Writ of Summons which was served on August 15. Appellant turned the writ over to his insurance agent who on August 19 forwarded it to the regional claims office of appellant's liability insurance carrier.

[ 438 Pa. Page 366]

On October 3, 1968 appellee filed a complaint which was served on appellants' wife on October 4. Appellant had never been involved in a lawsuit before and did not notice the endorsement on the complaint to plead within twenty days. After trying unsuccessfully to talk to an attorney friend, he mailed the complaint to his broker who received it on October 14. The broker immediately mailed it to the liability carrier's claims office which received it on October 15. The manager of the claims office assumed that he had most of the twenty days left in which to respond because the broker's covering letter stated that he had received the complaint on October 14 and that it had been served shortly before that time.

During the following ten days the manager was busy processing approximately 1000 claims files in his office and attending court for several pending cases. On Friday, October 25 at about 4:10 p.m. (the prothonotary's office had closed at 4:00) the claims manager had requested C. Richard Morton to enter an appearance for appellant. On Monday, October 28 when counsel attempted to enter an appearance, he discovered that appellee had taken a default judgment at 9:08 a.m. on October 25, the twenty-first day after service.

On November 4 appellant filed a petition to open the judgment which the lower court denied because it felt appellant had not established sufficient equitable consideration.

Our cases are clear that a petition to open a judgment is an appeal to the court's discretion, Richmond v. A. F. of L. Medical Service Plan of Philadelphia, 415 Pa. 561, 204 A.2d 271 (1964); Murphy v. Smith, 415 Pa. 512, 204 A.2d 275 (1964); Scott v. McEwing, 337 Pa. 273, 10 A.2d 436 (1940), and that discretion may be exercised to order a judgment to be opened when three ...


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