Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1970, No. 3394, in case of James Zellman v. David Fickenscher and Walter Donachie and Thomas Lipsey and City of Philadelphia.
Gerald F. Tietz, with him Oshtry & Miller, for appellant.
S. Jay Sklar, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Levy Anderson, City Solicitor, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissenting opinion.
[ 220 Pa. Super. Page 138]
Dissenting Opinion by Hoffman, J.:
This is an appeal from the order of the lower court opening a default judgment.
On April 24, 1970, appellant filed a complaint in the lower court charging the appellees with tortious conduct. This complaint was not answered, and on May 15, 1970, a default judgment was entered for appellant.
[ 220 Pa. Super. Page 139]
The appellees were promptly advised of this action, and they requested in writing that appellant's counsel stipulate to the opening of the judgment. No further action was taken until June, 1970, when appellant's attorney in a telephone conversation with the attorney for the appellees stated that he would not stipulate to the opening of the default judgment. Still no action was taken by the appellees. Finally, in January, 1971, after appellant had filed for an assessment of damages ...