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KILGALLEN v. KUTNA (09/19/73)

decided: September 19, 1973.

KILGALLEN
v.
KUTNA, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 257, in case of James Kilgallen v. John Kutna and Charles Jackson.

COUNSEL

Joseph R. Wenk, with him Jonathan M. Stein, and B. C. Michael Ihekuna, for appellant.

Robert A. Detweiler, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 226 Pa. Super. Page 324]

Appellant John Kutna appeals from the order of Judge Ned L. Hirsh of the Court of Common Pleas of Philadelphia, denying his motion to open default judgment taken against him by appellee James Kilgallen. He contends that the order was entered improperly, in derogation of his rights under Rule 209 of the Pennsylvania Rules of Civil Procedure.

[ 226 Pa. Super. Page 325]

On November 4, 1970, appellee Kilgallen instituted an action in trespass against appellant and an additional defendant to recover for damages sustained in a 1970 motor vehicle collision involving three automobiles.*fn1 Appellant failed to file an answer to appellee's complaint, and judgment by default was entered against him on January 12, 1972. Damages were assessed in the amount of $599.99, and appellant was notified of this in March of 1972.*fn2

In January of 1973, after seeking the advice of counsel for the first time in this matter,*fn3 appellant petitioned the court for a rule to show cause why the judgment should not be opened and a defense permitted to be entered. The original of that petition was sent to appellee's attorney on January 9, with the effective filing of the petition taking place on January 22, pursuant to local rules. In his petition to open judgment, appellant explained his failure to respond to appellee's original complaint and to subsequent correspondence in this matter. He alleged that soon after being served with the complaint, he telephoned counsel for appellee and told him that he would be unable to pay any judgment against him because he was unemployed and in poor health. He further alleged that counsel told him, after hearing this, to "forget the whole thing". Relying upon this assurance, appellant, who claimed that his formal education ended in the sixth grade and that he was unfamiliar with legal procedures, did not respond

[ 226 Pa. Super. Page 326]

    to the complaint or to any other correspondence he received in this case. Appellant's petition to open judgment also asserted a factual account of the motor vehicle collision which contradicted that of the appellee in the original complaint and which appellant asserts would constitute a meritorious defense.*fn4

Appellee filed an answer to this petition on January 18, 1973, denying the factual allegations on the merits and denying that any telephone assurance had been made to appellant by counsel for appellee. Seven days later on January 25, 1973, the court below entered its order denying the petition to open on consideration of the petition and answer. In its opinion, the ...


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