Appeals from orders of Court of Common Pleas of Clearfield County, May T., 1973, Nos. 904 and 905, in cases of Highway Equipment Company v. Hamlin Coal Company, and Same v. Shawville Coal Company.
John M. Elliott, with him Gary R. Leadbetter, Joseph J. Lee, and Dilworth, Paxson, Kalish, Levy & Coleman, for appellants at Nos. 353 and 354.
Anthony S. Guido, for appellant at Nos. 394 and 395.
Anthony S. Guido, for appellee at Nos. 353 and 354.
John M. Elliott, with him Gary R. Leadbetter, Joseph J. Lee, and Dilworth, Paxson, Kalish, Levy & Coleman, for appellees at Nos. 394 and 395.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Concurring and Dissenting Opinion by Jacobs, J.
[ 230 Pa. Super. Page 312]
These appeals are from the order of the Court of Common Pleas, Civil Division, of Clearfield County granting a petition to open judgments entered by default in favor of Highway Equipment Company and against Hamlin Coal Company and Shawville Coal Company and on the refusal of the court below to set aside garnishments and attachments filed by Highway Equipment Company.
[ 230 Pa. Super. Page 313]
The Memorandum Opinion and Order of the court below sets forth both the factual background and reasons for the order and we cite it, in part, as follows: "The circumstances in the instant case are not totally unusual; but they arise really from failure to follow custom; and are such as to have given the Court concern by the way in which they occurred. The case arises out of a Petition to Open Judgment entered against the defendants by the plaintiff for failure to file responsive pleadings. After considerable disputes over a long period of time concerning the condition of equipment sold to the defendants by the plaintiff (which remain unresolved), plaintiff sued defendants and filed Complaint on September 18, 1973. It is admitted that plaintiff's attorney was in contact with defendants' attorney concerning the matter and although the latter had asked for further time to file responsive pleadings, he was notified by plaintiff's attorney that they refused to give further extension of time. However, defendants' attorney was not specifically told that judgment would be taken by default; but this was done on October 26, 1973, approximately 38 days after service of the Complaint on September 19, 1973. An attachment upon the bank accounts and an account owing by a creditor of defendant was issued on November 15, 1973; came to the attention of defendants on November 16, 1973, at which time they notified their counsel. On November 19, 1973, the Court entered an Order opening the default judgment, upon the understanding that counsel for plaintiff was not objecting to the same. Plaintiff's counsel approached the Court and declared that no approval for opening had ever been given, and that defendants had withdrawn their monies from their bank accounts. Again, upon his assertion, the Court vacated the order which opened the judgment; and the default judgment and attachments were reinstated. On November 30, 1973, a full hearing was held upon the petition
[ 230 Pa. Super. Page 314]
to open judgments, the delay having been occasioned in order to give counsel on both sides opportunity to appear without interference from other commitments.
"We are now satisfied that great injustice would result to the defendants if the judgments were permitted to stand. First, after hearing had, we are satisfied that no fraud upon the Court was intended; the record showing that the only sums which had been withdrawn from the accounts after the judgment was opened were for checks on matters handled prior to the default judgment. Next, the record shows that immediately upon institution of the suit, defendants had consulted with their attorney and had been attempting to put together all information necessary to contest the actions and to prosecute counterclaim against the plaintiff. The record shows, too, that there was a basis upon which they could defend and counterclaim. In addition, the custom in the County, although there is no rule requiring the same, has been to the effect that counsel would be advised before any default judgment would be actually entered, particularly where there had been prior dealings. In the instant case it is true that defendants' counsel had been told there would be no extension of time for filing responsive pleadings, but counsel's testimony was to the effect that he still did not feel a default judgment would be entered without advance notice thereof. The Court does not fully refer to all of the testimony, but it is satisfied that injustice would result to the corporate defendants in the same ...