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RELIANCE INSURANCE COMPANIES v. FESTA ET AL. (03/31/75)

decided: March 31, 1975.

RELIANCE INSURANCE COMPANIES, APPELLANT,
v.
FESTA ET AL.



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 5029, in case of Reliance Insurance Companies v. Pietro Festa, a/k/a Peter Festa, and Joseph E. Gembala, Jr., and Keystone Insurance Company.

COUNSEL

Miles Warner, with him Warner & Huntington, for appellant.

Wendell H. Livingston, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Jacobs, J. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 233 Pa. Super. Page 62]

This is an appeal by Reliance Insurance Cos. [hereinafter Reliance] from an order granting a petition by Keystone Insurance Co. [hereinafter Keystone] to open a default judgment. The issues presented for our determination

[ 233 Pa. Super. Page 63]

    are whether the lower court abused its discretion in opening the judgment and whether the amount of the judgment was properly calculated.

In 1966 Pietro Festa was involved in an automobile accident with another driver, not a party to this action. Reliance, which was Festa's insurance carrier, paid Festa $1,819.51 under the collision coverage of his insurance contract. Under the contract Reliance became subrogated to Festa's right to recover this sum from any other person. In 1971, pursuant to an arbitration award, Keystone, which insured the other driver, paid Festa and Gembala, his attorney, $3,621.55 which included a property damage claim of $1,842.00.

Reliance began this assumpsit action to recover its subrogation interest from Festa and Gembala and against Keystone on the theory that it paid money to the other defendants when it knew or should have known of Reliance's subrogation interest.

Keystone was properly served on November 15, 1972. Over six months later, on July 24, 1973, Reliance took a default judgment against Keystone for want of an answer. Reliance issued execution and attached Keystone's bank account; and on December 7, 1973, more than four months after the judgment was entered, Keystone filed a "Petition to Re-Open Default Judgment . . . ." The petition was granted by the lower court on January 25, 1974, and this appeal by Reliance challenging the propriety of that order followed.

It is well settled that "[a] petition to open a default judgment should not be granted unless (1) the petition has been promptly filed, (2) the default can be reasonably excused and (3) a meritorious defense can be shown." Ruczynski v. Jesray Constr. Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974). See McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. ...


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