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JOST v. PHOENIXVILLE AREA SCHOOL DISTRICT (10/28/75)

decided: October 28, 1975.

JOST, APPELLANT,
v.
PHOENIXVILLE AREA SCHOOL DISTRICT



Appeal from order of Court of Common Pleas of Chester County, June T., 1972, No. 129, in case of Charles H. Jost v. Phoenixville Area School District.

COUNSEL

Robert W. Barton, with him John D. Killian, and Killian & Gephart, for appellant.

Sydney H. Weiss, with him Ronald J. Examitas, and Weiss, Freeman & Goldberg, for appellee.

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

Author: Spaeth

[ 237 Pa. Super. Page 155]

This appeal is from an order opening a default judgment.

Appellant instituted a suit in assumpsit by filing a praecipe for writ of summons on June 21, 1972; the complaint was filed on October 10, 1972. The next entry on the docket is February 13, 1973, when the default judgment was entered. The petition to open was filed on March 20, 1973. The petition alleged that the delay in answering the complaint had been caused by the efforts of appellee's solicitor to obtain other counsel to represent appellee for this one case, that these efforts were frustrated by this other counsel's busy schedule, and that appellant's counsel had been made aware of this situation and had led the solicitor to believe that no judgment would be entered without explicit notice, which was never given. The petition did not plead a meritorious defense. On April 6, 1973, an answer to the petition was filed. It denied that the solicitor had been misled, and alleged that deadlines had been set and extended several times and that appellee had no right to assume that appellant would not enter judgment when he did.

The factual context of the petition and answer may be gathered from the deposition of appellant's local counsel as well as from several letters. On October 23, 1972, appellee's solicitor wrote appellant's local counsel, saying that he had received the complaint and was in the process of obtaining associate counsel for trial purposes, and requesting additional time to file an answer. Appellant's local counsel acknowledged this letter on October 27, 1972: "I have no objection to granting a reasonable extension of time and do so by this letter. Because I am serving as local counsel, I will contact forwarding counsel, although I am confident he will have no objection. Should I receive instructions to the contrary, I will, of course, contact you prior to taking any action." About a month later, on November 22, appellant's forwarding counsel wrote appellee's

[ 237 Pa. Super. Page 156]

    solicitor, inquiring about progress in answering the complaint, but still offering "reasonable extensions to accommodate [the solicitor's] calendar and schedule." Apparently no reply was made to this letter, for on December 12 a copy of it was sent, with a request for a reply. Appellant's local counsel sent a similar letter to appellee's solicitor on December 15. Then on December 20, appellant's forwarding counsel wrote the solicitor a letter in which he referred to the solicitor's recovery from an illness and stated, "I shall be expecting a responsive pleading . . . by January 10, 1973, if that date is satisfactory to you." When no answer was filed, appellant's local counsel wrote the solicitor on January 22, confirming a telephone conversation in which the solicitor promised an answer by January 26. In his deposition, appellant's local counsel testified that the solicitor had called him on January 28 asking for another extension, and that he had set the final date as February 2 or 6. This conversation was not confirmed in writing.

As has been mentioned, the default judgment was entered on February 13, and on that date appellant's local counsel wrote appellee's solicitor, informing him of the judgment. In his deposition, appellant's local counsel testified that the solicitor called him the next day to tell him that the answer was three-fourths complete. However, when the petition to open was filed, it did not contain an answer, even though it was not filed until March 20, which was five weeks after the judgment had been entered, and one week after appellant's local counsel had notified appellee's solicitor that he had filed a certificate of readiness to proceed to trial on damages.

On July 19, 1973, appellee filed a petition for leave to amend its petition to open the judgment. Appellee was now represented by new counsel, the solicitor having died in May. A stipulation of counsel to allow this amended ...


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