Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at 3511 July Term, 1973, in Trespass.
Louis B. Loughren, Pittsburgh, for appellants.
Bruce R. Martin and Arthur L. Bloom, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files a concurring opinion.
[ 248 Pa. Super. Page 33]
Appellants contend that the lower court erred in striking a July 19, 1974 default judgment entered against appellee-Moody and a March 12, 1976 default judgment entered against appellees Wudkwych and M & W Construction Company. We agree as to appellee-Moody, but hold that the lower court properly struck the judgment entered against appellees Wudkwych and M & W Construction Company.
[ 248 Pa. Super. Page 34]
Appellants filed a complaint in trespass on June 21, 1973.*fn1 After several unsuccessful attempts at service, the Sheriff of Washington County served appellee-Moody on April 24, 1974. When Moody failed to enter an appearance or to file an answer, the prothonotary entered a default judgment against him on July 19, 1974. At the same time, appellants were attempting to serve appellee Wudkwych. The docket reveals that Wudkwych was served on July 18, 1974, by service on the Secretary of the Commonwealth. On August 2, 1974, Bruce Martin, Esquire, filed a "Motion to Strike or to Open Judgment and Motion to Stay Proceedings" in which he recited the facts surrounding the entry of the default against Moody and then stated:
"6. The file of the insurer, Motorists Mutual Insurance Company, contains nothing indicative of notice that Robert Moody was served with anything on April 24, 1974, or at anytime prior to July 30, 1974, although, as previously indicated, counsel learned, on July 31, 1974, that a default judgment had been entered against Robert Moody based on purported service on Robert Moddy on April 24, 1974.
"7. Under the circumstances, counsel is placed in a dilemma which may involve a conflict of interest, and which certainly requires time to resolve, in that:
"(a) If Robert Moody was served with Notice of Suit and Complaint and failed from April 24, 1974, to July 19, 1974, to inform his insurance carrier, at which time a default judgment was entered against him, he is in violation of the provisions of his insurance policy and has forfeited his right to a defense thereunder.
"(b) If there is some innocent explanation for Robert Moody's apparent breach of his obligation to his insurance carrier, he is entitled to an opportunity ...