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LAWRENCE A. RUGGIERO AND GINA A. RUGGIERO v. HAROLD E. PHILLIPS (10/06/77)

decided: October 6, 1977.

LAWRENCE A. RUGGIERO AND GINA A. RUGGIERO, HIS WIFE
v.
HAROLD E. PHILLIPS, JR. AND KAY E. PHILLIPS, HIS WIFE, APPELLANTS



No. 1832 OCTOBER TERM, 1976, Appeal from the Order of the Court of Common Pleas, Civil Action, Equity Division, of Northampton County at No. 11 August Term, 1974

COUNSEL

William H. Agnew, Nazareth, for appellants.

Henry R. Newton, Easton, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, J., dissents.

Author: Van Der Voort

[ 250 Pa. Super. Page 350]

This is an appeal from an order denying and dismissing a petition to open a default judgment. The litigation was started by a complaint in equity seeking reformation of a deed by which appellees and Philip S. Ruggiero conveyed land to the appellants. Mr. Ruggiero, an attorney, represented all parties to the transaction. The deed was dated August 12, 1971, and the complaint was filed September 27, 1974.

For some three months prior to the filing of the complaint, Philip S. Ruggiero, representing the appellees, had

[ 250 Pa. Super. Page 351]

    sought with increasing insistence to persuade the appellants to consent to a reformation of the deed, the contention being that the appellees had conveyed more land than had been intended. In the late summer of 1974, appellants retained Attorney Ranald S. Barratta to represent them in the dispute and so advised Mr. Ruggiero. Several conversations took place between Attorneys Ruggiero and Barratta over the course of the next few weeks, but no progress was made in settling the dispute.

On September 17, 1974, Mr. Ruggiero advised Mr. Barratta by letter that he proposed to file a complaint in equity unless "your clients", the appellants, voluntarily executed a deed correcting the earlier conveyance. Mr. Barratta did not respond to this letter and on September 27, 1974, such a complaint was filed. Service of the complaint was made on the appellants on October 1, 1974, and on October 12 they turned the complaint over to Attorney Barratta who advised them that he would prepare appropriate papers to be signed within a few days. However, he neither entered his appearance in the case nor filed an answer on behalf of appellants by October 21, the return day.

On October 22, 1974, Attorney Ruggiero, acting on behalf of the appellees, entered judgment by default against appellants. He did not notify either Attorney Barratta or the appellants prior to taking this action. On October 31, 1974, Mr. Barratta, unaware that a default judgment had been entered, filed a praecipe with the Prothonotary entering his appearance on behalf of the appellants and, on the same day, mailed a letter to Mr. Ruggiero notifying him that Mr. Barratta's appearance had been entered and requesting "your kind indulgence in answering the complaint which I hope to have forwarded to you by Friday, November 8". Mr. Ruggiero replied under date of November 7 to the effect that a default judgment had been entered against the appellants on October 22, 1974. This was the first notice that either Mr. Barratta or the appellants had received that a default judgment had been entered.

[ 250 Pa. Super. Page 352]

Mr. Barratta contacted Mr. Ruggiero on several occasions with the request that Mr. Ruggiero consent to having the judgment reopened, expressing regret and responsibility for having deprived his clients of their day in court. Mr. Ruggiero neither accepted nor rejected the request but said he would talk it over with his clients, leaving Mr. Barratta under the impression that the judgment would be reopened, although ...


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