No. 473 October Term, 1977, Appeal from Order of the Court of Common Pleas of Philadelphia County, March Term, 1976, No. 5300., Trial Div., Law.
Peter S. Kretzu, Philadelphia, for appellant.
Joel Feldscher, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., notes dissent.
[ 251 Pa. Super. Page 116]
Appellant contends that the lower court erred in granting appellee's petition to open a default judgment. We agree, and, therefore, reverse the order of the lower court.
[ 251 Pa. Super. Page 117]
On March 29, 1976, appellant filed a complaint in trespass against appellee in the Court of Common Pleas of Philadelphia County. The complaint alleged that on November 29, 1975, appellee operated a car in a negligent manner and consequently struck appellant, a pedestrian, as he crossed Girard Avenue in Philadelphia. On March 30, 1976, a sheriff made service of process upon one Mrs. Parill at 1500 Locust Street in Philadelphia. The return of service indicated that Mrs. Parill was an "agent or person for the time being in charge of defendant's office or usual place of business." Pa.R.Civ.P. 1009(b)(2)(iii); 42 Pa.C.S. 1009(b)(2)(iii). Appellee did not file an answer to this complaint. On April 23, 1976, appellant filed a praecipe for entry of a default judgment, and the prothonotary entered judgment. Pa.R.Civ.P. 1037. On the same day, the prothonotary mailed notice of the entry of the default judgment to appellee at 1500 Locust Street. Pa.R.Civ.P. 236.
On August 24, 1976, appellee's attorney entered an appearance. On September 16, 1976,*fn1 appellee filed a petition to open the default judgment in the Philadelphia Court of Common Pleas. Therein, appellee made the following allegations.
[ 251 Pa. Super. Page 118]
While he had once resided in an apartment at 1500 Locust Street, shortly before the accident he moved to 4563 N. 17th Street in Philadelphia. When the accident happened, appellee showed appellant a copy of his driver's license which listed his address as 1500 Locust Street. However, appellee told appellant that he had moved and gave appellant his new address. Because he moved from his Locust Street apartment before the accident and lawsuit, appellee never received notice of the complaint. When he received notice of the default judgment, appellee immediately informed his insurance company which commenced an investigation and hired an attorney to petition to open the default judgment.
Appellant filed an answer to the petition which made the following assertions. After the November 29, 1975 accident, appellee told appellant that his address was 1500 Locust Street. Appellee did not mention that he had moved. On February 2, 1976, appellant's attorney sent a letter by certified mail to appellee at 1500 Locust Street, notifying appellee that the attorney represented appellant. On February 24, 1976, appellee signed for this letter and a receipt was returned to appellant's attorney. In May or June of 1976, appellee's insurance representative notified appellant's attorney that he knew of the default judgment. Appellant's answer also maintained that the deliberate failure of appellee's petition to specify a date when appellee first learned of the default judgment rendered the petition fatally defective.
On October 12, 1976, counsel for both parties deposed appellee. Appellee's deposition supported the factual allegations of his petition to open the default judgment. Appellee testified that he moved out of his Locust Street apartment shortly before the accident. When he did so, he notified the post office of his change in address. Nevertheless, he experienced delays and difficulties in receiving mail forwarded to his new address. Thus, he did not receive the February 2, 1976 letter of appellant's attorney until ...