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JOHN R. VAN HORN v. J. PAUL ALPER (04/13/78)

decided: April 13, 1978.

JOHN R. VAN HORN, TRUSTEE OF RUSSELL A. VAN HORN, AND DAVID C. VAN HORN, TRUSTEE OF RUSSELL A. VAN HORN
v.
J. PAUL ALPER, APPELLANT



COUNSEL

John Rogers Carroll, Philadelphia, submitted a brief for appellant.

Richard P. Abraham, Philadelphia, for appellees.

Watkins, President Judge, and Hoffman, Cercone, Van der Voort and Spaeth, JJ. Jacobs, President Judge, Watkins, former President Judge, and Price, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 253 Pa. Super. Page 526]

This is an appeal from an order denying a petition to open or strike a default judgment.

Under date of January 28, 1975, Russell A. Van Horn (hereinafter, Van Horn) entered into a written contract with J. Paul Alper, appellant, to do certain repair and maintenance work on property known as 303 Levick Street in Philadelphia at a contract price of $1,100. It is contended on behalf of Van Horn that the work was done in an improper, unworkmanlike and unacceptable manner and that it has or

[ 253 Pa. Super. Page 527]

    will cost Van Horn $975 to correct these deficiencies. It is also claimed on behalf of Van Horn that he made a series of loans to the appellant aggregating $17,700 which were not repaid when due.

Van Horn has been represented in the ensuing litigation by two trustees of his property, the appellees herein. The petition to strike was based on the averment that the complaint did not sufficiently establish that they were the trustees of the property of Van Horn, a contention disallowed by the trial court on the basis of Pa.R.C.P. 2002(b)(1). The appellant has neither briefed nor argued the matter on appeal and it will be treated as abandoned. There remains for review only the ruling on the petition to open the judgment.

On September 9, 1975, appellees started an equity action against the appellant by a service of summons in equity based on the foregoing claims. On September 22, appellant's counsel obtained a rule on the appellees to file their complaint within 20 days. Instead of doing so, they instituted the present action at law on December 4. This complaint at law was served on the appellant at his home on December 10. He ignored the papers served on him. On December 31, exactly 21 days after service, appellees entered a default judgment, notice of which was mailed to the appellant at his Philadelphia address by the Prothonotary during the first week in January. This notice was received in due course of mail and promptly turned over to appellant's counsel. Counsel took no steps to open the judgment or even communicate with counsel for the appellees until June 28, 1976. On that date he notified the appellees of his intention to file a petition to open the default judgment. Such a petition was filed on July 13 and with it the appellant's answer to the complaint.

In the petition the appellant avers that he did not call the complaint to the attention of his counsel until after the default judgment had been entered because "he reasonably assumed that it related to the previously filed action in equity". The ensuing delay of nearly six months in filing

[ 253 Pa. Super. Page 528]

    the petition to open the judgment is explained in the petition as an "unintentional inadvertence" caused by the fact that appellant's counsel misplaced the file because of "temporary and inexperienced secretarial help". Concerning the merits of the dispute, appellant asserts in his petition that the repair work done on the residential property at 303 Levick Street was performed in a good and workmanlike manner and inspected and ...


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