No. 1568 October Term, 1977, Appeal from the Order Entered April 27, 1977 of the Court of Common Pleas of Lehigh County, Civil Action--Law, at No. 1088 June Term, 1974 in Garnishment.
Irving W. Coleman, Allentown, for appellant.
Robert M. Davison, Bethlehem, for appellee, Queen City Electrical Supply Co., Inc.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, concurs in the result. Spaeth, J., files a dissenting statement. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 306]
This is an appeal from an order of the Court of Common Pleas of Lehigh County, refusing to open a default judgment.
Plaintiff-appellant, Queen City Electrical Supply Co., Inc. obtained a $24,759.17 judgment by confession in an assumpsit action against Soltis Electric Co., Inc., principal defendant here. Queen City sought to execute the judgment by attaching an account Soltis had with appellant, The Cement National Bank. A writ of attachment execution and garnishee interrogatories were served on the bank on August 12, 1974. On August 15, the bank sent the interrogatories to its attorney, Jerome W. Burkepile, along with the information
[ 258 Pa. Super. Page 307]
necessary to answer them. Burkepile prepared the answers and gave them to the bank on August 21 for signature and return. The answers were signed by an officer of the bank and returned to Burkepile for filing the next day.
Burkepile, however, was in poor health at the time, and was working only part time with the result that the deadline for filing, September 3, 1974, passed without the answers having been filed. On September 4, 1974, at 9:51 A.M., Queen City took a default judgment in the amount of $24,759.17, pursuant to Pa.Rule of Civil Procedure 3146(a). The bank was notified, Burkepile was contacted and Burkepile filed the answers the next day (September 5, 1974). The answers revealed that the account contained $1,762.56.
The same day, Soltis was adjudicated a bankrupt in proceedings in the United States District Court for the Eastern District of Pennsylvania.
Attempts by Howard S. Epstein, the attorney who had taken the default judgment on behalf of Queen City, to contact Burkepile regarding the default judgment were unsuccessful. Burkepile stopped coming to work in early October, was hospitalized October 11 and died on November 8, 1974.
Howard E. Snyder, an attorney belonging to the same firm as Epstein, was appointed as Trustee in Bankruptcy for Soltis. He sent a letter to the bank on December 11, 1974 ...