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ELLEN EPSTEIN v. CONTINENTAL BANK AND TRUST COMPANY AND INDUSTRIAL VALLEY BANK AND TRUST COMPANY (12/07/78)

decided: December 7, 1978.

ELLEN EPSTEIN, APPELLANT,
v.
CONTINENTAL BANK AND TRUST COMPANY AND INDUSTRIAL VALLEY BANK AND TRUST COMPANY, APPELLEES



No. 1242 October Term, 1978, Direct appeal from Judgment and Order dated March 10, 1978 in the Court of Common Pleas at March Term, 1976 - No. 3673, of Philadelphia County, Trial Division - Law.

COUNSEL

Neil E. Jokelson, Philadelphia, for appellant.

C. Lawrence Rutstein, Harrisburg, with him Kenneth F. Carobus, Philadelphia, for appellee, Industrial Valley Bank and Trust Co.

No appearance entered nor brief submitted for appellee, Continental Bank and Trust Co.

Price, Hester and Hoffman, JJ.

Author: Hester

[ 260 Pa. Super. Page 523]

This is an appeal from an order granting a petition to open a default judgment.

Almost 18 months passed between the filing of the complaint and the taking of the default judgment. The lower court opened the default reasoning that appellant's failure to give notice of the entry of the default constituted a "snap" judgment.

As far as we can determine, the factual picture (taken from the depositions of the two attorneys involved), was as follows:

[ 260 Pa. Super. Page 524]

After the complaint had been filed, appellee's attorney contacted appellant's attorney and requested more time to file a responsive pleading. Appellant granted an extension, although no particular time limit was set. However, no pleading was forthcoming from appellee. Sometime during the summer of 1976 (neither attorney was absolutely certain of the month), in a conversation between the two attorneys, appellee's attorney made an offer of settlement which was refused by appellant's counsel. No further action was taken by either side until October 14, 1977, when appellant's attorney again called appellee's attorney. Prior to their call, appellee gave the case to its in-house counsel and the attorney formerly handling the case was no longer involved. Appellant's attorney, however, talked to the former counsel:

". . . I had a telephone conversation with Mr. Rutstein and in that telephone conversation with him I asked him what the status of the matter is. He told me that he had disassociated himself from the case six months ago when the case had been taken from him by IVB and that he had left his former business location where he had some sort of business affiliation with the people that were there and that he had no contact with the case for those six months.

I then mentioned that no answer, and no appearance had ever been filed in the case. He told me that -- I think he mentioned in his deposition -- he asked me for 48 hours in which to file an answer. I am not prepared to dispute that statement by Mr. Rutstein. However, I do recall telling him that nobody from IVB or any other place, including himself, had informed me as of six months prior to ...


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