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DOROTHY NEWSOME v. NEIL A. BRASWELL (06/15/79)

decided: June 15, 1979.

DOROTHY NEWSOME
v.
NEIL A. BRASWELL, INDIVIDUALLY AND T/A NEIL'S EXXON STATION AND EXXON COMPANY, U.S.A. APPEAL OF NEIL A. BRASWELL, INDIVIDUALLY AND T/A NEIL'S EXXON STATION



No. 980 October Term, 1978, Appeal from the Order entered January 30, 1978, of the Court of Common Pleas of Philadelphia County, Trial Division, No. 1322 March Term, 1977.

COUNSEL

Joseph B. Erwin, Philadelphia, for appellant.

John Mattioni, Philadelphia, for appellee.

Van der Voort, Hester and Montgomery, JJ.

Author: Hester

[ 267 Pa. Super. Page 85]

Appeal is taken from an order of the Court of Common Pleas of Philadelphia County refusing to either open or strike a default judgment entered against appellant. We agree with appellant that the procedure used in taking the default was not authorized by rules of court, and will therefore reverse.

Appellee Dorothy Newsome filed a complaint in trespass on March 14, 1977 against appellant Braswell, t/d/b/a Neil's Exxon Station and against Exxon Company, U.S.A. The complaint alleged that appellant Braswell had installed a new water hose, manufactured by Exxon, in appellee's automobile and that the water hose was unreasonably dangerous and defective. As a result of the alleged defect in manufacture and negligence of all defendants, the hose separated from its connection to the radiator two days later, burning Miss Newsome with scalding hot water. In answer, appellant denied he had sold Miss Newsome a new water hose, but alleged he had only made temporary repairs to an old water hose in her car, and that she had been advised to purchase a new water hose soon. Appellee then moved the court for an order compelling Braswell to produce for inspection his ledger and receipt books for the period in question. Pa.R.C.P. 4009. This motion was granted on August 19, 1977, the court affording appellant Braswell thirty days to comply. The court's order concluded:

Should defendant Braswell fail to comply with the terms of this Order within time specified, then in such event, judgment of default shall be entered in favor of plaintiff and against defendant Neil Braswell, individually and trading as Neil's Exxon Station upon praecipe of plaintiff.

By the Court:

     s/ Gelfand

J.

(emphasis added)

On September 16, 1977, appellant Braswell not having produced the requested documents, ...


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