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JAMES A. NARDULLI v. JOHN CARLO (12/28/79)

filed: December 28, 1979.

JAMES A. NARDULLI, T/D/B/A VANDERBILT SLAG COMPANY
v.
JOHN CARLO, INC., A CORPORATION, AND FIREMENS FUND INSURANCE COMPANY, A CORPORATION. APPEAL OF FIREMENS FUND INSURANCE COMPANY



No. 1220 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Washington County, Civil Action-Law, No. 411 March Term, 1977.

COUNSEL

Howard T. Gilfillan, Pittsburgh, for appellant.

George B. Stegenga, Washington, for appellees.

Price, Hester and Montgomery, JJ. Price, J., files a dissenting opinion.

Author: Hester

[ 274 Pa. Super. Page 37]

This is an appeal from an order of the Court of Common Pleas of Washington County denying appellant's petition to open judgment.

Appellees initiated this action against John Carlo, Inc., a general contractor (not a party to this appeal) and its surety, appellant. Two extensions of time were granted to Carlo's attorney to file a responsive pleading. However, no appearance being entered for the appellant, appellee took judgment by default on April 22, 1977, twenty-two days after the complaint was filed.

After petition to open by appellant, the lower court refused to open the judgment reasoning that neither a meritorious defense nor a reasonable excuse for the default was presented.

Our review of the record in this case leads us to conclude that the lower court abused its discretion in refusing to open the judgment. We believe the requirements necessary to open a judgment had been met, i. e., 1) the petition to open must be filed promptly; 2) the failure to file an answer must be satisfactorily explained; and 3) a meritorious defense must be alleged. See Epstein v. Continental Bank and Trust Company, 260 Pa. Super. 522, 394 A.2d 1049 (1978).

[ 274 Pa. Super. Page 38]

A reasonable explanation was given by appellant's counsel as to why a responsive pleading had not been filed on behalf of appellant.

Counsel explained that he represented both the contractor and its surety (appellant). He procured from appellee extensions of time to file a responsive pleading. It was his belief that he had communicated the fact that he represented the surety to appellee's counsel. His letters, however, did not mention the appellant. Appellee's counsel testified that this fact was never communicated to him. Thus the default was taken against appellant when no answer was filed.

We believe this failure to answer was based on a misunderstanding between counsel as distinguished from mere inadvertence or negligence.

Errors of counsel which indicate an oversight rather than a deliberate decision not to defend, have been held to constitute sufficient legal justification to open a default judgment. Tice v. Nationwide Life Insurance Company, 253 Pa. Super. 118, 384 A.2d 1257 (1978).

We are unable to arrive at any other conclusion from the within set of facts. There was no reason for appellant not to file a responsive pleading. The appellant's liability was not primary but secondary since it was a surety.

Clearly, the failure here was a result of counsel's belief that he had procured an extension of time to file an answer for both defendants. This misunderstanding ...


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