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ALBERT A. KENNEDY v. FRANK L. BLACK (01/30/81)

decided: January 30, 1981.

ALBERT A. KENNEDY, SR. AND ANN G. KENNEDY, TRADING AND DOING BUSINESS AS BENNINGTON COMPANY, APPELLANTS,
v.
FRANK L. BLACK, JR., INC., UNITED STATES FIDELITY AND GUARANTY CO., AND CARROLL TOWNSHIP AUTHORITY



No. 80-1-23, Appeal from Order of the Court of Common Pleas, Washington County, Civil Action-Law, No. 333 April Term 1977, Superior Court, No. 1137 April Term 1978.

COUNSEL

Gary N. Altman, Hirsch, Weise & Tillman, Herbert Grigsby, Pittsburgh, for appellants.

Richard B. Tucker, III, Jeffrey J. Leech, Tucker, Arensberg, Very & Ferguson, Pittsburgh, for appellees.

David Fawcett, Pittsburgh, for amicus.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ.

Author: O'brien

[ 492 Pa. Page 399]

OPINION OF THE COURT

This appeal is from an order of the Superior Court, affirming an order of the Court of Common Pleas of Washington county, which granted a petition by appellees, Frank L. Black, Jr., Inc. and United States Fidelity and Guaranty Company, to open a default judgment entered by appellants, Albert A. Kennedy, Sr. and Ann G. Kennedy, trading and doing business as Bennington Company.

Black was the general contractor for the construction of sewage pumping stations in Carroll Township, Washington County. In August, 1975, Black subcontracted with Kennedy for certain excavation work required for the project. Following a dispute between Kennedy and Black, Kennedy abandoned the job site in May, 1976. On April 28, 1977, Kennedy filed an action in assumpsit against Black, Fidelity, the bonding company for Black and the Carroll Township Authority.*fn1

On May 16, 1977, counsel for Kennedy contacted the attorney for Black and Fidelity and granted the latter a

[ 492 Pa. Page 400]

    thirty-day extension to file an answer or other responsive pleading. When no answer was filed, Kennedy's attorney wrote to counsel for Black and Fidelity, requesting action. On August 2, 1977, the attorney for Black and Fidelity notified opposing counsel that he had not yet had a conference with his clients, but was planning such a meeting in the near future.

On October 4, 1977, Kennedy's attorney telephoned appellees' counsel and asked when responsive pleadings would be filed. Appellees' counsel said he had talked with his clients but was somewhat unsure about their position. On October 26, 1977, Kennedy's counsel, having not heard from appellees, again wrote and requested that some action be taken. Nothing was done and on ...


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