No. 906 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County, at No. 2342 October Term, 1978.
Samuel L. Spear, Philadelphia, for appellant.
Peter C. Paul, Philadelphia, for Prudential, appellee.
Gayle R. Smith, Assistant City Solicitor, Philadelphia, for Philadelphia, appellee.
Spaeth, Brosky and Van der Voort, JJ. Brosky, J., files a dissenting opinion.
[ 286 Pa. Super. Page 303]
This is an appeal from an order of the lower court opening a default judgment. Appellant, Elizabeth Corprew filed a
[ 286 Pa. Super. Page 304]
complaint on October 16, 1978; count one was in assumpsit against the Prudential Insurance Company (hereafter referred to as the company); and a second count in trespass named as defendant the City of Philadelphia (hereafter referred to as the city). It was alleged that the city negligently advised appellant, and failed to take the proper action concerning life insurance proceeds payable under a policy on a deceased city employee. Appellant claims to be a beneficiary under the policy. The city was served with notice to defend on October 19, 1978. The city did not file an answer nor did it have its attorney enter an appearance. On December 21, 1978 (63 days after the city had been served) appellant moved for judgment by default for failure to plead; appellant's motion was granted. The city received notice of the default judgment on December 27, 1978, and petitioned to open judgment on January 17, 1979. The city argued that due to conflicting claimants of the pension and insurance proceeds of the deceased employee, the employee's personnel file was in intra-departmental circulation. The city claimed the file was essential, to its determination of the validity of appellant's claim and to respond to the complaint. The city concluded that its failure to answer was a clerical inadvertence due to the confusion over who was entitled to the proceeds. The court opened judgment on March 29, 1979 finding the failure to answer was due to a "reasonable excuse". The court filed a supplemental opinion on October 2, 1979. In its supplemental opinion the court noted that appellant had waited some four years and eight months to institute the suit and that she had pointed to no prejudice incurred as a result of the city's delay. Appellant here appeals the order opening judgment.
Appellant's argument is simply that the excuse given by the city for its failure to answer was not adequate. The city argues to the contrary, suggesting its reasons demonstrated a legitimate excuse for its failure to answer. The company which did file an answer, is not directly involved in the present controversy; however the company would like to have the controversy over the entitlement of the proceeds
[ 286 Pa. Super. Page 305]
litigated, instead of determined by a default judgment. The company argues the city's failure to answer is excusable and not prejudicial to the appellant.
"This court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear, manifest abuse of discretion is shown. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Epstein v. Continental Bank & Trust Company,  Pa. Super. , 394 A.2d 1049 (1978); Nevils v. Chernitsky, 244 Pa. Super. 501, 368 ...