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WILLIAM J. PAULES v. WILLIAM H. SMINKEY (08/21/81)

filed: August 21, 1981.

WILLIAM J. PAULES, APPELLANT,
v.
WILLIAM H. SMINKEY



No. 257 March Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Division, York County, at No. 78-S-786.

COUNSEL

Timothy P. Ruth, York, for appellant.

Samuel M. Learned, Jr., York, for appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ.

Author: Cercone

[ 290 Pa. Super. Page 224]

Occasionally, our courts are faced with situations wherein the spirit underlying our rules of civil procedure is obviated by some members of the bar, and as a result, the goal of providing for the swift, orderly, and efficient administration of justice is often obstructed. Far too frequently counsel for litigants discredit the objective of court rules in order to obtain unfair advantage over their adversaries. For instance,

[ 290 Pa. Super. Page 225]

    under the rule which provides for the taking of default judgments, we cannot condone the course of conduct followed by counsel for appellee in the present case who quickly "snapped up" judgment on his counterclaim without providing his opposing party with prior notice of his intention to do so.

On March 22, 1978, William J. Paules, appellant herein, filed suit in assumpsit against appellee, William H. Sminkey, to recover the sum of $3,800.00 with interest. This amount was alleged to be due and payable pursuant to an oral novation of a prior contract between Paules and Sminkey for the sale of an automobile. On April 17, 1978, Sminkey timely filed and properly served an answer, new matter and counterclaim for the amount of $950.00 with interest. Attached to this pleading was the standard notice to defend pursuant to Pennsylvania Rule of Civil Procedure 1018.1. In the answer, new matter, and counterclaim, Sminkey alleged a series of transactions between the two parties for the purchase and sale of automobiles which, in his overall calculation, left Paules owing Sminkey $950.00 plus interest and costs.

Paules failed to file a responsive pleading to Sminkey's counterclaim despite the fact that it was prefaced with the Rule 1018.1 notice to defend. On May 9, 1978, two days after the time for filing had run, Sminkey's attorney entered a default judgment against Paules in the amount of $950.00 for failure to file a reply to Sminkey's pleading. Three days later on May 12, 1978, Paules filed a petition to open judgment and, on the same day, the Court of Common Pleas of York County granted a rule against Sminkey to show cause why the judgment should not be opened so that Paules could put forward a defense to Sminkey's counterclaim. Paules' petition alleged that he is a resident of Massachusetts and that this hindered communications between him and his attorney. He proferred this as his reasonable excuse for not filing a responsive pleading within the required twenty day period. Sminkey thereafter filed his answer to the petition to open judgment on May 22, 1978 and specifically

[ 290 Pa. Super. Page 226]

    denied Paules' asserted reason for his failure to file a responsive pleading.

On June 5, 1978, Paules filed a motion to amend his petition to open judgment so as to allege meritorious defenses to Sminkey's counterclaim because they were not present in his original petition to open judgment. On June 8, 1978, Sminkey filed an answer to the motion to amend along with a rule to show cause why Paules should not proceed under Pa.R.C.P. 209. After the court issued the rule to show cause, a status conference was held on June 20, 1978 pursuant to which an order was issued. The terms of this order indicated that Paules' counsel should list the case for argument on his motion to amend the petition to open judgment and that Paules would not be obliged to proceed under Pa.R.C.P. 209 until the court entered an order on the motion to amend. Further, the order contemplated that "counsel for plaintiff shall at that time take the ...


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