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KEYSTONE BOILER WORKS v. COMBUSTION & ENERGY CORPORATION AND PHILADELPHIA COKE COMPANY INC. AND NL INDUSTRIES (01/08/82)

filed: January 8, 1982.

KEYSTONE BOILER WORKS, INC., APPELLANT,
v.
COMBUSTION & ENERGY CORPORATION AND PHILADELPHIA COKE COMPANY INC. AND NL INDUSTRIES, INC.



No. 2545 OCTOBER TERM, 1979, Appeal from an Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4560 February Term, 1979.

COUNSEL

John H. Colehower, Philadelphia, for appellant.

John A. Wetzel, Philadelphia, for appellees.

Hester, Popovich and DiSalle, JJ. Decision was rendered prior to DiSalle, J., leaving the bench of the Superior Court of Pennsylvania.

Author: Hester

[ 294 Pa. Super. Page 147]

This is an interlocutory appeal as of right, pursuant to Pennsylvania Rule of Appellate Procedure 311(a)(1), from an Order of the Court of Common Pleas of Philadelphia County, dated November 27, 1979, granting appellee's, Combustion & Energy Corporation, Petition to Open a Default Judgment entered against it on April 4, 1979.

On February 27, 1979, appellant, Keystone Boiler Works, Inc., filed its complaint in assumpsit against appellee seeking the balance due for the sale, delivery and installation of a Boiler Forced Draft Fouled Air Duct System. Prior to the filing of the complaint, on February 12, 1979, appellant's counsel wrote to appellee's President, Jerry Bernstein, advising him of appellant's intent to institute suit and he enclosed a copy of the complaint. Service of the complaint was effected upon Mr. Bernstein in Brooklyn, New York on March 3, 1979, by certified mail, pursuant to 42 Pa. C.S.A. Section 5323.

Mr. Bernstein referred the complaint to his New York counsel, who advised that he in turn would forward the matter to Philadelphia counsel for disposition.

On April 4, 1979, since no answer had been filed, appellant filed a default judgment against appellee, at which time the Prothonotary's notice of default judgment was sent to appellee pursuant to Pennsylvania Rule of Civil Procedure 236. On April 24, 1979, appellant's counsel sent a letter to Mr. Bernstein, with a copy of the relevant docket entries enclosed, and requested that Mr. Bernstein contact him within 10 days. The letter stated in relevant part:

"Unless we hear from you within 10 days of the date of this letter, we will transfer the record to our New York counsel who will initiate proceedings in a local court to execute on the judgment."

[ 294 Pa. Super. Page 148]

Appellant was granted a Writ of Attachment concerning appellee's accounts receivable in Pennsylvania against Philadelphia Coke Company, as garnishee, on June 29, 1979.

Finally, on July 13, 1979, appellee filed its Petition to Open, and the lower court granted appellee leave to take depositions in order to support its petition. Prior to July 13, 1979, appellee took ...


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