No. 279 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Erie County, Pennsylvania, at No. 710 - A - 1976, Civil Division.
Eugene J. Brew, Jr., Erie, for appellants.
Howard N. Plate, Erie, for appellees.
Price, Cavanaugh and Watkins, JJ. Price, J., concurs in the result. Cavanaugh, J., files a dissenting statement.
[ 297 Pa. Super. Page 97]
This case comes to us on appeal from the Court of Common Pleas of Erie County, and involves defendant-appellants' appeal from an order of the court below which denied their motion to open a default judgment entered against them by the plaintiffs.
Plaintiffs, husband and wife, owned three vacant lots in Harborcreek Township, Erie County, Pennsylvania. On May 3, 1972, the defendants, supervisors of the township, adopted a resolution reserving the plaintiffs' three lots for use in conjunction with a planned Y.M.C.A. project and denied plaintiffs' application for a building permit for the lots. On April 30, 1973, the East Erie Suburban Recreation and Conservation Authority filed a Declaration of Taking relative to plaintiffs' three lots. Eminent Domain proceedings were commenced and a Board of View ultimately awarded plaintiffs $28,000 for the lots. Plaintiffs' appealed the viewers' award to the Common Pleas Court of Erie County but subsequently settled the matter prior to the trial.
[ 297 Pa. Super. Page 98]
On February 24, 1976 plaintiffs filed the instant action in the Court of Common Pleas of Erie County by initiating a Complaint in Trespass against the defendants who are the township supervisors. The suit is for damages allegedly suffered by plaintiffs due to the May 3, 1972 resolution reserving plaintiffs' lots for the planned Y.M.C.A. project for the period May 3, 1972 up until the date of the Declaration of Taking in April, 1973. The complaint was served on two of the supervisors personally by the Sheriff of Erie County on February 26, 1976. The third complaint was served upon Fred McClurg, Secretary of the township, in the name of the third supervisor on the same date. No responsive pleading was filed to the complaint and on March 26, 1976 the plaintiffs' attorney filed a Praecipe for Judgment with the Prothonotary of Erie County, requesting judgment for failure to appear within twenty (20) days from the date of service of the complaint. Plaintiffs' attorney failed to serve any notice of the complaint or the entry of the default judgment on the solicitor for the township who was also the authority's solicitor. Plaintiffs' attorney also failed to provide notice of his intent to enter a default judgment to the township. Plaintiffs' attorney had represented them throughout the condemnation proceedings, which were extensive and had involved an appeal to the Commonwealth Court, and was aware of the identity of the township solicitor and of the fact that he was also the authority's solicitor.
On July 14, 1976, plaintiffs' attorney advised the township solicitor that the time had come to prepare for the trial of the case on the issue of damages. This was the first notice he had of the suit. On July 16, 1976, the township filed a Petition to Open the Default Judgment plaintiffs had taken against the defendants. After depositions were taken of the three defendants, the township secretary, and the solicitor, the court handed down an order on March 14, 1979 which dismissed the defendant's petition to open the default judgment. Defendants took this appeal.
[ 297 Pa. Super. Page 99]
In general for the court to exercise its discretion and open a default judgment three ...