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BETTY LOUISE BUTTERBAUGH v. WESTONS SHOPPER CITY (06/04/82)

filed: June 4, 1982.

BETTY LOUISE BUTTERBAUGH
v.
WESTONS SHOPPER CITY, INC., APPELLANT. AND NICHOLAS TALERICO V. WESTONS SHOPPER CITY, INC., APPELLANT



No. 373 Pittsburgh, 1981, No. 374 Pittsburgh, 1981, Appeals from the Order of Court of March 13, 1981, Court of Common Pleas, Indiana County, Civil Division, Nos. 1445 CD 1979 and 1427 CD 1979.

COUNSEL

James A. Beinkemper, Pittsburgh, for appellant.

James D. Carmella, Indiana, for Butterbaugh, appellee in No. 373.

Raymond Zadzilko, Indiana, for Talerico, appellee in No. 374.

Johnson, Montemuro and Montgomery, JJ.

Author: Johnson

[ 300 Pa. Super. Page 333]

Appellant filed these appeals from an order denying Appellant's motion to open the default judgment that was entered in each case. For the following reasons, we reverse and remand.

Appellee Talerico filed a complaint in trespass which was personally served upon Appellant on June 20, 1979. On July 11, 1979, Appellee praeciped for entry of a default judgment. Appellee Butterbaugh filed a complaint in trespass which was personally served on Appellant on June 22, 1979. Appellee Butterbaugh proceeded to praecipe for a default judgment on July 16, 1979.

In both cases, Appellant's insurance carrier received the official summons on July 18, 1979. The summons had been transmitted from Appellant to its New York office to its insurance broker and, finally, to its insurer. When the insurer contacted Appellant's counsel, the insurer was informed that a default judgment had been entered in each case.

Counsel for Appellant entered his appearance in each case on July 20, 1979. On September 17, 1979, Appellant petitioned in both cases for a rule to show cause why the default judgment should not be opened. Both petitions were denied by the order of March 13, 1981, which forms the basis for the instant appeals.

In both petitions to open, Appellant avers that it did not receive notice that a default judgment would be entered. The petitions also averred that Appellant's counsel had contacted Appellee's counsel by mail in an effort to open the default judgment but that Appellee's counsel had not replied

[ 300 Pa. Super. Page 334]

    in the Talerico case and had sent a noncommital reply on August 23, 1979, ...


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