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WILLIAM A. GIALLORENZO AND LUCY ANN HORCHAK v. AMERICAN DRUGGISTS' INSURANCE COMPANY (07/02/82)

filed: July 2, 1982.

WILLIAM A. GIALLORENZO AND LUCY ANN HORCHAK, APPELLANTS,
v.
AMERICAN DRUGGISTS' INSURANCE COMPANY



No. 1100 Pittsburgh, 1981, Appeal from the Order of October 19, 1981, Court of Common Pleas, Beaver County, Civil Division, at No. 1190 of 1981.

COUNSEL

Joseph M. Stanichak, Aliquippa, for appellants.

Terry C. Cavanaugh, Pittsburgh, submitted a brief on behalf of appellee.

Hester, McEwen and Johnson, JJ.

Author: Johnson

[ 301 Pa. Super. Page 295]

This is an appeal from an order striking a default judgment in an assumpsit action seeking recovery under a policy of fire insurance. Finding no abuse of discretion by the lower court, we affirm.

In June, 1981, the Plaintiffs filed their complaint against the American Druggists' Insurance Company (Defendant) for property losses alleged to have occurred in October 1980 to certain premises in Aliquippa, Beaver County. One month later, counsel for the Defendant entered an appearance on its behalf by mailing his praecipe to the Beaver County Prothonotary from his law office in Pittsburgh. A copy of the letter forwarding the praecipe to the Prothonotary was mailed to Plaintiffs' counsel and contained a blind

[ 301 Pa. Super. Page 296]

    post script requesting twenty additional days in which to review the Complaint just received by defense counsel from the Defendant.

The very day (July 15, 1981) that Plaintiffs' counsel received the copy of the letter by which the praecipe for appearance had been mailed to the Prothonotary, he responded acknowledging receipt of the copy and indicating, on behalf of his clients, that "[w]e need money immediately for demolition and that's why we will have to press as rapidly as possible."

On September 9, 1981, nearly three months after the Complaint had been filed, and nearly two months after defense counsel had requested twenty days in which to review the Complaint, Plaintiffs' counsel again wrote to defense counsel, stating:

"In your letter of July 14, 1981, you requested an additional 20 days to file an answer to the Complaint, which have long since passed. Because of the pressing nature of this matter, you are hereby requested to file an appropriate answer within ten (10) days from the date of this letter before I enter a default judgment. I am sorry that I have to do this, but I am in jeopardy of losing my client at this moment." [Emphasis added.]

Thereafter, on September 22, 1981, Plaintiffs' counsel filed his Praecipe for Judgment for Want of an Answer and Assessment of Damages. Accompanying the Praecipe was an Affidavit of Notice to which were attached copies of the letter of Defendant's counsel (containing the blind post script requesting twenty additional days) and ...


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