No. 2498 Philadelphia, 1980, APPEAL FROM THE ORDER OF OCTOBER 1, 1980 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIV., LAW NO. 298 MAY TERM, 1980
Lee Meredith Herman, Philadelphia, for appellant.
Edward McCandless, Philadelphia, for appellees.
Hester, Cirillo and Johnson, JJ.
[ 304 Pa. Super. Page 159]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting a petition to open a default judgment.*fn1 For the reasons which follow, we reverse and remand for further proceedings.
This case arose out of a trespass dram shop action brought by appellant on May 6, 1980. Appellant/plaintiff sought damages for injuries sustained when he was allegedly pushed through a plate glass window at "The Second Story" by a patron, Tony Canale. Named as defendants were Jefferson Republican Club, liquor licensee; The Second Floor, Inc., operator of the private club; and three individuals who are allegedly officers and/or directors of the above.
On May 8, 1980, the complaint was served on all named defendants. On May 29, 1980, a ten day notice of intention to take default judgment was sent, pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure. On June 9, 1980, Howard M. Girsh, Esquire entered his appearance on behalf of all of the defendants except The Second Floor, Inc. (hereinafter "appellee"). Thereafter, he contacted appellant's counsel, advising him that he did not represent appellee and requesting an extension of time to file an answer on behalf of the other defendants. On June 16, 1980, default judgment was entered against appellee only, for their failure to enter an appearance or answer the complaint. On June 30, 1980, Mr. Girsh contacted appellant's counsel and informed him that appellee was covered by defendant's insurance policy and, therefore, he was going to represent them. He asked appellant to voluntarily open the judgment, but appellant refused. Two weeks later, on July 14, 1980, appellee filed a petition to open the default judgment. The petition was granted on October 1, 1980 and it is from that order that this appeal is taken.
Appellant contends that the lower court erred in opening the default judgment where no depositions were taken and where there were contested issues of fact.
[ 304 Pa. Super. Page 160]
Appellee's petition to open judgment avers that the defendant's insurance policy was ambiguous as to the coverage of appellee and, therefore, the default was reasonably explained as an error of the insurance company. The petition further alleges that the Jefferson Insurance Company initially examined the policy of insurance it had issued and determined that it owed a defense to all named defendants except appellee. The insurance company's records showed only the Jefferson Republican Club, as the insured. On June 13, 1980, after notifying appellant that appellee was not covered by the policy, Mr. Girsh requested further verification from the insurance company on the question of appellee's coverage. On June 28, 1980, the insurance company notified Mr. Girsh that contact with the insured's agent established that the policy was meant to include coverage for appellee. Appellant's answer to the petition denied these factual allegations and demanded strict proof thereof. The pleadings thus disclose one or more disputed issues of fact.*fn2
It is well settled that when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa. Super. 84, 235 A.2d 435 (1967). ...