No. 204 March, 1979, Appeal from the Order of the Court of Common Pleas, Civil Division, of Adams County at No. 78-S-348.
Leo E. Gribbin, Jr., York, for appellant.
John R. White, Gettysburg, submitted a brief on behalf of Ingram, appellees.
Cercone, President Judge, and Watkins and Montgomery, JJ. Cercone, President Judge, files a concurring and dissenting opinion.
[ 307 Pa. Super. Page 24]
This case comes to us on appeal from the Court of Common Pleas of Adams County and involves defendant-appellant's appeal from an Order of that court which denied appellant's petition to open a default judgment rendered against him.
Appellees, husband and wife, contracted with Dovertown Estates, Inc., for the construction of a dwelling house for appellees by virtue of an agreement September 16, 1977. On August 28, 1978, plaintiff-appellees filed a Complaint in Assumpsit against Dovertown Estates, Inc., Gerhard Boerner, William L. May, trading as M.O. Plastering Company, and W.H. Ausherman. Dovertown was the general contractor, Boerner was the President of Dovertown and May and Ausherman were sub-contractors. On September 5, 1978, defendant Ausherman filed Preliminary Objections to appellees' complaint and on September 18, 1978, defendant May did the same. On September 22, 1978, defendants Dovertown and Boerner filed Preliminary Objections.
On February 1, 1979, the court below granted the Preliminary Objections of defendants May and Ausherman. On June 6, 1979, defendants Dovertown and Boerner's Preliminary Objections were listed for argument for July 9, 1979. Written notice of same was presented to the attorney for Dovertown and Boerner. When defendants' attorney failed to either file a brief or appear at Argument Court on July 9, 1979, the court below dismissed their Preliminary Objections
[ 307 Pa. Super. Page 25]
and ordered the defendants to file an Answer to plaintiffs' complaint within twenty (20) days.
No Answer was filed by the defendants. On August 1, 1979, three (3) days after the Answers were due, plaintiffs entered a default judgment against defendants Dovertown and Boerner and damages were assessed according to plaintiffs' prayer for relief in their Complaint. Notice of entry of the default judgment was forwarded on August 2, 1979 to both defendants and their attorney.
On August 6, 1979, defendant Boerner filed a Petition to Open the Default Judgment. (Defendant Dovertown Estates is now a defunct corporation). A Rule to Show Cause Why the Judgment should not be opened was entered by the court on plaintiffs. The date of the Rule returnable was September 11, 1979 on which date plaintiffs' counsel answered the petition to open. The date of the hearing on the Rule Returnable had been set for September 11, 1979, at which time counsel for Boerner appeared without witnesses or depositions. On September 14, 1979 the court below entered an Order denying Boerner's petition to open.
On October 12, 1979, Boerner filed the instant appeal to our court. On the same date he filed a Petition for Reconsideration with the lower court and the court below directed Boerner to submit to a deposition on the merits of his defense to plaintiffs' ...