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N.H. WEIDNER v. JACK BERMAN AND JOANNE D. BERMAN (02/18/83)

filed: February 18, 1983.

N.H. WEIDNER, INC., A PENNSYLVANIA CORPORATION
v.
JACK BERMAN AND JOANNE D. BERMAN, HIS WIFE. APPEAL OF JOANNE D. BERMAN



No. 1080 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Allegheny County, at No. GD 79-3291.

COUNSEL

Stephen J. Harris, Pittsburgh, for appellant.

Steven H. Wyckoff, Pittsburgh, for appellee.

Rowley, Montemuro and Van der Voort, JJ.

Author: Montemuro

[ 310 Pa. Super. Page 591]

This is an appeal from a denial to open a default judgment, and subsequent denial of appellant's motion for rehearing, in the Court of Common Pleas, Allegheny County.

Mr. Jack Berman and Mrs. Joanne D. Berman, his wife, as tenants, entered into a lease with the lessor, N.H. Weidner, Inc., in 1963. The lease contained a tax escalation clause which required the tenants to pay all real estate tax increases on the premises. The present suit was commenced on February 7, 1979, when appellee, Weidner, Inc., filed a complaint in assumpsit, alleging that the tenants were in default due to their failure to pay tax increases for the period from 1967-1978.

Separate appearances were subsequently entered on behalf of both Jack Berman and Joanne D. Berman. In addition, preliminary objections were filed by both. An order of court was issued on October 16, 1979, dismissing

[ 310 Pa. Super. Page 592]

    certain of the tenants' preliminary objections and ordering appellee to file a more specific complaint. An amended complaint was filed on October 23, 1979. It was also met with preliminary objections filed by both tenants. These preliminary objections were dismissed by the court and both tenants were ordered to file an answer within twenty days of the December 10, 1979 order. This time was subsequently extended to January 22, 1980 for tenant Jack Berman, who filed his answer on January 21, 1980. Jack Berman committed suicide on March 27, 1980. His personal representative is not a party to the present appeal as no default was entered against him; only Joanne D. Berman is appealing here.

With reference to appellant Joanne D. Berman's failure to file an answer, she alleged that it was informally agreed upon by respective counsel that she need not file until sometime after all pleadings between appellee and Jack Berman were completed. She cited no evidence in the record to support such allegation. Appellee denied that there was ever an agreement to "indefinitely" extend the time for appellant's answer. Instead, appellee alleged that repeated telephone requests, and three written requests, one by blind post script, were made for appellant's answer. Finally, on August 20, 1980, counsel for appellee sent a letter to both Mr. Berman's counsel and counsel for appellant. The relevant portions of which are set forth below:

To date, I have not received an answer on behalf of Mrs. Berman. When I last spoke to Mr. Brown concerning the fact that an answer had not been filed he indicated to me that there was a possibility that he would be filing a motion to withdraw as Mrs. Berman's counsel. To date I have not received a conformation of Mr. Brown's intentions, nor have I received any word from Mr. Levin. I would appreciate it if you gentlemen would resolve the issues of representation concerning the above noted case. Should I note (sic) hear from either of you within the next two weeks, I will assume that I should feel free to enter a default judgment against Mrs. Berman for failure to file

[ 310 Pa. Super. Page 593]

    an answer, and will then proceed to amend the caption of this case accordingly. Obviously, I do not wish to take advantage of any confusion which has been created by the death of Mr. Berman. However, I must protect my client's interests in connection with this suit. I look forward to your cooperation. (R. 76a, 77a)

Without further notice, a default judgment was entered against appellant on September 8, 1980. On September 16, 1980, appellant filed her petition to open the default judgment. On September 24, 1981, this petition was denied. The lower court wrote a very brief opinion citing no procedural rules. Specifically, it found that there was no valid excuse for appellant's long delay in the face of repeated requests for action. On October 13, 1981, a motion for rehearing was also denied. Appellant then filed this appeal.

Whether to strike or open a default judgment in assumpsit is left to the sound discretion of the trial court; its decision will not be reversed absent a manifest abuse of discretion or error of law. Giallorenzo v. American Druggists' Insurance Company, 301 Pa. Super. 294, 447 A.2d 974 (1982); Butterbaugh v. Westons Shopper City, Inc., 300 Pa. Super. 331, 446 A.2d 641 (1982); Paules v. Sminkey, 290 Pa. Super. 223, 434 A.2d 724 (1981).

Regarding the applicable law, Pa.R.C.P. 237.1, effective February 1, 1980, sets forth notice requirements for the entry of default judgments. The ...


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