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VISION SERVICE PLAN PENNSYLVANIA v. PENNSYLVANIA AFSCME HEALTH AND WELFARE FUND GERALD W. MCENTEE (04/13/84)

filed: April 13, 1984.

VISION SERVICE PLAN OF PENNSYLVANIA, A NOT-FOR-PROFIT CORPORATION,
v.
PENNSYLVANIA AFSCME HEALTH AND WELFARE FUND; GERALD W. MCENTEE, TRUSTEE; JESSE C. NEWCOMER, TRUSTEE AND ADMINISTRATOR, APPELLANTS



No. 116 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at No. G.D. 81-26265

COUNSEL

Jonathan Walters, Pittsburgh, for appellants.

John J.B. Jones, Pittsburgh, for appellee.

Cavanaugh, Johnson and Montgomery, JJ.

Author: Montgomery

[ 326 Pa. Super. Page 477]

This appeal arises from a lower court order denying a petition to strike or open a judgment. Plaintiff-Appellee, Vision Service Plan of Pennsylvania, instituted this action in the lower court against Defendant-Appellants, Pennsylvania AFSCME Health and Welfare Fund, Gerald W. McEntee, Trustee, and Jesse C. Newcomer, Trustee and Administrator, seeking damages for breach of contract.

Plaintiff's Complaint was served on Defendants on September 29, 1981. On October 14, 1981, Defendants' counsel telephoned Plaintiff's counsel and requested an extension of time in which to respond to the Complaint. Plaintiff's counsel agreed to an extension of twenty days from the date of the telephone call. By letter dated October 20, 1981, Defendants' counsel confirmed the oral agreement and stated that a response would be filed on or before November 3, 1981.*fn1 On November 4, 1981, counsel for Defendants mailed preliminary objections to the Prothonotary

[ 326 Pa. Super. Page 478]

    and to Plaintiff's counsel, which were received by both on November 6, 1981. However, the Prothonotary's office refused to docket Defendants' preliminary objections because they were not accompanied by a brief, as was required by Administrative Order No. 43 of the Court of Common Pleas of Allegheny County, dated October 17, 1979.*fn2 On November 13, 1981, Plaintiff's counsel filed a praecipe for entry of default judgment and judgment was entered that day by the Prothonotary.*fn3

On November 23, 1981, Defendants filed a petition to strike, or, in the alternative, to open the default judgment. On January 26, 1982, after submission of briefs and oral argument, the lower court denied Defendants' petition. A request for reconsideration was submitted on February 8, 1982, and was denied on February 10, 1982. This appeal followed.*fn4

[ 326 Pa. Super. Page 479]

In support of their contention that the lower court committed an error of law, the Appellants point out the long-established rule that although the filing of a responsive pleading may be late, if it is filed before the filing of a praecipe for judgment, it will nevertheless bar a default judgment. See Fuel City Manufacturing Co. v. Waynesburg Products Corp., 268 Pa. 441, 112 A. 145 (1920); Von Schirach v. Vance, 239 Pa. 300, 86 A. 856 (1913); Bordentown Page 479} Banking Co. v. Restein, 214 Pa. 30, 63 A. 451 (1906); Barndollar v. Fogarty, 203 Pa. 617, 53 A. 492 (1902); Metz v. Hoffman, 131 Pa. Super. 303, 200 A. 132 (1938). The rationale of these decisions is that once a responsive pleading is filed a default judgment cannot thereafter be entered because the responding party is no longer in default. In denying Appellants' petition to open or strike the default judgment, the lower court held that the above-stated rule of law has been abrogated by the adoption of Pennsylvania Rule of Civil Procedure 237.1(a), which provides:

No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered ...


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