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CHERVENAK v. HOTEL RITTENHOUSE ASSOCIATES (05/04/84)

filed: May 4, 1984.

CHERVENAK, KEANE & COMPANY, INC. (C.K.C. ASSOCIATES) AND HERBERT S. LEVIN, ESQUIRE, INTERVENING PETITIONER,
v.
HOTEL RITTENHOUSE ASSOCIATES, INC., APPELLANT



No. 2298 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4730 June Term, 1980.

COUNSEL

Michael H. Egnal, Philadelphia, for appellant.

Barnett Satinsky, Philadelphia, for appellees.

Spaeth, President Judge, and Brosky and Hoffman, JJ.

Author: Hoffman

[ 328 Pa. Super. Page 368]

In this appeal appellant challenges the lower court's refusal to open a default judgment and the court's imposition of counsel fees and costs. Finding no merit in appellant's contentions, we affirm the order of the court below.

Appellant, Hotel Rittenhouse Associates, and Chervenak, Keane and Co. (CKC), contracted in mid-1979, for CKC to advise appellant incident to the building of a hotel-condominium. After the contract was prematurely terminated, and pursuant to their earlier agreement, the parties submitted damage claims to an arbitration panel, consisting of one arbitrator appointed by each party, and appellee, a neutral arbitrator appointed by the lower court to act as panel chairman. The arbitrators' award of $130,020.60 in favor of CKC was appealed to our court by appellant in a companion case, No. 146 Philadelphia, 1982. The instant case arose subsequent to appellant's refusal to pay the full compensation (fee and costs) owed appellee.*fn1 Upon appellant's refusal, appellee filed a Petition to Compel Defendant

[ 328 Pa. Super. Page 369]

    to Pay the Fee of the Independent Arbitrator on October 15, 1981. On November 2, 1981, appellant's preliminary objections were denied with leave to file an answer within fifteen days. Appellant thereupon filed an appeal of that denial which was quashed by this Court on December 28, 1981. Finally, on January 7, 1982, the lower court entered a default judgment against appellant because it had failed to file an answer to appellee's Petition to Compel Payment within the allotted fifteen days. The lower court then ordered appellant to pay a $350 fee to appellee's counsel for the proceedings surrounding the January 7 judgment. After appellant filed a motion to open and/or strike the judgment, the lower court denied the motion and requested that appellee provide a statement of supplemental fees and costs incurred by appellee. Appellee complied and the lower court granted additional fees in the amount of $4,039.99. Appellant's exceptions to the fee determination were denied. This appeal followed.

Appellant contends first that the default judgment must be stricken because it was entered prematurely and sua sponte by the lower court. We find no merit in this contention. With regard to the time of the judgment's entry, appellant avers that during the pendency of its appeal to the Superior Court, the lower court was stayed from acting in the case and that, consequently, the fifteen day period in which appellant was entitled to file an answer had not yet run when the lower court entered the default judgment on January 7. The pertinent chronological events are as follows:

Oct. 15, 1981 Appellee petitions to compel payment of arbitra-

     tor's fee

Oct. 28, 1981 Appellant files ...


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