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DONALD FOX AND KAY FOX v. VOLKSWAGON AMERICA (05/09/84)

SUPERIOR COURT OF PENNSYLVANIA


submitted: May 9, 1984.

DONALD FOX AND KAY FOX, HIS WIFE, APPELLANTS,
v.
VOLKSWAGON OF AMERICA, INC. AND YBH PORSCHE AUDI AND THE FIDELITY BANK

No. 81 Philadelphia, 1984, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division - Civil Section, No. 6375 November Term, 1982.

COUNSEL

Jerome M. Dubyn, Philadelphia, for appellants.

Richard A. Kolb, Philadelphia, for appellees.

Wickersham, Wieand and Lipez, JJ.

Author: Lipez

[ 328 Pa. Super. Page 339]

This is an interlocutory appeal as of right by plaintiffs from an order opening a default judgment against defendant Fidelity Bank. See Pa.R.A.P. 311(a)(1). We reverse and reinstate the judgment.

We agree with the court below that since this was a trespass action and plaintiffs admitted that the petition to open was promptly filed, the only issue is whether Fidelity Bank established a legitimate excuse for the default. See Schutte v. Valley Bargain Center, Inc., 248 Pa. Super.Ct. 532, 535, 375 A.2d 368, 370 (1977). We disagree with the lower court's holding that Fidelity established a legitimate excuse merely by referring the complaint to its insurance carrier.

A delay solely attributable to an oversight or mistake on the insurance carrier's part will excuse a default only if the insured has no reason to believe his interests are not being protected. Baskerville v. Philadelphia Newspapers, Inc., 278 Pa. Super.Ct. 59, 62, 419 A.2d 1355, 1356 (1980). A defendant cannot assert a justifiable belief that his interests were being protected, if he fails to inquire concerning possible problems of which he should have been aware

[ 328 Pa. Super. Page 340]

    under the circumstances. Id., 278 Pa. Superior Ct. at 62, 419 A.2d at 1357.

Here the petition to open judgment demonstrates on its face that Fidelity Bank had no justifiable belief that its interests were being protected by its insurer, INA. The petition avers that Fidelity referred the complaint to INA,*fn1 but never inquired concerning the case because nothing was received from INA indicating a refusal to provide a defense. Ten months after service of the complaint, Fidelity Bank was served with a notice of intent to take a default judgment within ten days. This notice clearly informed Fidelity of the need to take some action within ten days to protect itself from a default judgment. Nevertheless, the petition to open judgment simply avers that the notice was referred to INA, and there is not even an allegation that Fidelity inquired of INA, concerning whether a defense was to be provided with respect to the complaint which had been forwarded ten months earlier. The failure to inquire or take any other action under these circumstances clearly shows that Fidelity Bank had no justifiable belief that INA was protecting its interest. Baskerville v. Philadelphia Newspapers, Inc., supra.*fn2 Accordingly, the order opening the judgment must be reversed.*fn3

Order reversed, and judgment reinstated.


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