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AUTOLOGIC INCORPORATED AND VOLT INFORMATION SCIENCES v. CRISTINZIO MOVERS T/A DOMENIC CRISTINZIO INC. (09/21/84)

filed: September 21, 1984.

AUTOLOGIC INCORPORATED AND VOLT INFORMATION SCIENCES, INC.
v.
CRISTINZIO MOVERS T/A DOMENIC CRISTINZIO INC., APPELLANT



No. 03509 Philadelphia, 1982, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Civil Division, at No. 1502 July Term, 1982.

COUNSEL

Donald K. Joseph, Philadelphia, for appellant.

Vincent R. McGuinness, Jr., Philadelphia, for appellees.

Spaeth, President Judge, and Brosky and McEwen, JJ. McEwen, J., concurs in the result.

Author: Brosky

[ 333 Pa. Super. Page 175]

This is an appeal from the order denying appellant's petition to open a default judgment. Appellant contends that the court below erred in denying the petition on the basis that appellant had not reasonably explained its default. We disagree with appellant and, accordingly, affirm the order of the trial court.

In August of 1980, appellee had equipment moved from California to Pennsylvania. It engaged appellant to move the equipment from Folcroft, Pennsylvania to Gettysburg, Pennsylvania. In October of 1980, appellant was informed by appellee's attorneys that appellee was claiming that appellant was responsible for damage to the equipment and appellant was requested to notify its insurance company. Appellant notified its insurance broker who in turn notified the insurance carrier. Appellee's attorneys thereafter dealt directly with the insurance carrier until, in May of 1982, the carrier notified appellee's attorneys that it declined to make any payment on the claim believing it to be without merit. A copy of this notification was also sent to Clare Fahrer, the employee of appellant in charge of monitoring claims for damages. Appellees then filed a complaint in trespass and assumpsit on July 14, 1982 which was served upon

[ 333 Pa. Super. Page 176]

    appellant on July 15, 1982. Appellant did not answer the complaint and on September 3, 1982 a notice of praecipe for entry of default judgment was served upon appellant. Ms. Fahrer, believing that appellant's insurance company was still handling the matter and that these documents were merely copies, did not forward either of the documents to either the insurance company or her superiors. A default judgment was entered on September 16, 1982. Appellant filed its petition to open judgment on October 18, 1982, which the lower court denied on November 17, 1982. This appeal timely followed.

Appellant argues that the court below abused its discretion by denying its petition to open on the basis that it had not reasonably excused its default. We disagree.

We note initially that a petition to open a default judgment is an appeal to the trial court's equitable powers, and its decision will not be overturned absent a clear abuse of its discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). The court must look to the promptness with which the petition to open was filed, the reason given for the default, and the merits of the defense asserted. Id.

Instantly, appellant argues that its failure to answer the complaint was due to Ms. Fahrer's belief that the matter was being handled by the insurance company and, therefore, that the complaint was simply a copy of a document of which the insurance company was aware. It contends that this belief was justifiable because she knew that the matter had been referred to the insurance company which had then dealt directly with appellee.

Generally speaking, a default attributable to a defendant's justifiable belief that his legal interests are being protected by his insurance company is excusable. Bethlehem Apparatus Company, Inc. v. H.N. Crowder Company, Inc., 242 Pa. Super. 451, 364 A.2d 358 (1976). However, if the insured fails to inquire of the insurer as to the status of the case after ...


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