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STATE EQUIPMENT DIVISION SECORP NATIONAL v. BRYAR CONSTRUCTION CORP. (09/28/84)

filed: September 28, 1984.

STATE EQUIPMENT DIVISION OF SECORP NATIONAL, INC., APPELLANT,
v.
BRYAR CONSTRUCTION CORP., A/K/A BRYAR CONSTRUCTION COMPANY AND SQUAW VALLEY COAL COMPANY V. THE FIRST NATIONAL BANK



No. 1263 Pittsburgh, 1982, Appeal from the Order dated November 5, 1982, in the Court of Common Pleas of Westmoreland County, Civil Division, at No. 8105 of 1979.

COUNSEL

Richard J. Fidei, Beaver, for appellant.

David L. Robinson, Greensburg, for appellee.

Rowley, Hester and Roberts, JJ.

Author: Roberts

[ 333 Pa. Super. Page 448]

Appellant Secorp appeals from an order of the Court of Common Pleas of Westmoreland County granting the petition

[ 333 Pa. Super. Page 449]

    of appellee First National Bank of Avonmore to open a default judgment, and further directing that the same judgment be stricken. We modify the order to provide only that the judgment be opened.

I

Appellant obtained the default judgment against appellee Bank on November 20, 1979, three months after appellant had served appellee with "Interrogatories to Garnishee." The interrogatories, which went unanswered during that three-month period, were filed in connection with execution proceedings on a default judgment which appellant had obtained on July 26, 1979, against Bryar Construction Corp. and Squaw Valley Coal Co., depositors of appellee. Appellant's default judgment against appellee was for $54,211.25 plus costs, a sum which included the full amount of appellant's default judgment of $53,231.21 against Bryar and Squaw. Appellant's judgment against appellee in the amount of $54,211.25 plus costs was entered on praecipe pursuant to the former version of Pa.R.Civ.P. 3146(a), whose current version (effective February 8, 1982) requires notice to the garnishee and a hearing on the amount of judgment. Although appellant's interrogatories to appellee contained a provision stating that appellee was required to answer within 20 days and that failure to answer "may result in judgment against you," see Pa.R.Civ.P. 3253, appellant did not give appellee notice of an intention to file the praecipe for entry of the judgment. Such notice is now specifically required by Pa.R.Civ.P. 237.1, which was promulgated by our Supreme Court on December 14, 1979, less than one month after entry of the present judgment. Rule 237.1 became effective on February 1, 1980, and was made applicable to "pending actions." 496 Pa. XLVI (1979).

On November 29, 1979, nine days after the entry of the default judgment against appellee, Bryar and Squaw initiated Proceedings for Reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101 et seq. On December 21, 1979, just over one month after the

[ 333 Pa. Super. Page 450]

    entry of the default judgment against appellee, appellee filed a petition to Open Judgment along with an answered copy of appellant's interrogatories. In the petition to open and the answers, appellee stated that Squaw had a checking account balance of $16.33 which "remains intact," and that Bryar had a checking account balance of $3.47 which was subject to a writ of execution served June 21, 1979, in connection with another action against Bryar. Appellee attributed its delay in this action to the other action against Bryar. According to appellee, its officials ...


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