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STEPHEN S. NOETZEL AND MARILYN B. NOETZEL v. GLASGOW (01/30/85)

filed: January 30, 1985.

STEPHEN S. NOETZEL AND MARILYN B. NOETZEL, HIS WIFE, APPELLEES,
v.
GLASGOW, INC., APPELLANT



No. 2421 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 81-22360.

COUNSEL

Edward W. Mullinix, Philadelphia, for appellant.

John M. Sheridan, Norristown, for appellee.

Brosky, Wieand and McEwen, JJ.

Author: Wieand

[ 338 Pa. Super. Page 463]

This is an appeal from an order denying a petition to strike/open a judgment for $300,000 which was recovered in West Virginia and transferred to Montgomery County, Pennsylvania, pursuant to the Uniform Enforcement of Foreign Judgments Act.*fn1 Appellant contends that the West Virginia judgment is not entitled to full faith and credit in Pennsylvania because it was obtained in violation of due process requirements. We disagree and, therefore, affirm the order refusing to strike the judgment. However, we will direct that the judgment be amended to reflect partial satisfaction effected by payments admittedly received in West Virginia.

Stephen and Marilyn Noetzel, husband and wife, brought suit in the Circuit Court of Kanawha County, West Virginia, to recover for personal injuries sustained in an automobile accident on Interstate Route 79 in Kanawha County. Named as defendant was Glasgow, Inc., a Pennsylvania corporation, which had contracted with the West Virginia Department of Highways to perform road work. It was alleged in the Noetzel complaint that Glasgow had negligently erected "Detour" barriers, without proper warning signs, thus causing the Noetzel vehicle to crash. Service of the complaint was effected on June 18, 1979 by making service on the Secretary of State of West Virginia who, pursuant to W.Va.Code ยง 31-1-15, had been designated attorney-in-fact for foreign corporations. The Secretary of State mailed the complaint to Glasgow's West Virginia agent, C.T. Corporation System, in Charleston, West Virginia. It was there received by W.M. Woodroe, who forwarded it to the C.T. Corporation in Philadelphia. Finally, it was transmitted to the offices of Glasgow's general counsel. By inadvertence and mistake thereafter occurring, the complaint was not answered; and, on August 13, 1979, a default judgment was entered without further notice to Glasgow. On March 19, 1980, the action was certified for jury trial to determine damages. Again, no notice was given to Glasgow,

[ 338 Pa. Super. Page 464]

    and the trial to assess damages proceeded ex parte on June 25, 1980. The verdict awarded damages to Stephen Noetzel in the amount of $100,000 and to Marilyn Noetzel in the amount of $200,000.

On February 27, 1981, the Noetzels issued a writ of execution and garnished moneys payable to Glasgow by the West Virginia Department of Highways. Glasgow then learned of the judgment which had been entered against it for the first time and moved, on March 23, 1981, for relief from the judgment. Its request was denied by the West Virginia court on April 9, 1981. The court held that service had been lawful, that Glasgow had been entitled to no further notice after it had failed to enter an appearance, and that Glasgow had failed to prove fraud in obtaining the judgment. Moreover, the Court held, the averments of Glasgow's motion that default had occurred as a result of inadvertence, mistake, surprise or fraud "were not made within eight (8) months of the entry of the judgment order herein and therefore [pursuant to W.Va.R.Civ.P. 60(b)] cannot be considered as grounds to set aside the . . . order." No appeal was taken from that order. However, on May 22, 1981, Glasgow filed a petition for writ of prohibition in the Supreme Court of Appeals of West Virginia seeking to prohibit further proceedings on the judgment. Relief was denied on June 2, 1981. An attempt to obtain relief in the United States District Court for the Southern District of West Virginia was also unsuccessful. See: Glasgow, Inc. v. Noetzel, 556 F.Supp. 595 (S.D.W.Va. 1983).

As a result of attachment execution issued against the Department of Highways in West Virginia, the Noetzels were able to collect $218,811.54 on account of their judgment. Then, on December 22, 1981, they filed in the Court of Common Pleas of Montgomery County, Pennsylvania, a praecipe for judgment "in the amount of [$300,000] in favor of [p]laintiffs, Stephen S. Noetzel and Marilyn B. Noetzel pursuant to the Uniform Enforcement of Foreign Judgments Act." The Court of Common Pleas denied a motion to open/strike the judgment thus recorded in Montgomery

[ 338 Pa. Super. Page 465]

County, and Glasgow appealed. It contends that "the Noetzels manipulated the procedural rules [in West Virginia] in a manner that deprived Glasgow of its due process rights to notice and an opportunity to be heard" and that "Rule 60(b) of the West Virginia Rules of Civil Procedure is unconstitutional because it provides an absolute bar to relief from judgments entered without notice or hearing by plaintiffs who deliberately conceal the judgments until the limited time for seeking relief ha[s] expired." Because its due process rights were violated, Glasgow contends, the judgment against it is not entitled to ...


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