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MELVIN GERBER AND SYLVIN GOLDSTEIN v. BARBARA EMES (06/10/86)

filed: June 10, 1986.

MELVIN GERBER AND SYLVIN GOLDSTEIN, T/A M & M INVESTMENT, APPELLEES,
v.
BARBARA EMES, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JAMES T. EMES, AND JIM EMES PETROLEUM CO., APPELLANT



Appeal from Order entered April 26, 1985, in the Court of Common Pleas of Lancaster County, Pennsylvania, July Term of 1982, No. 172 in Trespass and Assumpsit.

COUNSEL

Robert H. Lang, Pittsburgh, for appellant.

Robert S. Trigg, Lancaster, for appellees.

Rowley, Montemuro and Kelly, JJ. Rowley, J., concurring statement. Montemuro, J., concurs in the Result.

Author: Kelly

[ 354 Pa. Super. Page 78]

This case was initiated by the plaintiffs/appellees filing a complaint with counts sounding both in trespass and assumpsit, and serving the defendant/appellant with the complaint on July 26, 1982. No entry of appearance was filed on defendant's behalf. A default judgment was entered on September 13, 1982. Appellant timely filed a petition to open or to strike that judgment on September 22, 1982. After hearings, submission of briefs, and the taking of depositions, the lower court entered an order on April 26, 1985 granting the petition to strike the judgment as to the counts sounding in assumpsit, and denying the petition to strike or open the default judgment as to the trespass counts. Appellant timely appealed the denial. For the reasons stated below, we reverse.

The facts of this case are as follows. Appellant Barbara Emes was served with the Complaint on July 26, 1982. She contacted her counsel, John O'Brien, Esquire, and he assured her that he would attend to the Complaint. In fact, he did not attend to the matter. By letter dated August 27, 1982 he informed appellant that he was going to withdraw from the case. The letter further stated he would be out of his office until September 7, 1982. On September 1, appellant received the "Ten Day Notice", Notice of Praecipe for Final Judgment or Decree as required by Pa.R.C.P. 237.1. Appellant contacted Mr. O'Brien on September 7 to arrange to retrieve her files to take to her new counsel. It is unclear whether Mr. O'Brien ever informed appellant or her new counsel that he had never entered an appearance on her behalf.

Appellant's new counsel, representing her in this appeal, realized that until he obtained appellant's files he could not properly act on her behalf; on September 8 he contacted appellees' counsel seeking an extension of 20 days within which to respond to the complaint. It is disputed whether the extension was granted. Nonetheless, appellees' counsel praeciped for a default judgment on September 13, 1982. Default judgment accordingly was entered.

[ 354 Pa. Super. Page 79]

Appellant filed a petition to open or to strike the judgment, claiming, inter alia, that appellant was under no obligation to file a responsive pleading since appellees' complaint was improper for failure to contain a Notice to Defend, Pa.R.C.P. 1018.1. The lower court agreed in part and struck the judgment with regard to the counts sounding in assumpsit, relying on Pa.R.C.P. 1037(b) and 1026. The lower court declined to strike the complaint with regard to the counts sounding in trespass, relying upon the fact that Rule 1047(a) contains no mention of need to contain a notice to defend for counts sounding in trespass.

Appellant's first issue on appeal is whether the trial court erred in refusing to strike the default judgment entered against him for failure to timely respond to the four counts sounding in trespass. Appellant argues that no response was required because appellees' complaint was defective on its face for failing to contain a notice to defend. Because we hold that actions sounding in trespass must conform to Pa.R.C.P. 1026 and contain a notice to defend, we uphold appellant and reverse the lower court.

We agree that Rule 1047(b)(1) contains no specific requirement to include a notice to defend on a trespass complaint. Pennsylvania Rule of Civil Procedure 1047, which was in effect at the time of this action's initiation, governed entry of judgment upon default in trespass actions.*fn1 It states in part:

Rule 1047. Judgment Upon Default

(a) After a complaint has been filed and time for pleading thereto has expired, the prothonotary, on praecipe of the plaintiff, shall enter judgment against a defendant who has neither pleaded to the complaint nor appeared at any time in the action. In such case, the damages except as provided in Subdivision (b) shall be assessed at a trial at which the issues shall be limited to the amount of the damages.

[ 354 Pa. Super. Page 80]

However, we find that Rule 1047(b)(1) cannot be read in isolation from other applicable rules, as the lower court apparently did. Because Rule 1047 and the other rules of trespass do not specify what time period governs response, we look to Rule 1041 which provides:

Rule 1041. Conformity to Assumpsit

Except as otherwise provided in this chapter, the procedure in the action of trespass shall be in accordance with the rules relating to the action of assumpsit.

Therefore it is appropriate to look at parallel assumpsit rules to provide the specifications ...


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