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STANLEY DARLARK AND DORIS DARLARK v. HENRY S. LEHR (02/13/87)

filed: February 13, 1987.

STANLEY DARLARK AND DORIS DARLARK, HIS WIFE
v.
HENRY S. LEHR, INC. AND HARLEYSVILLE INSURANCE CO. APPEAL OF HENRY S. LEHR, INC.



Appeal from the Order entered June 19, 1986 in the Court of Common Pleas of Lackawanna County, Civil Division, at No. 85 Civil 4298.

COUNSEL

Joseph J. Heston, Wilkes-Barre, for appellant.

Frank T. Blasi, Scranton, for appellees.

Cirillo, President Judge, and Rowley and Beck, JJ.

Author: Beck

[ 360 Pa. Super. Page 510]

This is an appeal from the lower court's order denying appellant's petition to vacate a default judgment that had been entered for failure to file an answer or enter an appearance in a declaratory judgment action. Appellant Henry S. Lehr, Inc. ("Lehr") contends that the lower court erred in denying its petition to vacate because it offered (1) a satisfactory explanation for its failure to answer the complaint, and (2) a meritorious defense to the action. For the reasons that follow, we quash the appeal.

Appellees, the owners of the Dori-Tan Motor Inn Bar and Lounge, were sued by a third party in a personal injury action. Appellees sought a defense through Lehr, the insurance agent, and Harleysville Insurance Company ("Harleysville"), which wrote the insurance covering appellees' lounge. Harleysville notified appellees that they would not provide a defense because their policy did not cover the alleged incident. On September 16, 1985, appellees filed a complaint against Harleysville and Lehr seeking a declaratory judgment to determine Harleysville's and Lehr's duties with respect to the defense of the tort action against appellees. Lehr failed to answer the complaint. On December 5, 1985, appellees sent Lehr notice of their intent to enter a default judgment, and on January 8, 1986, a default judgment was entered by the prothonotary against Lehr. On January 28, 1986, Lehr filed a petition to vacate the

[ 360 Pa. Super. Page 511]

    default judgment, which the lower court denied.*fn1 This appeal followed.

The rules that now govern practice and procedure in declaratory judgment actions are the rules for actions in equity. Pa.R.C.P. 1601(a). Prior to the enactment of the present Declaratory Judgments Act, 42 Pa.Cons.Stat.Ann. §§ 7531-41 (1982), declaratory judgments in Pennsylvania were governed by the Uniform Declaratory Judgments Act, 12 P.S. §§ 831-46 (1923) (repealed 1978), and the specific procedures were governed by a supplemental procedure Act, 12 P.S. §§ 847-53 (1935) (repealed 1978). In construing these Acts, our courts had held that certain kinds of summary disposition, including summary judgment or judgment on the pleadings, could not be had in declaratory judgment actions because the Acts themselves made no provision therefor. Greenberg v. Blumberg, 416 Pa. 226, 206 A.2d 16 (1965); Laspino v. Rizzo, 40 Pa. Commw. 625, 398 A.2d 1069 (1979).

Under the supplemental procedural Act it was not clear whether default judgment was available. Although the Act did not provide specifically for the entry of a default judgment, it provided that in any declaratory judgment action where the defendant failed to answer, the court had discretion either to enter the declaratory judgment or decree, dismiss the petition or enter other appropriate order. 12 P.S. § 849.

Under the present Declaratory Judgments Act, however, equity governs the procedure. Pa.R.C.P. 1601(a); Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 62 Pa. Commw. 88, 434 A.2d 1327 (1981), aff'd per curiam, 498 Pa. 589, 450 A.2d 613 (1982). Because the equity rules apply to declaratory judgment actions, the Commonwealth Court has concluded, for example, that ...


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