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HOPETON CROSS AND JETHRO COOKE v. 50TH WARD COMMUNITY AMBULANCE COMPANY (07/21/87)

filed: July 21, 1987.

HOPETON CROSS AND JETHRO COOKE, APPELLEES,
v.
50TH WARD COMMUNITY AMBULANCE COMPANY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 5380 April Term 1985.

COUNSEL

Christopher J. Pakuris, Philadelphia, for appellant.

Edward T. Feierstein, Philadelphia, for appellees.

Cirillo,*fn* President Judge, and McEwen and Montemuro, JJ.

Author: Montemuro

[ 365 Pa. Super. Page 76]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant's petition to open a default judgment.*fn1 Because appellant's petition is inadequate, we affirm.

[ 365 Pa. Super. Page 77]

This litigation arose out of an accident between an ambulance owned by appellant and a car occupied by appellees. On April 26, 1985, appellees Hopeton Cross and Jethro Cooke filed a complaint alleging that their injuries were caused by the negligence of the driver of the ambulance owned by appellant 50th Ward Community Ambulance Company. The record indicates that on May 7, 1985, service was made at appellant's headquarters to Charles Motley, Field Director. On June 17, 1985, appellees sent to appellant a notice of intent to take a default judgment. On June 28, 1985, a default judgment was entered against appellant on the issue of liability only. Notice of judgment was sent to appellant pursuant to Pa.R.C.P. 236. Appellant claims that it did not receive the notice of intent to take a default judgment until August 6, 1985. On May 30, 1986, nine and a half months after receiving notice of the default judgment, appellant filed a petition to open or strike the default judgment.*fn2 Appellees answered. On July 15, 1986, the court of common pleas reviewed the petition, the answer and the parties' memoranda of law and denied appellant's petition on the ground that it was not filed promptly.

This appeal raises two issues: (1) was the record ripe for judicial action when the court denied the petition, despite neither party having taken any action pursuant to Pa.R.C.P. 209; and (2) did the court abuse its discretion when it denied appellant's petition?*fn3 We find that the record was ripe for adjudication and that the court did not abuse its discretion.

In the first issue presented by this case, appellant contends that we should remand this action to the court of common pleas because it acted prematurely when it denied the petition. Appellant claims that there were disputed

[ 365 Pa. Super. Page 78]

    issues of fact raised by the petition and answer, and that no depositions had been taken pursuant to Pa.R.C.P. 209.*fn4 Appellant further asserts, quite correctly, that appellees did not take a rule as of course on appellant to show cause why appellant should not either take depositions or order the cause for argument. Appellant argues that this inaction by both parties should have ...


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