On Appeal from the United States District Court For the Eastern District of Pennsylvania, D.C. Civil No. 86-5651.
Sloviter and Stapleton, Circuit Judges, and Brotman, District Judge.*fn*
The issue presented by this appeal is whether the district court's order denying defendant's motion to set aside a default judgment constituted an abuse of discretion. Because the procedure followed in the district court failed to accord with that established by this court, we conclude that the order appealed from must be reversed.
Appellant Louis Sambrick, who was the defendant in the district court, was sued in separate actions in September, 1986 in Pennsylvania state court by Donna Joann Selvoski and Timothy F. Duggan. Selvoski and Duggan both alleged that they were injured by Sambrick on September 19, 1985, when he, while visibly intoxicated, assaulted them in a bar.
Sambrick carried homeowners insurance with EMCASCO Insurance Company covering, inter alia, claims made for bodily injury and the defense of such lawsuits. Excluded from coverage was injury or damage "expected or intended by the insured." App. at 13.
EMCASCO filed a diversity suit in the United States District Court for the Eastern District of Pennsylvania shortly after the Selvoski suit was filed seeking a declaratory judgment that the injuries incurred by Selvoski, if proven, were "expected and intended" by Sambrick and therefore excludable from coverage under Sambrick's policy. EMCASCO filed an amended complaint on November 6, 1986, seeking a similar declaration of nonliability as to the claims of Duggan as well.
Even though Sambrick had not yet been served with either the complaint or the amended complaint, District Judge Weiner held a telephone conference on December 1, 1986, with counsel for EMCASCO and Ralph M. Russo, counsel for Selvoski in state court. Russo identified Selvoski as a "proposed intervenor." Shortly after the telephone conference EMCASCO's counsel sent a letter dated December 4, 1986 to the court, with a copy to Russo, which confirmed the following arrangements:
1. "It is [the] responsibility [of EMCASCO's counsel] to serve ... Sambrick ... and file an Affidavit of Service with the Court as soon as service has been effectuated";
2. EMCASCO's attorney "will file the appropriate Motion to bring this matter before the Court for disposition on or before December 30, 1986";
3. EMCASCO's discovery "will be completed by January 30, 1987 and after conclusion of Plaintiff's discovery, the Court will allow any appropriate amendment to whatever Motion has been filed on behalf of the Plaintiff";
4. "Defendant's [Sambrick's] discovery will be completed by February 20, 1987"; and;
5. "The pretrial conference in this matter scheduled for December 5, 1986 ... ...