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BETTY BURKETT v. ALLSTATE INSURANCE COMPANY (11/25/87)

filed: November 25, 1987.

BETTY BURKETT, APPELLEE,
v.
ALLSTATE INSURANCE COMPANY, APPELLANT



Appeal From Order Entered December 19, 1986 Court of Common Pleas, Civil Division Philadelphia County No. 1047 July, 1986.

COUNSEL

David M. McCormick, Philadelphia, for appellant.

Peter G. Goodman, Philadelphia, for appellee.

Cavanaugh, Rowley and Montemuro, JJ.

Author: Cavanaugh

[ 368 Pa. Super. Page 602]

The issue involved in this case is whether the court below erred regarding the law or abused its discretion in refusing to open a default judgment entered in favor of the plaintiff. A civil action was commenced by Betty Burkett, the plaintiff below, who is the appellee herein, against Allstate Insurance Company, the appellant. The basis of the complaint

[ 368 Pa. Super. Page 603]

    was an alleged breach of contract entered into between the appellee and the appellant concerning settlement of a case. The complaint, which was endorsed with a notice to plead, was filed on July 10, 1986 and the appellant was served on July 18, 1986. Subsequently, counsel for the appellant entered his appearance and also wrote to counsel for the appellee stating: "I note that the period within which to plead or otherwise move is about to expire and therefore respectfully request that the defendant, Allstate Insurance Company, be granted a reasonable extension of time within which to plead or otherwise move. If I do not hear from you to the contrary, I shall assume that such an extension has been granted."

On or about August 4, 1986 counsel for the appellee responded stating:

"I am in receipt of your letter dated July 24, 1986 requesting an extension of time to plead or otherwise move to plaintiff's complaint. Please be advised that I will grant an extension of time until August 18, 1986 to answer the plaintiff's Complaint. I will not grant any extensions of time to otherwise move to plaintiff's Complaint."

The appellant did not file an answer or other pleading or motion by August 18, 1986 and on August 21, 1986 the appellee filed a praecipe with the prothonotary directing the entry of judgment by default against the appellant. On September 12, 1986 the appellant filed a petition to open the judgment which was denied by the court below speaking through DiBona, Jr., J. by order of December 19, 1986. It is from this order that an appeal has been taken.

A petition to open a default judgment is addressed to the equitable powers of the court and the grant or denial of the petition is within the discretion of the court. Provident Credit Corp. v. Young, 300 Pa. Super. 117, 446 A.2d 257 (1982); Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984); Autologic, Inc. v. Cristinzio Movers, 333 Pa. Super. 173, ...


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