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LAWRENCE J. FIERST AND BETTY J. FIERST v. COMMONWEALTH LAND TITLE INSURANCE COMPANY (12/28/87)

filed: December 28, 1987.

LAWRENCE J. FIERST AND BETTY J. FIERST, HIS WIFE, APPELLEES,
v.
COMMONWEALTH LAND TITLE INSURANCE COMPANY, APPELLANT



Appeal from Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 10349 of 1981.

COUNSEL

Richard G. Kotarba, Pittsburgh, for appellant.

David J. Millstein, Greensburg, for appellees.

Wieand, Kelly and Popovich, JJ. Popovich, J., concurs in the result.

Author: Wieand

[ 369 Pa. Super. Page 357]

This is an appeal by Commonwealth Land Title Insurance Company (Land Title) from an order refusing to strike a default judgment entered against it by Lawrence J. Fierst and Betty J. Fierst. The determinative issue can be understood only after a review of the history of this protracted litigation.

On December 10, 1981, the Fiersts filed a complaint against Land Title which sounded in assumpsit and tort.*fn1 The complaint was served on Land Title on December 15, 1981. Thereafter, an extension of thirty days within which to file a responsive pleading was granted orally by plaintiffs' counsel to counsel for the defendant. Despite several conversations between counsel for the parties after this extension had expired, a responsive pleading was not forthcoming. Therefore, on April 1, 1982, plaintiffs' counsel gave written notice of intent to enter a default judgment under Pa.R.C.P. 237.1. When there still was no responsive pleading, the Fiersts, on April 13, 1982, caused a default judgment to be entered. The praecipe for judgment recited that "[n]notice of intent to enter default judgment [had been]

[ 369 Pa. Super. Page 358]

    served upon the counsel for the Defendant on April 1, 1982." A copy of the notice, addressed to Land Title, was attached to the praecipe.

A petition to open the default judgment was filed on June 25, 1982. In order to assist the court in deciding the same, the parties filed a stipulation of facts. Included were the following agreed facts:

9. On April 1, 1982, Plaintiffs' counsel in compliance with the Pennsylvania Rules of Civil Procedure sent out the appropriate notices of intent to take default judgment.

12. On April 13, 1982 at 10:42 a.m., Plaintiffs' counsel filed a Praecipe for Default Judgment along with proper certification in compliance with the Pennsylvania Rules of Civil Procedure and judgment was entered accordingly.

Land Title's petition to open the default judgment was denied on December 28, 1982 because, the trial court held, Land Title had not moved promptly to open the judgment. No immediate appeal was filed. Instead, Land Title petitioned the trial court to reconsider its order, alleging for the first time that the Fiersts had failed to comply with the notice requirements of Pa.R.C.P. 237.1. The petition for reconsideration was denied on August 28, 1984; and on September 25, 1984, Land Title appealed to the Superior Court. It argued, ...


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