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COLONIAL SCHOOL DISTRICT v. ROMANO'S SCHOOL BUS SERVICE ET AL. NATIONAL UNION FIRE INSURANCE COMPANY (08/10/88)

decided: August 10, 1988.

COLONIAL SCHOOL DISTRICT
v.
ROMANO'S SCHOOL BUS SERVICE ET AL. NATIONAL UNION FIRE INSURANCE COMPANY, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Montgomery County, in the case of Colonial School District v. Romano's School Bus Service, Inc., et al., No. 85-07772, dated June 12, 1987, and No. 84-229, dated August 6, 1987.

COUNSEL

Jay E. Mintzer, Edelstein, Mintzer & Diamond, for appellant.

John J. O'Brien, Jr., for appellee, Colonial School District.

Judges Barry and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge McGinley.

Author: Mcginley

[ 118 Pa. Commw. Page 462]

National Union Fire Insurance Company (National Union) appeals from two orders of the Court of Common Pleas of Montgomery County dismissing, respectively, two answers which National Union had filed. We reverse.

The issues presented are procedural in nature; hence, a more detailed recitation of the procedural posture of the matter is in order. Colonial School District (Colonial) brought a declaratory judgment action against numerous defendants, including National Union and its insured (with whom Colonial had contracted for the transportation of its students). Colonial sought a declaration that the defendants were obligated to defend and indemnify colonial in an underlying personal injury action.*fn1 National Union did not file an answer until twenty three months after the complaint was filed.*fn2 Colonial moved to strike the answer due to its having been untimely filed. On June 12, 1987, the trial court entered an order granting this motion and struck the answer. Colonial filed a Praecipe for Judgment by Default,

[ 118 Pa. Commw. Page 463]

    but the Prothonotary refused to accept this Praecipe because National Union had not been notified ten days in advance of Colonial's intention to file the Praecipe pursuant to Pa. R.C.P. 237.1.*fn3 Colonial subsequently mailed this notice and National Union filed a second answer. Colonial filed a motion to Strike the Second Answer. By order dated August 6, 1987, the trial court struck the second answer and specifically instructed the Prothonotary to accept Colonial's Praecipe for Judgment by Default. National Union took timely appeals to this Court from both the June 12, 1987 and the August 6, 1987 orders.

National Union contends that the trial court erred when it ordered that National Union's first answer be stricken, because Colonial had not been prejudiced, or, in the alternative, because Colonial caused its own prejudice by failing to move for a judgment by default sooner. National Union also contends that by serving a notice of intention to file the praecipe pursuant to Rule 237.1, Colonial extended the time in which National Union was permitted to file an answer. We agree with

[ 118 Pa. Commw. Page 464]

National Union's contention of error with respect to the trial court's order of June 12, 1987, striking National Union's first answer. Consequently, we do not address the propriety of the trial court's second order, nor the effect of the service of the Rule 237.1 notice.

Pa. R.C.P. 1026 governs the time for filing of answers and other responsive pleadings. This rule states ...


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