Appeal No. 59 W.D. Appeal Dkt. 1987 from Order of Superior Court, 363 Pa. Super. 632, 522 A.2d 658 (1987) entered January 23, 1987, at No. 365 Pittsburgh 1986, Reversing and Remanding Order of Court of Common Pleas of Allegheny County, Civil Division, entered March 3, 1986, at No. 10434 of 1985.
Maurice A. Nernberg, Jr., Nernberg & Laffey, Pittsburgh, for appellant.
Michael R. Kelly, Janice L. Morison, Pittsburgh, for appellee.
Papadakos, J., files a dissenting opinion. Flaherty, J., dissents.
Appeal dismissed as having been improvidently granted.
PAPADAKOS, Justice, dissenting.
I must respectfully dissent from the Court's disposition of this matter. We granted the petition for allowance of appeal of the A.F. Shane Co., Appellant, in order to review the propriety of Superior Court's reversal (Johnson, J. dissenting) of the Allegheny County Court of Common Pleas' refusal to open a default judgment. There is clearly a conflict between the result in this case and our recent decision in Schultz v. Erie Insurance Exchange, 505 Pa. 90,
A.2d 471 (1984). Therefore, I believe that the merits of the issue should be addressed and that the order of the Superior Court should be reversed.
The underlying facts as revealed by the record indicate that this action was initiated by Appellant to recover equipment rentals from Kipin Industries, Inc., Appellee. The complaint was served on Kipin on November 26, 1985. Kipin took it to the law offices of Richard Neff, Esquire, who had been handling other legal matters for Kipin. On December 18 or 19, Kipin received notice, sent pursuant to Pa.R.C.P. 237.1,*fn1 that Shane intended to enter a default judgment against Kipin if an answer were not filed within ten (10) days. Peter Kipin, the president of the corporation, thereupon called Neff, learned that an answer had not been prepared, and went to Neff's office to retrieve the suit papers. Thereafter, he retained Janice Morrison, Esquire, to represent his corporation in the action. However, Peter Kipin neglected to give Morrison a copy of the Rule 237.1 notice or tell her about it.
Ms. Morrison testified that he never gave her the ten day notice and never told her of the notice. Also, he sent her papers involving numerous lawsuits without bringing to her attention the ...