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MARIO GALLELLI v. FIREMEN'S INSURANCE COMPANY AND UNDERWRITER'S ADJUSTING COMPANY (12/12/89)

filed: December 12, 1989.

MARIO GALLELLI, APPELLANT,
v.
FIREMEN'S INSURANCE COMPANY AND UNDERWRITER'S ADJUSTING COMPANY



Appeal, No. 458 Philadelphia 1989, from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, No. 6151 Aug. T., 1988; Lehrer, J. Appeal quashed.

COUNSEL

Bernard M. Gross, Philadelphia, for appellant.

Paul A. Lawless, Philadelphia, for appellee.

Cirillo, President Judge, and Rowley and Montemuro, JJ. Rowley, Judge, dissenting.

Author: Per Curiam

[ 389 Pa. Super. Page 376]

Appeal quashed.

ROWLEY, Judge, dissenting.

Although I respect the majority's determination to follow and apply the mandate established by a panel of this Court in Palermo Development Corp. v. Bowers, 388 Pa. Super. 49, 564 A.2d 996 (1989), I nevertheless dissent in order to distance myself as far as possible from the decision in Palermo, the effect of which is to substitute the phrase "the irrevocable loss of a litigant's rights" for the phrase "just and practicable" in amended Pa.R.A.P. 311(a)(1).

This action had its genesis in a September 16, 1987, automobile accident on Passyunk Avenue in Philadelphia, Pennsylvania. The appellant, Mario Gallelli, sustained serious personal injuries while road testing a motor vehicle owned by Maria Gallazo. Appellant subsequently filed an insurance claim to recover the medical costs and expenses associated with his accident. His insurance carrier, Firemen's Insurance Company (Firemen's), one of the appellees herein, reviewed the claim and responded with a letter denying appellant's claim and asserting that his coverage under the policy did not extend to this accident.

On September 1, 1988, Gallelli instituted suit against Firemen's and Underwriter's Adjusting Company (Underwriter's) for their failure to pay first party benefits. Both Firemen's and Underwriter's were served with a copy of the complaint on September 14, 1988. Neither appellee answered the complaint or filed a responsive pleading within twenty days as required by Pennsylvania Rule of Civil Procedure 1026. Pursuant to the mandate of Pennsylvania Rule of Civil Procedure 237.1, Gallelli's counsel notified Firemen's

[ 389 Pa. Super. Page 377]

    and Underwriter's by certified and regular mail that he intended to take judgment by default unless they answered the complaint within ten days. This notice was dated October 12, 1988. On October 18, 1988, after being informed of the receipt by appellees of the ten day notice of intention to take default judgment, counsel for the appellees allegedly contacted appellant's counsel's secretary, and left a message requesting an extension of time to answer the complaint. In a letter dated October 25, 1988, appellees' counsel attempted to confirm the extension of time by stating: "[t]his will confirm that you have allowed us a reasonable extension of time within which to Answer the Complaint filed in the above-captioned matter. I am preparing and filing an Answer presently." The following day, however, appellant's counsel filed the appropriate documents for the entry of a default judgment against Firemen's and Underwriter's.

On November 9, 1988, Firemen's and Underwriter's filed a petition to open or strike the default judgment entered on October 26, 1988. On January 13, 1989, the Honorable Samuel M. Lehrer entered an order in which he granted Firemen's and Underwriter's petition to open ...


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