Baraonfski v. Malone

• Decision Date: 10 November 1952
• Docket Number: 7459
• Citation: 91 A.2d 908,371 Pa. 479
• Parties: BARAONFSKI v. MALONE.
• Court: Pennsylvania Supreme Court

91 A.2d 908

371 Pa. 479

BARAONFSKI v. MALONE.

No. 7459

Supreme Court of Pennsylvania

November 10, 1952

Argued September 30, 1952

Appeal, No. 193, March T., 1952, from order of Court of Common Pleas of Allegheny County, July T., 1951, No. 2559, in case of Mary Baraonfski v. Frank B. Malone. Order opening judgment vacated; assessment of damages set aside.

Proceeding upon petition of defendant and rule to show cause why judgment entered for want of an appearance in action of trespass should not be opened.

Ordered entered making rule absolute. Plaintiff appealed.

ORDER

The order of the court below opening the default judgment and permitting defendant to make a defense is vacated. The assessment of damages is set aside and a new trial is granted to defendant at which the issue shall be limited to the amount of the damages.

Allen N. Brunwasser , for appellant.

No argument was made nor brief submitted for appellee.

Before STERN, STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.

OPINION

MR. CHIEF JUSTICE HORACE STERN

There are two reasons why the defendant in this case was not entitled to have the judgment opened which had been entered against him by default. The one is that he did not establish any adequate excuse for his failure to appear and defend the action. The other is that he failed to make timely application for the relief which he sought.

It appears from the scanty record presented to us on this appeal that plaintiff, having been struck by an automobile driven by defendant, brought the present action for damages on June 4 1951, that defendant was personally served by the sheriff with a summons on June 12, 1951, that judgment was entered against him on July 17, 1951 for want of an appearance, and that he received notice of the judgment by registered mail on October 13, 1951 together with the term and number of the suit and the date listed for the trial to assess damages. It further appears that a trial for that purpose was held on January 14, 1952, that defendant did not appear, and that after hearing plaintiff's testimony, the jury returned a verdict in her favor in the sum of $10,000, on which a final judgment was entered on February 18, 1952. Shortly thereafter an attorney engaged by defendant requested plaintiff's attorney to "wait until the matter was settled with the insurance company or a plan for settlement made." On February 20, 1952, defendant conveyed a property owned by him to his son. On February 29, 1952 a writ of fieri facias was issued and a levy made on defendant's personal property; his attorney then made plaintiff's attorney an offer of settlement which was accepted, but payment was not made in accordance therewith although meanwhile the levy had been removed because of the agreement. On April 1, 1952 an alias writ of fieri facias was issued attaching defendant's realty, which was thereupon condemned and advertised for sale. On May 5, 1952 defendant filed a petition to open the judgment against him; plaintiff filed an answer, some depositions were taken, and the court below opened the judgment, stayed execution, and granted permission to defendant to make a defense. From that order plaintiff now appeals.

Defendant's petition alleged that he received in the accident severe injuries about the head and body and that he has had a lapse of memory and consciousness which disabled him from transacting "routine business or of comprehending the significance of various pleadings and other notices"; it also averred that the accident was not due to any negligence on his part, but was "caused solely by a fainting which came upon him suddenly without warning," caused by hypertension or high blood pressure. To support these allegations the deposition was taken of Dr. D. I. Jamison, who testified that he examined defendant a number of times during the week of April 17, 1952, (which, it will be observed, was almost a year after defendant's failure to file an appearance in the suit) and found that defendant had high blood pressure, osteo-arthritis of the spine, and a carotid sinus syndrome; because of these conditions, he thought that defendant might possibly have had some spells of amnesia but there was no appearance of amnesia during the period of his examination and he admitted that he could not say definitely whether defendant had in fact suffered any amnesia at any time after June 12, 1951. As against this vague and speculative medical testimony it appears that defendant engaged counsel shortly after the rendition of the verdict and issuance of the fi. fa., that defendant consulted this lawyer with a view of having the levy released on his personal property, and that he had...