Cameron v. Great Atlantic & Pac. Tea Co.
| Decision Date | 02 July 1970 |
| Citation | 266 A.2d 715,439 Pa. 374 |
| Parties | James C. CAMERON and Laura M. Cameron, his Wife v. The GREAT ATLANTIC & PACIFIC TEA CO., Inc., Cott Corporation and Cott Bottling Co. of Pittsburgh, Inc. |
| Court | Pennsylvania Supreme Court |
J. Perry Eckels, Eckels, Blystone, Fuller & Kinnunen, Meadville, for appellants.
George J. Barco, Barco & Barco, Meadville, Robert E. Wayman, Wayman Irvin Trushel & McAuley, Pittsburgh, for appellees.
Before BELL C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS, and POMEROY, JJ.
This is an appeal from on order entered below 'refusing' without evidentiary hearing a petition to strike or open a judgment.
The facts necessary to a decision are undisputed and may be summarized as follows:
On April 12, 1967, Laura M. Cameron was injured when a 'pop' bottle manufactured by defendant Cott Corporation and distributed by Cott Bottling Company of Pittsburgh (for convenience these two defendants are hereinafter collectively referred to as Cott) exploded at the checkout counter of a supermarket of defendant The Great Atlantic & Pacific Tea Company (A. & P.) in Crawford County. [1] Mrs. Cameron lost an eye and suffered residual damage to the other eye as a result of the explosion and, thereafter, she and her husband sought damages from Cott and A. & P. in an action in assumpsit.
The firm of Wayman, Irvin, Trushel & McAuley entered an appearance on behalf of all defendants. However, in the course of its preparation of the case, the Wayman firm became aware of a potential conflict of interest between the A. & P. and Cott and it thereupon petitioned the court to withdraw its appearance on behalf of A. & P. Subsequently, the firm of Eckels, Blystone, Fuller & Kinnunen entered its appearance on behalf of A. & P. and petitioned the court of disqualify the Wayman firm from representing Cott, alleging a conflict of interest. This petition was denied by the court and the suit proceeded to trial on April 21, 1969. On the following day, after plaintiffs had completed their case except for medical testimony, all of the parties agreed to a settlement of the case, and prepared and signed the following Stipulation of Settlement:
'And Now, this 22nd day of April, 1969, after the Plaintiff has completed their case, except for the medical aspects thereof, counsel have agreed upon a settlement and have asked that the same be reduced to stipulation, to be transcribed by the Court Reporter and signed by counsel for Cott and A. & P.
'It is stipulated and agreed that the case be settled with the Plaintiffs for the amount of fifty-five thousand ($55,000.00) dollars, and that if the defendants, the Great Atlantic and Pacific Tea Company, shall produce a copy of the certificate of the American Mutual Liability Insurance Company of Boston, Massachusetts, granting general comprehensive product liability coverage, affording coverage to the Great Atlantic and Pacific Tea Company, including the claim of James C. Cameron and Laura M. Cameron against the Great Atlantic and Pacific Tea Company, Cott Corporation and Cott Bottling Company of Pittsburgh, Pennsylvania, Incorporated, arising out of an accident occurring April 12, 1967, the American Mutual Liability Insurance Company, Boston, Massachusetts, on behalf of the two Cott Corporation defendants, the said American Mutual Liability Insurance Company of Boston, Massachusetts, will pay the entire amount of the settlement, including costs and disbursements.
'In the event the Great Atlantic and Pacific Tea Company is either unable to produce a valid certificate of insurance or that coverage is not afforded under said certificate of insurance, then the Cott Corporation defendants will pay one-half of the said settlement and the defendant, the Great Atlantic and Pacific Tea Company, will pay one-half of the settlement to the Plaintiffs.
'Essentially, what we are saying, if there is coverage afforded the Great Atlantic and Pacific Tea Company under the certificate of insurance, which the Great Atlantic and Pacific Tea Company contends it has, then the responsibility for the total setllement is on Cott. If there is no coverage under the certificate or they do not have such a certificate, then the liability will be fifty (50%) percent Cotts and fifty (50%) percent the Great Atlantic and Pacific Tea Company.
Robert E. Wayman
Attorney for Defendant, Cott.
J. Perry Eckels
Attorney for Defendant, A&P.'
When informed that a settlement had been reached, the court, after reviewing the terms that would be in the signed Stipulation, withdrew the jury and 'marked the case settled.' The only relevant docket entry reads: 'Case Reported settled.' (Emphasis added.)
The settlement agreement was clear as to the amount of plaintiffs' recovery. However, it was not definite as to who would recompense the plaintiffs. Almost two months after the agreement had been reached, the defendants were still unable to satisfactorily resolve this question and the plaintiffs remained unpaid.
The plaintiffs thereupon filed a Motion for Entry of Judgment against all defendants in the amount of $55,000, in accord with the agreement of April 22, 1969. A Rule to Show Cause was granted. No answer to this petition was filed by any of the defendants and on the return day of the rule after an informal hearing in which both defendants argued their respective liability under the terms of the settlement agreement, the court entered judgment against all defendants in the amount stated in the agreement on July 8, 1969. A. & P. immediately petitioned the court to open or strike the judgment entered. The court granted a Rule to Show Cause why the judgment should not be stricken off or opened. After further argument, A. & P.'s petition was 'refused.' A. & P. filed this appeal. [2]
We need presently only consider A. & P.'s petition to strike. A petition to strike off a...
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