Kuntz v. Lanbar Hotel Co., Inc.

• Decision Date: 03 January 1955
• Citation: 110 A.2d 249,380 Pa. 90
• Parties: Dorothy KUNTZ and Raymond Kuntz v. LANBAR HOTEL CO. Inc., a Pennsylvania Corporation, Owner and Operator of Hotel under the style of Broadwood Hotel (two cases). Dorothy Kuntz, Appellant in No. 192. Raymond Kuntz, Appellant in No. 193.
• Court: Pennsylvania Supreme Court

110 A.2d 249

380 Pa. 90

Dorothy KUNTZ and Raymond Kuntz v. LANBAR HOTEL CO. Inc., a Pennsylvania Corporation, Owner and Operator of Hotel under the style of Broadwood Hotel (two cases).

Dorothy Kuntz, Appellant in No. 192. Raymond Kuntz, Appellant in No. 193.

Supreme Court of Pennsylvania.

January 3, 1955

Action in trespass for injuries suffered in fall on steps of hotel. Plaintiffs took default judgment. Hotel filed petition and rule to show cause why judgment should not be opened. The Court of Common Pleas, No. 5, County of Philadelphia as of December Term, 1953, No. 6287, Eugene V. Alessandroni, J made rule absolute. Plaintiffs appealed. The Supreme Court Nos. 192, 193, January Term, 1954, Stearne, J., held that where hotel's insurer had been negotiating with plaintiffs, and hotel's attorney filed order for appearance on day after plaintiffs took judgment, trial court did not abuse its discretion in opening judgment.

Order affirmed.

Daniel F. Metzman, Philadelphia, for appellant.

John W. Fawcett, III, Richard E. McDevitt, Montgomery, McCracken Walker & Rhoads, Philadelphia, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ALLEN M. STEARNE, Justice.

The appeals are from an order of a court of common pleas opening a default judgment.

Plaintiffs, husband and wife, instituted an action in trespass against defendant, a hotel company, alleging that both of them were injured through the negligence of defendant. It is averred that the steps on which plaintiffs fell were not maintained by defendant in a safe condition. Damages were claimed aggregating $30,000.

The accident occurred November 1, 1953. Suit was commenced February 5, 1954 and the complaint served on defendant the same day. Plaintiffs entered judgment against defendant for want of an appearance, on March 9, 1954. On the following day, March 10, 1954, defendant's attorney filed an order for appearance, but learned that judgment had been entered by default. On March 11, 1954, defendant filed a petition and rule to show cause why the judgment should not be opened. Plaintiffs answered the petition averring New Matter. This ‘ New Matter’ mentioned many instances where plaintiffs' counsel was said to have negotiated with a representative of defendant's insurance carrier, not counsel for defendant. Plaintiffs entered the judgment after a ten-day extension of time had been granted to the insurance carrier to file an appearance. The rule to open was made absolute.

When a default judgment is opened the inquiry is whether or not the court abused its discretion. In Glass v. Farmers National Bank of Watsontown, Trustee, 364 Pa. 186, 70 A.2d 356, this Court, speaking through Mr. Justice Jones, said, 364 Pa. at page 190, 70 A.2d at page 358:

‘ The crucial question, then, is whether the action of the learned court below constituted an abuse of discretion. That an exercise of discretion, relieving from a judgment entered by default, is reviewable only for an abuse is so firmly established in the law as to require little citation of authority. In Scott v. McEwing, 337 Pa. 273, 274-275, 10 A.2d 436, we observed that ‘ The power of a court to grant relief from a judgment entered by default due to a mistake or oversight of counsel is one frequently exercised in the interest of justice, and we have repeatedly said that this Court will not interfere with the lower court's action unless it is clearly shown that its discretion has been abused: [citing cases].’ Furthermore, the propriety of the relief is to be adjudged on the basis of equitable principles; such proceedings are equitable in nature and are to be ruled accordingly: see Horn v. Witherspoon, 327 Pa. 295, 296, 192 A. 654, and cases there cited. In the present instance, the learned court below found on substantial evidence, which it justifiably accepted as credible, that the delay in not having the plaintiff's complaint ready for filing until two days after the day certain fixed by the court's order for that purpose was due to unusual exactions upon counsel's time and upon his clerical facilities; and that the delay was excusable. The plaintiff's application for the relief was prompt. In fact, it was almost immediate. In such circumstances, we could not properly say that the court abused its discretion in striking off the default judgment.'

See also: Myers v. Harrisburg Taxicab and Baggage Co., Inc., 368 Pa. 20, 82 A.2d 14.

Appellants complain that the court exercised its discretion merely upon petition and answer. The petition to open judgment was executed...