Opinion
March 21, 1961.
April 13, 1961.
Practice — Judgments — Opening — Serious neglect of counsel for defendant.
On appeal from an order making absolute defendant's rule to open judgment which had been taken by default, in which it appeared that when defendant received notice of a claim arising out of a motor vehicle collision he called at the office of his insurance company, which advised him that it would not represent him because of the delay in notifying it of the accident but suggested that he consult a particular lawyer; that he consulted this lawyer, who agreed to represent him; that when he was served with the complaint he forwarded it to the lawyer, who told him to "sit tight", and that when he later received a notice of a hearing for assessment of damages he forwarded it also to the lawyer; and that the lawyer testified on depositions that he failed to act because he thought defendant was not financially responsible and that the plaintiff would drop the prosecution; it was Held that the order of the court below opening judgment should be affirmed.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 42, Oct. T., 1961, from order of Municipal Court of Philadelphia County, April T., 1959, No. 3871, in case of Charles J. Webb Sons Co., Inc. v. K. Stanley Webber. Order affirmed.
Same case in court below: 23 Pa. D. C. 2d 568.
Proceeding upon petition of defendant and rule to show cause why judgment taken by default in action of trespass for property damage should not be opened.
Order entered making rule to open absolute, opinion by BURCH, J. Plaintiff appealed.
P. Breen, with him Dolnick Gardner, for appellant.
Albert L. Bricklin, with him Bennett Bricklin, for appellee.
MONTGOMERY, J., filed a dissenting opinion.
Argued March 21, 1961.
The Order of the Municipal Court of Philadelphia County is affirmed on the opinion of Judge FRANCIS F. BURCH for the court below, reported at 23 Pa. D. C. 2d 568.
I respectfully dissent in this matter. The majority of this Court in affirming the lower court and adopting its opinion assigns as the reason for opening plaintiff's judgment against defendant that defendant's counsel was chargeable with "serious neglect" of his duties to defendant. I fail to find evidence of such serious neglect. On the contrary, the defendant neglected to take the simplest precautions to protect his rights and is the one principally responsible for his predicament.
After having an accident on January 16, 1957, defendant failed to report it to his insurance carrier until after the period allowed by the insurance contract had expired. When the company refused to represent him for that reason and told him to secure private counsel and, at his request, suggested Roger Soens, Esq., he went to see Mr. Soens with a letter from plaintiff's attorney threatening suit.
The depositions taken by plaintiff indicate that Mr. Soens suggested that the defendant settle the claim or, in the alternative, retain a lawyer, pay a fee, and be properly represented. Finally, when defendant said he had no money to settle and indicated no desire to hire counsel, Mr. Soens said that he knew the other party and would try to talk him out of suing. This was the only meeting or conversation between the parties.
The accident happened in January, 1957. The meeting between defendant and Mr. Soens was in April, 1957. Two years later (April, 1959), defendant was served with a complaint. Instead of taking it to Mr. Soens, as he should have done since such a long period of time had transpired and he knew that he had not paid him a fee or engaged his services, defendant merely put the complaint in an envelope addressed to Mr. Soens and mailed it. He did not bother to contact Mr. Soens thereafter or to tender him a fee. Even when he received a notice that damages were being assessed against him, he did nothing but mail that notice to Mr. Soens. It was not until he was advised that judgment had been entered against him that he ever attempted to see or talk to Mr. Soens again.
Although the attorney should have returned the complaint and notice to defendant immediately, which he failed to do, I would not say that the entire blame for the default judgment should be placed at the attorney's door. However, I would not call this a matter of serious neglect on the part of the attorney. It is reasonable that, having received a complaint from a man who had not hired him, he would assume that he would receive a call by telephone or at his office from that man. Since he did not, his failure to return the complaint and notice was in all probability just an oversight, not serious neglect.
However, my reason for dissenting is that the defendant was more neglectful than the attorney. That being the case, he was not entitled to have the judgment opened. It is a general rule that courts will not open judgments where it appears that the applicant has been neglectful of his rights. 7 Standard Pennsylvania Practice § 72. Defendant neglected to notify his insurance carrier at the beginning, he refused the advice of Mr. Soens to settle or to engage counsel, he knew of the acquaintance of Mr. Soens with the plaintiff and tried to benefit by it without payment, and finally he neglected to take reasonable steps to protect his rights when he received the complaint and notice.
He says that he assumed that the attorney would protect his rights. I think that he assumed too much and that he has failed to meet his burden of establishing his rights to equitable relief.
I would reverse the order of the lower court opening the judgment.