Pattinato v. Moody

374 A.2d 1302, 248 Pa. Super. 32, 1977 Pa. Super. LEXIS 1960
CourtSuperior Court of Pennsylvania
DecidedJune 29, 1977
Docket717
StatusPublished
Cited by10 cases

This text of 374 A.2d 1302 (Pattinato v. Moody) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pattinato v. Moody, 374 A.2d 1302, 248 Pa. Super. 32, 1977 Pa. Super. LEXIS 1960 (Pa. Ct. App. 1977).

Opinions

HOFFMAN, Judge:

Appellants contend that the lower court erred in striking a July 19, 1974 default judgment entered against appelleeMoody and a March 12, 1976 default judgment entered against appellees Wudkwych and M & W Construction Company. We agree as to appellee-Moody, but hold that the lower court properly struck the judgment entered against appellees Wudkwych and M & W Construction Company.

[34]*34Appellants filed a complaint in trespass on June 21, 1973.1 After several unsuccessful attempts at service, the Sheriff of Washington County served appellee-Moody on April 24, 1974. When Moody failed to enter an appearance or to file an answer, the prothonotary entered a default judgment against him on July 19, 1974. At the same time, appellants were attempting to serve appellee Wudkwych. The docket reveals that Wudkwych was served on July 18, 1974, by service on the Secretary of the Commonwealth. On August 2, 1974, Bruce Martin, Esquire, filed a “Motion to Strike or to Open Judgment and Motion to Stay Proceedings” in which he recited the facts surrounding the entry of the default against Moody and then stated:

“6. The file of the insurer, Motorists Mutual Insurance Company, contains nothing indicative of notice that Robert Moody was served with anything on April 24, 1974, or at anytime prior to July 30, 1974, although, as previously indicated, counsel learned, on July 31, 1974, that a default judgment had been entered against Robert Moody based on purported service on Robert Moddy on April 24, 1974.

“7. Under the circumstances, counsel is placed in a dilemma which may involve a conflict of interest, and which certainly requires time to resolve, in that:

“(a) If Robert Moody was served with Notice of Suit and Complaint and failed from April 24,1974, to July 19,1974, to inform his insurance carrier, at which time a default judgment was entered against him, he is in violation of the provisions of his insurance policy and has forfeited his right to a defense thereunder.

“(b) If there is some innocent explanation for Robert Moody’s apparent breach of his obligation to his insurance carrier, he is entitled to an opportunity to present that explanation to the Court.

[?]*?“(c) Although counsel is retained by the insurance company and is only authorized by it to represent Robert Moody if the latter is not in default, he would seem to be the only attorney in a position to raise promptly the question of whether or not the default judgment against Moody should be' stricken or opened, pending notification to Moody to employ his own counsel.

“(d) The question also arises as to the effect of Robert Moody’s apparent breach of obligation to this insurance company on the latter’s obligation, or lack thereof, to defend and indemnify the other defendants, Frank Wudkwych and M & W Construction Company, and, under the circumstances, Frank Wudkwych and M & W Construction Company would seem to be entitled to time to employ their own counsel, and the Court should grant a stay in the proceedings so that they may not be subject to a default judgment pending resolution of these problems.

“WHEREFORE, without prejudice to Motorists Mutual Insurance Company’s right to deny coverage and to deny any obligation to defend, and reserving all rights of Motorists Mutual Insurance Company, Counsel respectfully requests that all proceedings be stayed pending disposition of a Motion to Strike or to Open the Judgment entered against Robert Moody on July 19, 1974, and that the other defendants, Frank Wudkwych and M & W Construction Company be given until twenty days after disposition of the Motion to Strike or to Open to appear and defend.”

On December 10, 1975, appellants filed a petition for a rule to show cause why judgment for want of an appearance or answer should not be entered against appellees and the case listed for trial at which the issue would be limited to damages. The court issued the rule on December 15, 1975. When appellants became aware that they had inadvertently captioned the complaint by naming Robert “Moddy”, instead of Robert Moody, as a defendant, they petitioned the court to issue a rule to show cause why the caption should not be amended to reflect the correct name of the defendant. On [36]*36December 16, 1975, the court issued the rule. The court never decided whether the amendment was proper.

On January 23, 1976, appellees filed an answer to the rule to show cause why judgment should not be entered. Subsequently, appellee-Moody2 petitioned the court to open the default judgment entered on July 19, 1974. On March 18, 1976, appellee-Wudkwych filed a motion to strike the default judgment. He alleged that on August 2, 1974, counsel filed a motion to strike the judgment and to stay proceedings and filed an appearance card. Further, counsel alleged that:

. . 5. At the pretrial, plaintiffs’ counsel sought to have the pretrial Judge pass on a Petition for Rule To Show Cause Why Judgment For Want Of An Appearance Or Answer Should Not Be Entered And Case Listed For Trial At Which The Issue Shall Be Limited To The Amount of Damages, defense counsel opposed the proposed procedure, and the Judge, Barry, J., entered an Order striking the case from issue until such time as that Petition and Defendants' Motions To Strike Or Open Judgment and Motion To Stay Proceedings were disposed of by the Assignment Room Judge.

“6. Neither Plaintiffs’ Petition nor Defendants’ Motions have been disposed of by the Assignment Room Judge. .

“9. The action of the Prothonotary in entering judgment on March 12, 1976, against Frank Wudkwych and M & W Construction Company for want of an Answer or Appearance is contrary to law and to the Rules of Court, and it must be stricken.”

Finally, on April 6, 1976, the lower court acted on the petition to strike which attorney Martin had filed on August 2, 1974. The lower court entered the following order:

“And now this sixth day of April, 1976, after argument and upon due consideration; it is ordered, adjudged and decreed that the Motion filed on August 2,1974 to strike the [37]*37judgment entered July 19, 1974 in favor of plaintiffs and against Robert Moody is granted, and said judgment is hereby stricken; and, it is further ordered, adjudged and decreed that the Rule entered on March 18, 1976, to show cause why the judgments entered by the Prothonotary, on praecipe of plaintiffs, against Frank Wudkwych and M & W Construction Company on March 12, 1976, is made absolute, and said judgments are hereby stricken.” Thus, the court never considered whether the judgments should have been opened. This appeal followed.

I

Initially, we must decide whether the lower court erred when it struck the judgment entered against appelleeMoody. We note that the only motion to strike was filed by attorney Martin on August 2, 1974, despite the fact that Martin did not claim to represent the appellee at that time. Long after the August 2, 1974 motion, appellee-Moody, represented by new counsel, filed a petition to open the default judgment.

It is beyond question that a motion to strike a judgment is proper only upon a finding that a fatal defect exists on the face of the record; further, judgment cannot be stricken if the record is self-sustaining. See, e. g., Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819

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Pattinato v. Moody
374 A.2d 1302 (Superior Court of Pennsylvania, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
374 A.2d 1302, 248 Pa. Super. 32, 1977 Pa. Super. LEXIS 1960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pattinato-v-moody-pasuperct-1977.