King v. Fayette Aviation
King v. Fayette Aviation
Opinion of the Court
Opinion by
This is an appeal from an order granting the appellees’ petition to open a default judgment for failure to answer appellant’s complaints.
Appellants filed a complaint on October 28, 1971, claiming that the appellees were liable under an oral bailment contract for damages to a small aircraft. The complaints were served, on appellees on November 1, and November 4, 1971, with notice to plead within twenty days. On November 9, appellees’ counsel secured a twenty day extension in order to prepare and file an answer. On February 8, 1972, appellant’s counsel entered a judgment by default.
Appellees’ counsel filed a petition to open the judgment on March 9, 1972. A commissioner was appointed to take testimony, make findings of fact and recom
The commissioner found that counsel’s other court commitments established an adequate excuse under the circumstances to justify opening the judgment.
While we conclude that the court below erred in opening the judgment and order that it be reinstated, appellant is not entitled to a judgment in the amount claimed. Since the amount of damages depends upon the reasonable value of the aircraft and its salvage value, the damages are not a “sum certain” and a separate trial is necessary. Evans v. Allied Discount Co., 199 Pa. Superior Ct. 239, 184 A. 2d 345 (1962); Pa. R. C. P. Nos. 1037(b), 1047(a).
The order of the court below is reversed, the judgment of liability reinstated and the case remanded for a trial on damages.
The Commissioner also found that appellees’ counsel believed that he would be notified before appellant’s counsel took any action. There is, however, no evidence on the record that appellant’s counsel did or said anything that would support such a belief. He had already been given a twenty day extension, and had no reason to expect that appellant’s counsel would notify him prior to taking any action.
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
The discretion traditionally accorded the lower court in matters involving the opening of judgments seems to me particularly appropriate in cases where the reasonableness of an attorney’s conduct involves local practice and custom. If, in the case at bar, local practice and custom included an understanding that a judgment would not be taken under the present circumstances absent notification to opposing counsel, the lower court was justified, in the exercise of its sound discretion, in holding the technical lapse of appellees’ attorney excused. Cf. Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966). For that reason, I believe that the order of the court below should be affirmed.
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