New York Life Ins. Co. v. Sekula , 352 Pa. 495 ( 1945 )

These are appeals from the refusal to open a decree proconfesso entered for want of an appearance. The plaintiff insurance company, on June 1, 1942, filed its bill against Harry Sekula, Rose Wiercioch, also known as Rose Miernicki, and Helen Wiercioch, also known as Helen Yadusky, averring the issue on May 27, 1941, of a policy of insurance on the life of Harry Sekula, naming his sons John and Frank Sekula beneficiaries; that the beneficiaries were changed to Rose Miernicki and Helen Yadusky in fraudulent circumstances averred to be ". . . at and before the time when the said original application was sent to Plaintiff, as above set forth, all of the Defendants herein entered into a fraudulent conspiracy and plan whereby the said Defendants, Rose Wiercioch and Helen Wiercioch, were to secure the said insurance by furnishing the moneys for payment of the necessary premiums thereon, and by causing the Defendant, Harry Sekula, to make application for such policy, and whereby the Defendants, Rose Wiercioch and Helen Wiercioch, were to have complete possession and control of the said policy at all times and were to receive all benefits thereunder and were to be made beneficiaries therein after the said policy had been issued, and whereby the Defendant Harry Sekula was never to furnish any money whatsoever for the payment of premiums and was never to have possession or control of said policy nor to receive any benefits whatsoever thereunder; and whereby the said John and Frank Sekula, sons of insured, were never intended to be beneficiaries, their names being used fraudulently in order to secure the said policy as hereinabove set forth, and their names being, in fact, John and Walter." The bill prayed for a decree cancelling the policy and averred plaintiff's willingness to repay the premiums collected with interest. It will be observed that the policy had only been in effect a year when the bill was filed.

The question is whether the bill was properly taken proconfesso for failure to enter an appearance and final decree thereon duly entered. The bill, which was filed on June 1, 1942, was served on defendants on June 4, 1942. They did not appear as required. On June 22, 1942, no appearance having been made, the plaintiff entered an order that the bill be taken proconfesso under Equity Rule 50. Defendants entered an appearance on June 29, 1942, and filed an answer on July 2, 1942, which was after plaintiff's order to take the bill pro confesso. Thereafter, on December 14, 1942, in accordance with Equity Rule 51, the chancellor, pursuant to plaintiff's order, entered a final decree in plaintiff's favor. Defendants presented a petition on December 22, 1942, and a rule was granted upon the plaintiff to show cause why the decree should not be opened. An answer was filed by plaintiff and depositions were taken. On June 19, 1944, the rule was discharged. No exceptions were taken to the final decree entered December 14, 1942, until June 28, 1944. From the dismissal of the exceptions and the entry of an amended final decree on October 30, 1944, these appeals were taken.

The conclusion is insuperable that the decree was properly entered for failure to enter an appearance. Equity Rule 28 provides: ". . . each bill shall require him [the defendant] to enter an appearance within fifteen days after service. . . ." This requirement is reiterated in the form of the notice required to be affixed to the bill, set forth in Equity Rule 33, which further provides that an answer must be made within thirty days after service and states: "If you [defendant] fail in either respect, the bill may be takenpro confesso, and a decree made against you in your absence." Rule 50 similarly provides: "If no appearance is entered, or answer filed and served as required by these rules; plaintiff may enter an order, as of course, that the bill be taken proconfesso. . . ."

Defendants contend that the provisions requiring an appearance within fifteen days are not mandatory. They attempt to find support for this theory in Equity Rule 30, which states: "Within said fifteen days after service, defendantmay enter in the prothonotary's office an appearance, in writing, specifying a name and address. . . ." (italics added). This contention is without merit. Rule 30 merely stipulates what defendants' attorney shall do on entering an appearance. See cases cited in Campbell's Annotations to Equity Rule 28. It does not modify Rules 28 and 33, specifically requiring defendant to enter an appearance within fifteen days after service. The time limitations on entering an appearance and making an answer must both be met. To hold otherwise, as defendants contend, would reduce the provisions for entering an appearance to a nullity, since a defendant could always avoid them by merely filing an answer. It is thus apparent that the order for the decree pro confesso was properly filed by the appellee. See cases cited in 8 Standard Pa. Practice page 223.

The chancellor thereafter entered a decree in plaintiff's favor, proceeding under Equity Rule 51, which states: "When a bill is taken pro confesso, the facts therein stated shall be presumed to be true, and the court shall proceed ex parte to enter the appropriate final decree. . . ." The decree thus entered on December 14, 1942, was entitled "FINAL DECREE", but inadvertently (as the chancellor states in his opinion) contained the word "nisi" in its body. Appellants now contend that the decree proconfesso was a decree nisi. This is a mistake. Equity Rule 51, supra, clearly provides that the court shall enter a "final decree". This requirement is mandatory: Solar E. Co. v.Brookville Boro., 300 Pa. 21, 150 A. 92; Rich Hill Coal Companyv. Bashore, 334 Pa. 449, 7 A.2d 302; Smith v. Glen Alden CoalCo., 347 Pa. 290, 306, 32 A.2d 227; 8 Standard Pa. Practice, pages 226, 227. Furthermore, if the decree be regarded as a decree nisi, the present appeal would certainly not lie therefrom. In any event, appellants recognized the decree as final by filing a petition to open it and therefore were not misled.

The remaining contention is that the court below erred in declining to open the decree so regularly entered. Under Equity Rule 51, a decree pro confesso may be opened only "upon cause shown". Appellants must show that they were acting in good faith and that the delay in asserting the defense which they now seek to assert was not due to their own fault or wilful neglect: Mitchell v. Mitchell, 338 Pa. 152, 12 A.2d 16. See also: Verstine v. Yeaney, 210 Pa. 109, 59 A. 689; United Nat.Gas Co. v. James Bros. L. Co., 325 Pa. 469, 191 A. 12; Kurtz v.Farrell, 44 Pa. Super. 355.

In their petition to open the decree defendants averred that they had consulted an attorney; that he assured them that an appearance and answer would be filed in due time; that he failed so to do and seven days after the order to take the billpro confesso was filed withdrew from the case, whereupon they employed another attorney who entered an appearance and filed an answer. The depositions taken to support the petition utterly fail to sustain these averments. There is no evidence that the defendants consulted or retained counsel; two of the defendants testified, but no other witnesses were produced to corroborate them; their testimony, feeble as it is, is largely hearsay. Mrs. Miernicki said she "spoke to [her] husband and he went up to the attorney, his brother". This witness was not present and did not and could not know whether the attorney was in fact consulted or retained. This attorney, she said, "was suppose[d] to take care of everything." She said she received a letter from the attorney declining the case, but she did not produce the letter. Mrs. Yadusky, the other witness, was allowed to say that the lawyer, Mr. Miernicki, "came down to the house and they talked this case over, and then within a few days he had sent a letter saying he couldn't take the case, that he thought it would be best if an outsider would have the case because he was in the family, and he asked us to get another lawyer." But it is noteworthey that the lawyer Miernicki was not called to testify. Mrs. Yadusky failed to disclose in what respect the attorney neglected the case. There was no evidence that the attorney's letter came too late to prevent defendants from engaging another attorney in time to enter an appearance. At the time the depositions were taken, counsel for petitioners reserved the right to place this letter upon the record. It has never been produced. We agree with the court below that "The failure to offer [the letter] is ground for the conclusion that if it were offered, the date would show that the petitioners were given ample time to procure other counsel after the withdrawal of the first counsel and that steps might have been taken to prevent the plaintiff from the entering of the order for decree pro confesso."

It may thus be seen that none of the averments concerning neglect of counsel was sustained by the depositions. This is therefore not a case where a lawyer failed in his duty. Compare: Pinsky v. Master, 343 Pa. 451, 23 A.2d 727. The harm in this case was caused by the defendants' failure to act diligently. It is true that relief from decrees pro confesso may be granted where a reasonable excuse is offered, but here there was none. We agree that no abuse of discretion appears.

It may also be noted that although the refusal of the court below to open the decree pro confesso is assigned as error, no argument is made in appellants' brief that the court was not fully justified in its action. The sole reason now urged for opening the decree is that no appearance was necessary, which contention is, as we have previously pointed out, completely without merit.

Decree affirmed at appellants' cost.