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decided: March 16, 1965.


Appeal from order of Court of Common Pleas of Berks County, Equity Docket, 1961, No. 2954, in case of J. Clifford Walters v. Harleysville Mutual Casualty Company and Harleysville Mutual Insurance Company.


Henry T. Reath, with him David C. Toomey, Alvin A. Woerle, and Duane, Morris & Heckscher, and Ruth, Weidner, Woerle & Yoder, for appellants.

Frederick J. Giorgi, with him Speicher, Austin, Connor & Giorgi, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Cohen dissent.

Author: O'brien

[ 417 Pa. Page 440]

The plaintiff-appellee filed a complaint in equity in Berks County on October 16, 1961. The complaint was served on the defendants-appellants on October 19, 1961. Thereafter, the defendants consulted counsel in the City of Philadelphia. Counsel for the defendants then communicated with counsel for the plaintiff and requested additional time to file an answer and to secure local counsel. Counsel for the plaintiff then granted the defendants an additional thirty days. On November 11, 1961, the defendants' counsel promised that the answer would be filed by Friday of that week; however, the answer was not filed. On December 19, 1961, counsel for the plaintiff was advised by counsel for the defendants that the answer would be filed the following Tuesday, but still no answer was filed. On January 19, 1962, the attorney for the plaintiff warned counsel for the defendants that unless an answer were filed by January 25, 1962, the plaintiff would take a default judgment. On February 2, 1962, no answer having been filed, the plaintiff caused a default judgment to be entered.

Shortly thereafter, the defendants filed a petition to open the judgment. The petition alleged that the defendants had a meritorious defense, that the petition was timely filed after the entry of the judgment and that the failure to file an answer for over a hundred days was caused by the busy trial and business appointments of the attorney for the defendants.

No depositions having been taken, the Berks County Court of Common Pleas heard arguments on the petition. After consideration of the petition and arguments, the court below exercised its discretion and denied the petition. Thereafter, a petition for reargument and depositions were filed, and the matter was reconsidered below. Upon examination of the petition and answer to the petition for reargument, the reargument was denied; this appeal followed.

[ 417 Pa. Page 441]

A petition to open a judgment is an appeal to the equity powers of the court and is a matter largely within its discretion. Although the exercise of discretion of the court below is reversible, its decision will not be upset unless there has been a clear, manifest abuse of discretion.

The guidelines a court must follow in considering a petition to open a default judgment are clearly set out in Wheel v. The Park Building, 412 Pa. 545, 195 A.2d 359 (1963), wherein we said on page 546: ". . . relief will be given to one against whom a default judgment has been taken where a petition is promptly filed, the default reasonably explained and a defense shown to exist on the merits. . . ."

When we apply these guidelines to the case at bar, we find that the petition was promptly filed after the default judgment was entered, and for purposes of this case, a defense on the merits would appear to exist. The problem which faces us, and which faced the court below, was whether or not the delay was reasonably explained or excused. The record clearly indicates that the plaintiff gave the defendants' counsel great consideration and ample opportunity to file an answer; however, an answer was never submitted. In all fairness to Philadelphia counsel for the defendants, he was required to engage local counsel and then prepare and file the required answer, and a reasonable extension of the 20 day period was necessary and it was given. However, as early as November 11, 1961, local counsel had been engaged, and all that remained was the preparation and filing of the answer. The record indicates that the attorney for the defendants was a partner in a law firm with ...

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