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TRIOLO v. PHILADELPHIA COCA COLA BOTTLING CO. (10/09/70)

SUPREME COURT OF PENNSYLVANIA


decided: October 9, 1970.

TRIOLO, APPELLANT,
v.
PHILADELPHIA COCA COLA BOTTLING CO.

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1968, No. 171, in case of Charles Triolo v. Philadelphia Coca Cola Bottling Co.

COUNSEL

David Gold, for appellant.

Martin J. Corr, with him Liebert, Harvey, Herting, Short & Lavin, for appellee.

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

Author: Roberts

[ 440 Pa. Page 165]

On August 8, 1967, a soda pop bottle allegedly exploded in appellant's grocery store, causing appellant the loss of his right eye. Suit was instituted against appellee, Philadelphia Coca Cola Bottling Company, on November 8, 1968. On February 14, 1969, appellant filed interrogatories*fn1 on appellee, the interrogatories noting that an answer was required to be filed within twenty days. See Pa. R. C. P. 4006. On April 11, 1969, appellant, not having yet received appellee's answers, wrote a letter to counsel for appellee requesting the answers and advising appellee that a motion for

[ 440 Pa. Page 166]

    sanctions would be filed if the answers were not submitted by April 18. No answers were received and appellant filed his motion on April 24.

On May 20 the court, per Judge Barbieri, ordered appellee to file answers within thirty days. The order further provided that if the answers were not filed within that time, appellant could, by filing a praecipe, enter judgment against appellant. On June 16, four days before the answers were due, counsel for appellant and appellee engaged in a telephone conversation in which, among other things, appellant again requested the answers. Counsel for appellee stated that the interrogatories were out to the client for answer. No answers were filed on the June 20 deadline.

On June 27 counsel for appellant again wrote counsel for appellee requesting the answers. On July 8 counsel for appellant attempted to contact counsel for appellee by telephone; the latter never returned the call. On July 10 -- twenty days after the due date specified in Judge Barbieri's order, and almost four months after the date the answers were originally due -- appellant entered judgment against appellee.

On August 1 appellee filed a petition to open the judgment, alleging basically, that it had been confused by counsel for appellant and believed that counsel was not serious about enforcing Judge Barbieri's order.*fn2

[ 440 Pa. Page 167]

Additionally, appellee alleged that it had "a valid defense" to appellant's claim. The court granted the petition to open. This appeal followed and we reverse.

It is well settled that a petition to open a judgment is an appeal to the court's discretion, and that this discretion may properly be exercised to grant such a petition if: 1) the petition is promptly filed; 2) a defense is shown to exist on the merits; and 3) the default is reasonably explained or excused. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (citing cases); Kramer v. Philadelphia, 425 Pa. 472, 229 A.2d 875 (1967); Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963) (citing cases).

We do not believe that the default in the instant case was "reasonably explained."*fn3 Judge Barbieri's order, and appellant's several requests, clearly indicated appellant's desire for answers to the interrogatories. This is not a case where appellant lulled appellee into a false sense of security, see Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966). Nor is this a case where appellant made a "studied attempt" to obtain a default judgment, see Fox v. Mellon, supra. Appellant carefully, and explicitly, preserved his rights. He certainly cannot be foreclosed from exercising them simply because he was courteous and extended the time limits. See Kramer v. Philadelphia, 425 Pa. at 477, 229 A.2d at 877.

As this Court stated in McDonald v. Allen, 416 Pa. 397, 400, 206 A.2d 395, 396 (1965): "'"The exercise of generosity does not create a binding obligation for its continuance."'" Appellee knew of Judge Barbieri's order and does not now complain that it was an improper

[ 440 Pa. Page 168]

    one under the circumstances. He cannot be heard to say that he did not think appellant was serious in his desire to enforce his rights.

The order of the Court of Common Pleas, Trial Division, of Philadelphia is reversed.

Disposition

Order reversed.


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