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AB v. CONTINENTAL IMPORTS (09/21/71)

decided: September 21, 1971.

AB, APPELLANT,
v.
CONTINENTAL IMPORTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1970, No. 4484, in case of Government Ab v. Continental Imports.

COUNSEL

Richard J. Gordon, with him Dilworth, Paxson, Kalish, Levy & Coleman, for appellant.

Harry J. Oxman, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 220 Pa. Super. Page 6]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County opening a default judgment entered in favor of Government Ab, the appellant-plaintiff, and against Continental Imports, the defendant-appellee.

Suit was instituted February 24, 1970, seeking Fourteen Thousand Three Hundred and Ninety-two Dollars ($14,392.00) for goods sold and delivered on an open book account. The defendant was properly served with a copy of the complaint and notice to plead within twenty (20) days on February 27, 1970. Harry J. Oxman, Esquire, entered his appearance for the defendant on March 12, 1970, and demanded a jury trial. An extension of thirty (30) days was granted to counsel for the defendant at his request on March 12, 1970.

On April 14, 1970, plaintiff's counsel notified Mr. Oxman that the extension had expired and that default judgment would be taken. Oxman contacted plaintiff's attorney on April 15, 1970, and requested another extension to May 1, 1970, which was granted. Up to this time, there was no mention of illness. Oxman's secretary called plaintiff's attorney on May 8, 1970, and advised him of the illness of Oxman and requested another extension and promised an answer to be filed by May 15, 1970. This was granted.

[ 220 Pa. Super. Page 7]

Oxman was contacted on May 21, 1970, and again assurances were made that an answer would be filed. Then on June 5, 1970, Oxman called stating that he was in the hospital and that one of his partners or associates were preparing an answer. On July 7, 1970, Oxman was again contacted and on July 22, 1970, he was warned that judgment would be taken. On July 31, 1970, Oxman promised an answer within a week. No answer was filed. Judgment was entered on August 19, 1970.

On September 8, 1970, a petition to open the judgment was filed which alleged that the defendant had a "valid defense and counter claim". He did not state upon what the defense or the counter claim was based. The petition was largely based on the contention that "necessary factual research to properly present the defendant's defense and counter-claim" was needed which he was prevented from doing because of illness.

A petition to open judgment is an equitable matter addressed to the sound discretion of the court below and this Court must determine whether the action of the court below in opening this defendant's judgment was an abuse of discretion. Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967).

One who petitions to open a confessed judgment must act promptly and aver a meritorious defense. 7 Standard Pennsylvania Practice 50. The action of the court below will not be reversed unless a clear abuse of discretion appears or an error of law committed. Alliance ...


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