Appeal from order of Court of Common Pleas of Delaware County, No. 11153 of 1968, in case of James B. Balk and Joseph M. Balk v. Ford Motor Co. and Ed Morrow Ford, Inc., trading as Robin Ford.
John Paul Curran, for appellant.
Stephen J. McEwen, Jr., with him Joseph P. Mylotte, and McEwen, McEwen and Mylotte, for appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice O'Brien concurs in the result. Mr. Justice Eagen and Mr. Justice Roberts concur in part and dissent in part.
This is an appeal by James B. Balk, one of the two plaintiffs, from an order opening a default judgment against appellee Ed Morrow Ford, Inc., trading as
Robin Ford, and decreeing a new trial because of excessiveness of the verdict.
The relevant facts are as follows: Plaintiff was injured on September 14, 1966 when the Ford automobile he was driving, owned by his father, Joseph M. Balk, went out of control on the Pennsylvania Turnpike. The resulting accident was allegedly due to a defect in the steering mechanism. On August 30, 1968 suit was instituted by complaint against Ford Motor Company, as manufacturer, and Robin Ford, as dealer-seller, alleging that the personal injuries sustained by appellant, James Balk, and the property damage sustained by his father (the other plaintiff) were caused by both defendants or either of them in installing, and failing to discover, the defective steering mechanism, and in failing to warn plaintiffs of the existence thereof. On December 21, 1968, service of a reinstated complaint was made on both defendants. Neither defendant appeared and a default judgment was taken against both on January 27, 1969. No notice was given of the entry of this judgment. Trial for assessment of damages was listed for October 27, 1969. Pursuant to Delaware County Court Rule 277(2), requiring five days written notice of such a hearing, notice was sent by registered mail to appellee on October 21, 1969. The caption on this notice stated only "Re: Balk v. Ford Motor Co.", and in no way referred to any action involving Robin Ford. Robin Ford did not appear and an ex parte hearing was held, at which time a jury assessed damages of $75,000 against the defendant appellee alone.*fn1
After learning of the foregoing proceedings, appellee filed the petition in question on November 3, 1969. From the court's order opening the judgment as to
Robin Ford and granting a new trial, James Balk has appealed to this Court.*fn2
As we have had occasion to reiterate several times recently, a petition to open a judgment is a matter of judicial discretion, is an appeal to the court's equitable powers, and is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown;*fn3 (3) the failure to appear can be excused. A lower court's ruling opening or refusing to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Atlas Aluminum ...