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FEDDERS FINANCIAL CORPORATION v. CHIARELLI BROS. (03/24/72)

decided: March 24, 1972.

FEDDERS FINANCIAL CORPORATION
v.
CHIARELLI BROS., INC. (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Berks County, April T., 1969, Nos. 105 and 820, in case of Fedders Financial Corporation v. Chiarelli Bros., Inc., and American Bank and Trust Co. of Pa.

COUNSEL

Henry M. Koch, Jr., with him Henry M. Koch, and McGavin, DeSantis & Koch, for appellant.

Mark C. McQuillen, for appellee.

Wright, P. J., Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. (Watkins, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Cercone, J.

Author: Hoffman

[ 221 Pa. Super. Page 225]

This is an appeal from the order of the court below denying appellant's petitions to open and strike a default judgment.

On March 17, 1969, appellee Fedders Financial Corporation (Fedders) initiated an action in replevin for twenty-six specific air conditioners by filing a praecipe for a writ of replevin without bond. The air conditioners, formerly a portion of the inventory of Chiarelli Bros., Inc. (Chiarelli), an appliance dealer, were being held by appellant American Bank and Trust Co. of Pa.

[ 221 Pa. Super. Page 226]

(Bank) as mortgagee in possession of the real estate occupied by Chiarelli as tenant.

Fedders filed a complaint in replevin against the Bank on April 15, 1969, endorsed with notice to plead within twenty days from the date of service. The complaint was served upon the Bank's attorney on April 16, 1969. A praecipe to reissue the writ of replevin with bond added was filed by Fedders on April 21, 1969, and the reissued writ was served upon the Bank's attorney on April 22. The Bank filed a counter-bond on April 24, 1969.

On May 8, 1969, twenty-two days after the filing of the complaint and sixteen days after the service of the reissued writ of replevin with bond, Fedders took a judgment for want of an answer. On May 13, 1969, the Bank filed petitions to open and strike off the judgment. Fedders filed a demurrer to both petitions for the reason that they "did not set forth a meritorious defense to Fedders' complaint."

After argument, the Bank was given leave to file an amended petition to open the judgment, the petition to strike having been previously denied. Fedders filed preliminary objections to the Bank's amended petition to open judgment, but these were dismissed and Fedders was given leave to file an answer to the Bank's amended petition.

An answer to the amended petition together with new matter was subsequently filed by Fedders, and the Bank filed an answer to Fedders' new matter. On June 9, 1970, a rule was entered against the Bank to proceed to take depositions or argue the matter. Thereafter, counsel for the parties prepared and submitted to each other a stipulation of facts in lieu of depositions.

The matter was then argued before the court below, which filed an opinion on August 6, 1971, denying the Bank's petitions to strike and open the default judgment taken against it.

[ 221 Pa. Super. Page 227]

We agree with the lower court that the judgment entered against appellant was regular on its face and cannot be stricken.

As to the petition to open judgment, three requirements must be met: (1) the petitioner must have an explanation or excuse for having permitted the default to occur; (2) the petition to open must be filed promptly, and (3) petitioner must show that it has a meritorious defense ...


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