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WESTINGHOUSE CREDIT CORPORATION v. WENZEL (04/13/72)

decided: April 13, 1972.

WESTINGHOUSE CREDIT CORPORATION, APPELLANT,
v.
WENZEL



Appeal from judgment of Court of Common Pleas of Potter County, Nov. T., 1969, No. 29, in case of Westinghouse Credit Corporation v. Gilbert Wenzel and Richard Wenzel.

COUNSEL

Carl A. Wiker, with him Wiker and Duvall, for appellant.

Harold B. Fink, Jr. and Fink & Young, submitted a brief, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Watkins, J. Wright, P. J., would affirm the order below.

Author: Watkins

[ 223 Pa. Super. Page 88]

This is an appeal from the order of the Court of Common Pleas of Potter County opening a judgment entered by default in favor of Westinghouse Credit Corporation, the plaintiff-appellant, and against Gilbert Wenzel and Richard Wenzel, individually, trading and doing business as Gilbert Wenzel Company, the defendants-appellees.

The plaintiff filed a Writ of Replevin with Bond on December 16, 1969, for certain household appliances delivered to the defendant on a floor plan for which they were not paid. Appliances in the total value of $1,762.75 were seized under the Writ and delivered to the plaintiff leaving a balance alleged to be due of $1,523.50. The balance of the appliances of that value were not found on the premises which was an alleged

[ 223 Pa. Super. Page 89]

    violation of the floor plan agreement between the parties.

The plaintiff then filed a complaint on January 5, 1970, demanding payment of $1,523.50 for appliances not replevined and interest of $157.72 plus costs. Preliminary objections were filed on behalf of the defendant on January 16, 1970 and dismissed on July 8, 1970, with the right to the defendant to file new objections which were dismissed on May 25, 1971, with the direction to the defendants to file an answer within twenty (20) days.

Before the twenty (20) days expired, defendant's attorney requested an additional ten (10) days to file an answer which was granted. More than a month after the time plus the extension had expired, the plaintiff entered judgment for default of an answer on August 3, 1971, and filed a Writ of Execution and also Attachment Execution on a bank account. Defendant filed a petition to open judgment on August 7, 1971, and after hearing, the court below opened the judgment and this appeal followed.

The general rule is that one who petitions to open a default judgment must act promptly and aver a meritorious defense. The action of the court below will not be reversed unless a clear abuse of discretion appears or an error of law is committed. Alliance Discount Corp. v. Shaw, 195 Pa. Superior Ct. 601, 171 A.2d 548 (1961). However, in view of the recent Supreme Court cases of Triolo v. Philadelphia Coca Cola Bottling Co., 440 Pa. 164, 270 A.2d 620 (1970), and Farrell v. Board of Trustees of S.S. Fund, 440 Pa. 255, 269 A.2d 890 (1970); as well as two recent decisions of this Court, Seltzer v. Ashton Hall Nursing and ...


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