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SPILOVE v. CROSS TRANSPORTATION (11/16/72)

decided: November 16, 1972.

SPILOVE
v.
CROSS TRANSPORTATION, INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Philadelphia, Oct. T., 1970, No. 422, in case of Robert Spilove v. Cross Transportation, Inc. and Philip Brooks.

COUNSEL

John T. Quinn, with him McEldrew, Hanamirian, Quinn, Bradley & D'Amico, for appellants.

David Levenberg, with him Martin Kreithen and Kreithen & Fine, for appellee.

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

Author: Hoffman

[ 223 Pa. Super. Page 144]

Appellants contend that the lower court abused its discretion in refusing to open a default judgment entered against them in a trespass action instituted by appellees. The suit arose out of a collision which occurred on March 23, 1970 involving a tractor trailer owned by appellant Cross Transportation Co. and driven by appellant Brooks and an automobile owned and operated by appellee Spilove.*fn1

Suit was instituted on October 6, 1970 by complaint served upon appellants. Counsel for appellants' insurance carrier entered an appearance for appellants on November 11. On November 13, plaintiff's interrogatories were served upon appellants with a demand for answers within 20 days in accordance with Rule 4006, Pa. Rule of Civil Procedure. Appellants failed to comply with the demand and answers were never filed. On January 14, March 20, and April 2, 1971 letters were sent by appellee's counsel to appellant's counsel requesting that answers be filed promptly. On April 18, another letter was sent in which counsel stated his intention to move for sanctions should answers not be forthcoming.*fn2 A copy of the motion was included in the letter.

[ 223 Pa. Super. Page 145]

On May 10, 1971, having received no reply to the above requests, the motion for sanctions was filed. On the following day, an Order was signed by Judge Hirsh and served upon appellant's counsel, notifying appellant to answer within twenty days or suffer a judgment by default. On May 14 and May 28, appellee contacted appellant's counsel by phone requesting answers. On June 1, appellee sent a final letter warning of its intention to take a default judgment. Receiving no reply, appellee carried out their intention, and on June 9, in accordance with the May 11th Order, judgment by default was entered in favor of appellee.

On September 18, appellants filed a petition to open the judgment which was subsequently denied. The denial was vacated in order to allow appellant to take depositions in support of the petition. The depositions were considered by Judge Hirsh and his original denial was reinstated on May 24, 1972. This appeal followed.

Appellant contends that all three requirements for the opening of the judgment were met, and that, therefore, the lower court abused its discretion in denying the petition to open. The lower court was of the opinion that appellant did not satisfy these requirements and refused to open the judgment.

It is axiomatic that a petition to open a default judgment is a matter of judicial discretion, 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 ...


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