Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 3156, in case of Hannah Carney v. Adalbert Sado and Florence M. Sado.
Chester Thomas Cyzio, for appellants.
George S. Pressman, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice O'Brien.
Appellants, Adalbert Sado and Florence M. Sado, his wife, had engaged a contractor, one Papiro, to accomplish certain improvements on their residential property. A dispute then arose between appellants and appellee, Hannah Carney, a next-door neighbor, with respect to an alleged encroachment and channeling of storm water. The dispute culminated in a complaint in equity, filed by appellee against appellants, seeking injunctive and other relief. The complaint was filed on October 21, 1970, and proper service was made on appellants on that date.
Mrs. Sado, apparently believing that any problems were the fault of the contractor, contacted him and he, in turn, contacted Wesley M. Keely, Esquire. Keely reviewed the complaint, prepared an answer and, together
with the contractor, visited the Sado home, Keely having in the interim entered an appearance on behalf of the Sados. According to Keely's deposition, he fully explained to Mrs. Sado the import of the complaint and the answer which he had prepared. When she refused to sign the answer, he explained to her that she was running the risk of having a judgment entered by default if she failed to respond within the time allowed by the Rules of Civil Procedure. He suggested to her that if she were not satisfied with his representation, she was, of course, free to engage other counsel and, he testified, he suggested the name of a lawyer who eventually did enter an appearance for the Sados and still represents them. In any event, Mrs. Sado refused to sign the answer and Mr. Keely, on November 16, 1970, withdrew his appearance for the Sados, having informed counsel for the appellee of that action by letter dated November 12, 1970. In that letter Keely informed counsel for appellee that the Sados were going to seek other counsel.
Thereafter, on November 18, 1970, judgment for want of an answer was entered against appellants and they were so informed by registered mail on that date. Again, they took no action, and on January 15, 1971, the court below entered a final decree in response to appellee's motion. It was not until February 3, 1971, that present counsel for appellants entered his appearance and filed a petition to open the final decree and allow appellants into a defense. Appellants have appealed the refusal of the court below to open the final decree.
It has long been the law of Pennsylvania that a petition to open a decree in equity is an appeal to the court's discretion and that that discretion may properly be exercised to grant such a petition if (1) the petition is promptly filed, (2) a defense is shown to exist on the merits, and (3) the default is reasonably
explained or excused. Triolo v. Phila. Coca Cola Bot. Co., 440 Pa. 164, 270 A.2d 620 (1970); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Kramer v. Philadelphia, 425 Pa. 472, 229 A.2d 875 (1967); Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963). We do not ...