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SAMUEL JACOBS DISTRIBUTORS v. CONDITIONED AIR (03/27/73)

decided: March 27, 1973.

SAMUEL JACOBS DISTRIBUTORS, INC., APPELLANT,
v.
CONDITIONED AIR, INC.



Appeal from order of Court of Common Pleas of Bucks County, Dec. T., 1969, No. 557, in case of Samuel Jacobs Distributors, Inc. v. Conditioned Air, Inc., and Preform Building Components, Inc., and Grennell M. Riggs and Walter Hunt.

COUNSEL

Melvin Lashner, with him Adelman & Lavine, for appellant.

Frank N. Gallagher, with him Eastburn and Gray, for appellee.

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

Author: Spaulding

[ 223 Pa. Super. Page 467]

On November 18, 1969, appellant Samuel Jacobs Distributors, Inc., brought an assumpsit action on a book account against Preform Building Components, Inc., and two additional defendants. The complaint was reinstated January 13, 1970, and on February 27, 1970, appellant obtained a default judgment against appellee in the amount of $24,015.31. "A petition to open a default judgment is an appeal to the Court's discretion, Fox v. Mellon, 438 Pa. 364, 366, 264 A.2d 623 (1970); McDonald v. Allen, 416 Pa. 397, 206 A.2d 395 (1965), and before that discretion will be exercised three factors must be present: (1) the petition to open is promptly filed; (2) the default is reasonably explained, and (3) a defense is shown to exist on the merits. Fox v. Mellon, supra; Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963)." International Equity Corp. v. Pepper & Tanner, Inc., 222 Pa. Superior Ct. 118, 125, 293 A.2d 108 (1972). All agree that appellee has shown

[ 223 Pa. Super. Page 468]

    that it has a defense on the merits. The question here is whether appellee has met the other two criteria for opening a judgment, e.g., promptness and a reasonable explanation of the default. A three-judge Court of Common Pleas of Bucks County heard the case below and concluded that these standards were met. Appellant appeals from their order opening the judgment.

A copy of the complaint had been duly served on appellee's registered agent, Corporation Trust Company, on January 27, 1970. The corporate agent delivered it within a day to Mr. Pepperman, a member of a Wilmington, Delaware law firm which represented appellant in some other matters. Pepperman deposed that on receiving the complaint he dictated a cover letter forthwith, which he subsequently signed and returned to a secretary for mailing along with the complaint to appellant's vice-president. He also signed copies of the letter and returned them in a similar fashion for mailing to appellant's president and counsel in New York, who was representing appellant in all matters relating to the suit and for whom Pepperman's firm was merely "base tending". However, on deposition, all three of the addresses testified that they never received a copy of either the letter or the complaint. There was no evidence of the secretary's ever having mailed the letters. Therefore we cannot presume that they were ever received. See Paul v. Dwyer, 410 Pa. 229, 233, 188 A.2d 753 (1963).

There was additional testimony by a Mr. Gardner that he, too, was a Delaware attorney, employed by the same firm as Pepperman at this time. On March 11, 1970, Gardner received notice of the default judgment from counsel for one of the defendants other than appellee. He was also supplied with a copy of the complaint. Gardner informed appellant's vice-president of this development by telephone and subsequently sent

[ 223 Pa. Super. Page 469]

    him the following letter, terminating his firm's involvement in the matter:

"Pursuant to our telephone conversation . . ., I herein enclose the following:

1. Correspondence relating to the suit in the Court of Common Pleas of ...


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