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JOHNSON v. YELLOW CAB COMPANY PHILADELPHIA (06/14/73)

decided: June 14, 1973.

JOHNSON, APPELLANT,
v.
YELLOW CAB COMPANY OF PHILADELPHIA



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1971, No. 1683, in case of Oliver Johnson v. Yellow Cab Company of Philadelphia and William Tabb.

COUNSEL

Harry J. Oxman, with him Silverberg, Oxman and Levitan, for appellant.

Bernard J. Smolens, with him C. Gary Wynkoop, and Schnader, Harrison, Segal & Lewis, for appellee.

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

Author: Spaulding

[ 226 Pa. Super. Page 270]

This action results from a 1970 accident in which appellant Oliver Johnson, a pedestrian, was struck by

[ 226 Pa. Super. Page 271]

    a motor vehicle operated by William Tabb. In September 1971, 13 months after the accident, appellant commenced this suit, naming appellee Yellow Cab Company of Philadelphia as a defendant, in addition to Tabb. Appellee, however, has consistently maintained the position that its cabs were not in any way involved in the accident. After receiving the appellant's complaint at its claims office, an entry of appearance of appellee's house counsel and interrogatories were prepared. However, due to appellee's decision to forward this case to outside counsel, these pleadings were never filed. When outside counsel received the file on this case, he assumed that the pleadings, contained therein, had been filed and decided to take no further action until answers to the interrogatories he thought had been filed were received. On November 30, 1971, appellant entered judgment by default and three days later appellee filed a petition to open judgment. An answer to the petition was filed and the petition dismissed. On January 21, 1972, a petition for reconsideration was filed. After an answer to this petition, depositions, and oral argument, the court below ordered the judgment opened. Appellant now appeals from that order.

"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 and Tanner, Inc., 222 Pa. Superior Ct. 118, 125, 293 A.2d 108, 112 (1972). The court below held that appellee, here, met all three of these requirements and opened the default

[ 226 Pa. Super. Page 272]

    judgment which had been entered in appellant's favor.

"A lower court's ruling opening or refusing to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); [other citations omitted]." Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 131 (1971). We find no abuse of discretion and hence affirm.

Appellee has met the requirement of promptness, having filed the petition to open only three days after the default judgment was taken. Appellant argues that appellee failed to meet the other two criteria for opening a judgment, i.e., a reasonable ...


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