Appeal from order of Court of Common Pleas of Westmoreland County, Oct. T., 1971, No. 313, in case of John King and Ralph H. Christner v. Fayette Aviation, a Pennsylvania Corporation, and Keystone Aeronautics Corp., a Pennsylvania Corporation.
John W. Pollins, III, with him Hammer & Pollins, for appellants.
Thomas W. Smith, with him Dickie, McCamey & Chilcote, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Dissenting Opinion by Jacobs, J.
[ 226 Pa. Super. Page 589]
This is an appeal from an order granting the appellees' petition to open a default judgment for failure to answer appellant's complaints.
Appellants filed a complaint on October 28, 1971, claiming that the appellees were liable under an oral bailment contract for damages to a small aircraft. The complaints were served on appellees on November 1, and November 4, 1971, with notice to plead within twenty days. On November 9, appellees' counsel secured a twenty day extension in order to prepare and file an answer. On February 8, 1972, appellant's counsel entered a judgment by default.
Appellees' counsel filed a petition to open the judgment on March 9, 1972. A commissioner was appointed to take testimony, make findings of fact and recommendations.
[ 226 Pa. Super. Page 590]
He conducted a hearing at which counsel for both parties testified. The commissioner recommended that the judgment be opened and found that all elements necessary for doing so were present: the petition was promptly filed; it averred a meritorious defense; and, the default in answering the complaint was reasonably explained. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). The court below dismissed appellant's exceptions to the findings and recommendation, and opened the judgment.
The commissioner found that counsel's other court commitments established an adequate excuse under the circumstances to justify opening the judgment.*fn1 While we will not pass on the credibility of counsel's assertion, we cannot accept a "burdens of litigation" explanation for a failure to prepare and file an answer for over three months. See Balk v. Ford Motor Company, supra, 446 Pa. at 143; Retzback v. Berman Leasing Company, 222 Pa. Superior Ct. 523, 527 (1972) (concurring opinion). Appellant's cause of action was not a particularly complicated one and the preparation of an answer should not have been an unusually difficult or time consuming matter. An extension of time had already been granted and counsel had no justification for assuming that the extension would last indefinitely. Pappas v. Stefan, 451 Pa. 354, 357 (1973). If counsel was so pressed for time it would have been a simple matter for him to have asked for another extension of time or have another attorney in his law firm
[ 226 Pa. Super. Page 591]
prepare an answer. We find counsel's explanation for his total inaction for three months to be lacking sufficient ...