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SLOTT v. TRIAD DISTRIBUTORS (09/23/74)

decided: September 23, 1974.

SLOTT
v.
TRIAD DISTRIBUTORS, INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1973, No. 4527, in case of Albert Slott v. Triad Distributors, Inc., Madison House Industries of Pennsylvania, and Madison House Industries.

COUNSEL

Harry L. Jenkins, III, with him Jenkins, Miller & Jenkins, for appellants.

Gary Green, with him Sidkoff, Pincus, Greenberg & Golden, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 230 Pa. Super. Page 547]

This is an appeal from an order denying a petition to open a judgment taken by default. For the reasons stated hereinafter, we affirm the order of the court below.

Appellee instituted an action in assumpsit on November 28, 1973 to recover salary and sales commissions which he alleged were earned but unpaid. Service of a properly endorsed complaint was made upon the appellants on November 30, 1973. Thus, the due date of the answer was December 20, 1973.*fn1 Appellee alleges that his counsel was contacted on December 13, 1973 by an attorney who stated that he represented the appellants and requested that a copy of the complaint be forwarded to him; a copy was sent the same day. He alleges that on December 14 a second attorney contacted his counsel and stated that he represented the appellants; a copy of the complaint was promptly forwarded to him. On December 17, a third attorney, Harry L. Jenkins, III, Esq., presently the attorney of record for appellants, called appellee's counsel and stated that he now represented the appellants. Appellee alleges that his counsel informed Mr. Jenkins of the prior communications and stated that no extension of time would be considered until one of the attorneys entered an appearance on behalf of the appellants.*fn2

[ 230 Pa. Super. Page 548]

Later that day Mr. Jenkins visited the office of appellee's counsel to obtain a copy of the complaint and stated, according to appellee, that he would enter his appearance immediately upon leaving appellee's counsel's office. Appellee alleges that Mr. Jenkins informed him that a timely answer would be filed. When, on December 20, he received neither an answer nor a request for an extension of time he instructed a member of his law firm to check the docket on December 21 to ascertain whether an attorney had entered an appearance, and if not, to enter the default judgment.*fn3 Thus, on December 21, 1973, exactly one day beyond the 20-day period within which appellants were required to file an answer, appellee entered the default judgment.*fn4

Appellants filed a petition to open the judgment on January 7, 1974. This petition was subsequently denied by Judge Hirsh in the court below and this appeal followed.

"Snap" judgments taken quickly after the expiration of an answer's due date are viewed by the courts with disfavor. This view results both from the fact that prejudice to the party taking the judgment can rarely be shown, and from the fact that such action is thought to be contrary to the true purpose of the default judgment.*fn5

[ 230 Pa. Super. Page 549]

Our review of the decision of the court below, however, is guided by several well established principles, foremost of which is that "only when there has been an abuse of discretion by the court below in refusing to open a default judgment will this Court reverse . . . ." Kraynick v. Hertz, 443 Pa. 105, 109, 277 A.2d 144, 146, (1971). If the decision by the court below not to open the judgment was authorized by the law and supported by ...


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