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SILVERMAN v. POLIS (09/23/74)

decided: September 23, 1974.

SILVERMAN
v.
POLIS, ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, No. 4485, in case of Louis Silverman v. Charles Polis and Philip S. Polis, Individually and t/a Polis and Polis.

COUNSEL

Frank J. Eustace, Jr., for appellants.

Leon W. Silverman, for appellee.

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

Author: Cercone

[ 230 Pa. Super. Page 367]

This case is an appeal from an order denying defendant's petition to strike*fn1 or open a default judgment.

[ 230 Pa. Super. Page 368]

Plaintiff's Complaint in Assumpsit was filed on May 26, 1971, seeking payment of his appraisal fee and for testifying, as an expert witness, in a land condemnation proceeding. On December 19, 1972, the plaintiff had judgment entered against the defendants for failure to file an answer to the complaint.

Following the filing of the complaint, the defendants sought to take plaintiff's deposition. Orders staying all proceedings were issued by the lower court on June 18, 1971, and July 28, 1971. The deposition was finally scheduled on November 3, 1971, and taken on December 7, 1971. The defendant filed interrogatories on February 24, 1972. On March 10, 1972, the plaintiff obtained an order, ex parte, removing the stay of proceedings. Two months later the plaintiff also filed interrogatories. On July 21, 1972, the court ordered the plaintiff to answer defendant's interrogatories within sixty days or suffer a judgment non pros. Sixty days later the answers were filed. Ten days thereafter the defendants moved for more responsive answers. On December 4, 1972, the court denied this motion, but without prejudice to defendant's right to file additional interrogatories. On December 12, 1972, the defendants filed the additional interrogatories and served them on the plaintiff the following day. For some reason these were not docketed until after December 19, 1972, on which day the plaintiff had the default judgment entered against the defendants. The pace at which both parties dealt with this case prior to the default judgment is best characterized as glacierlike. We can only look askance at default judgments taken under such circumstances.

In order to open a default judgment in an action in assumpsit the defendant must establish three points, (a) that the petition to open was promptly filed, (b) that a legitimate explanation exists for the delay that occasioned the default judgment and (c) that there

[ 230 Pa. Super. Page 369]

    is a meritorious defense. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). It must be borne in mind when considering the opening of a default judgment "(a) that the entry of a judgment by default finds its authority in the law (Pa. R. C. P. 1037, 1047, 1511) and (b) that, even though authorized by the law, such judgments are subject to opening if equitable considerations so demand." Kraynick v. Hertz, 443 Pa. 105, 111, 277 A.2d 144 (1971). Since opening judgment is an equitable action, reversal by an appellate court of a lower court's opening or refusing to open judgment is to be done only when there is "an error of law or a clear, manifest abuse of discretion." Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128 (1971).

In the instant case the petition to strike or open was filed on January 16, 1973, less than one month after the default judgment was entered, which, under the circumstances of this case, met the requirement of prompt filing. This leaves the issues of legitimate explanation and meritorious defense for consideration. To explain their delay in filing an answer to plaintiff's complaint, the defendants assert that the default judgment was taken without notice while they were still awaiting answers. Whether this is a legitimate explanation to justify opening the default judgment is not an easily answered question. What in one set of circumstances may be an unreasonable excuse may in another set be a legitimate explanation. On the other hand, some excuses are never legitimate explanations, for example, a busy trial list and business appointments, Walters v. Harleysville Mutual ...


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