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SMITH v. TONON (12/11/74)

decided: December 11, 1974.

SMITH, APPELLANT,
v.
TONON



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1973, No. 3537, in case of David Smith v. Anthony J. Tonon.

COUNSEL

Allen T. Newman, for appellant.

Robert M. Ruzzi, for appellee.

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

Author: Hoffman

[ 231 Pa. Super. Page 540]

The sole issue in this appeal is whether the lower court abused its discretion by granting appellee's petition to open a default judgment.

Appellant, the operator of an automobile which was struck by a motor vehicle operated by appellee, filed a complaint in trespass against appellee in the Common Pleas Court of Philadelphia County on March 22, 1973. At appellant's direction, the Philadelphia County sheriff deputized the Carbon County sheriff to serve process on appellee. On April 14, 1973, appellee was served

[ 231 Pa. Super. Page 541]

    with a copy of the complaint, with notice to plead within twenty days. (Apparently the return of service was not physically entered on the Philadelphia docket until some time between April 27, 1973, and May 8, 1973.) Appellee forwarded the complaint to his insurance company, which forwarded it to appellee's attorney. Appellee's attorney learned of the complaint on April 27, 1973, or earlier. Appellee never filed an answer to the complaint. On May 8, 1973, on praecipe of the appellant, the prothonotary of the court below entered judgment against appellee for failure either to file an answer to the complaint or to enter an appearance.*fn1 On May 11, appellee's attorney learned that the default judgment had been entered against appellee. Appellee's attorney did not communicate with the court or with appellant's attorney until September 12, 1973. (Appellee's attorney was on active duty with the army reserve in Fort Sill, Oklahoma, from June 3, 1973, to September 3, 1973). Appellee's petition to open judgment, dated September 12, 1973, was filed September 24, 1973. On April 30, 1974, the Honorable Jay H. Eiseman of the Court of Common Pleas granted the petition. This appeal followed.*fn2

Opening a judgment is a matter committed to the discretion of the lower court. Good v. Sworob, 420 Pa. 435,

[ 231 Pa. Super. Page 542218]

A.2d 240 (1966). Nevertheless, when that discretion has been abused, an appellate court must reverse such an order. Kramer v. Philadelphia, 425 Pa. 472, 229 A.2d 875 (1967). The lower court's discretion "is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown;*fn3 (3) the failure to appear can be excused." Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971). We find that in the present case appellee has not excused his default and has failed to file his petition to open in a timely manner.

Appellee offers no excuse for his failure to file a timely answer to appellant's complaint. The complaint, with notice to plead within twenty days, was served on appellee on April 14, 1973, thus allowing appellee until May 4, 1973, to answer. Considering the facts as admitted by appellee's attorney in his petition to open judgment and in his brief before this court, it appears that he received a copy of the complaint no later than April 27, 1973, thus allowing the attorney ...


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