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HERSCH v. CLAPPER (02/27/75)

decided: February 27, 1975.

HERSCH
v.
CLAPPER, APPELLANT



Appeal from order of Court of Common Pleas of Erie County, No. 1069-A of 1972, in case of Lucy Brindle Hersch v. Frederick Clapper.

COUNSEL

Robert B. McCullough, with him Evans, Johnson, Scarpitti, Bernard, McCullough & Wittmann, for appellant.

James T. Marnen, with him Lund, Fischer, Kennedy & Schleicher, for appellee.

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

Author: Cercone

[ 232 Pa. Super. Page 551]

This is an appeal from an order of the Court of Common Pleas of Erie County refusing to open a default judgment entered in a trespass action. The suit arose out of an altercation that occurred on April 21, 1971, when the defendant, Frederick Clapper, is alleged to have repeatedly struck the plaintiff, Lucy Brindle Hersch, with a large board.

The litigation was commenced through issuance of a summons which was duly served upon the defendant on May 16, 1972. On May 31, 1972, the plaintiff through her former attorney, S. Thaddeus Kwiat, now deceased, filed a complaint in trespass. The sheriff's return states that

[ 232 Pa. Super. Page 552]

    the defendant was personally served with a copy of the complaint at his residence on June 16, 1972.

On July 17, 1972, plaintiff's counsel caused a default judgment to be entered against defendant for failure to enter an appearance or file an answer. The following day plaintiff's attorney filed a praecipe requesting that the case be listed for trial. Notice of the default judgment was not conveyed to the defendant until December 29, 1972, when he was notified by registered mail of plaintiff's motion for a continuance with respect to the trial for the assessment of damages. Defendant for some unexplained reason, however, did not bring this matter to his attorney's attention. Defendant's counsel was first apprised of the default judgment on January 11, 1973, when -- while reviewing the January trial list -- he observed the instant case listed for trial specifically on the issue of assessment of damages.

On January 27, 1973, the defendant journeyed to South America and did not return to the United States until April 4, 1973. Finally, on April 5, 1973, defendant filed a petition to open judgment. After plaintiff filed her answer to the petition and depositions were taken, the lower court refused to open the judgment. This appeal followed.

It is well established that a petition to open a default judgment is addressed to the lower court's equitable powers and is a matter of judicial discretion. Pappas v. Stefan, 451 Pa. 354 (1973); Balk v. Ford Motor Company, 446 Pa. 137 (1971). On appeal, the decision of the lower court will not be reversed unless there has been an error of law or a clear abuse of discretion. Pappas v. Stefan, supra; Balk v. Ford Motor Company, supra; Silverman v. ...


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