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TELLES v. ROSE-TEX (03/31/75)

decided: March 31, 1975.

TELLES, APPELLANT,
v.
ROSE-TEX, INC.



Appeal from order of Court of Common Pleas of Lehigh County, Sept. T., 1973, No. 553, in case of Herbert I. Telles, t/a Textile Management Associates v. Rose-Tex, Inc.

COUNSEL

Michael J. Piosa, with him Worth & O'Hara, for appellant.

Wilbur C. Creveling, Jr., with him Walker, Thomas, Karess, Lipson & Zieger, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Hoffman, J. Watkins, P. J., dissents. Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 233 Pa. Super. Page 182]

Appellant contends that the lower court erred in opening a default judgment entered against the appellee.

On September 4, 1973, the appellant, Herbert Telles, trading as Textile Management Associates, filed a complaint in assumpsit against the appellee, Rose-Tex, Inc.,

[ 233 Pa. Super. Page 183]

    for $2,496.00 in damages allegedly due appellant as compensation for its services in finding an employee for appellee. The complaint was served on appellee on September 6. On September 10, appellee's Comptroller, Paul Levande, wrote to appellant acknowledging receipt of the complaint. On October 2, 1973, appellee's president wrote to appellant, repeating in substance the letter of September 10. On October 3, appellant's counsel wrote to appellee and informed it that although the normal twenty-day period in which to file an answer had expired, appellee would be given until October 12, 1973, to file an answer. Appellant's counsel warned appellee that a default judgment would be taken if appellee failed to file an answer within that additional period. No answer was filed. On October 29, 1973, more than two weeks after the grace period which appellant allowed appellee, and more than a month after the expiration of the twenty-day period, appellant had judgment by default entered against appellee. The same day, appellant's counsel notified appellee by mail of the default judgment. On December 28, 1973, almost two months after notice of entry of default judgment, and almost four months after appellee's officers had acknowledged notice of this action, appellee filed a petition to open the judgment. On May 13, 1974, after depositions and argument, the lower court granted appellee's petition.

Opening a judgment is a matter committed to the discretion of the lower court. Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966). Nevertheless, that discretion may be exercised "only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; (3) the failure to appear can be excused." Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971) (footnote omitted). On the record of this case, it does not appear that appellee has properly complied with any of the three requirements.

Appellee received notice of the default judgment by letter dated October 29, 1973, but did not file its petition

[ 233 Pa. Super. Page 184]

    to open until December 28, 1973, more than eight weeks later. In Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973), our Supreme Court held that an eight-week delay between the notice of entry of default judgment and the filing of a petition to open rendered the petition untimely, and therefore reversed the lower court's order opening judgment. Appellee offers two reasons for the delay in filing: some statements apparently made by appellant's counsel to the effect that execution would not issue on the judgment until the appellee consulted his counsel, and the fact that suit was brought in Lehigh County, rather than in Luzerne County, where the appellee maintained its principal Pennsylvania office. Neither provides a sufficient justification for the delay. Appellant would normally have at least twenty years in which to levy execution upon the appellee's personal property.*fn1 The fact that appellant's counsel was willing to delay execution for a matter of days or weeks does not excuse appellee's delay in filing its petition. Neither the "distance" between the two counties, nor the need to retain local counsel, cited by appellee, ...


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