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ALEXANDER ET UX. v. JESRAY CONSTRUCTION COMPANY ET AL. (10/28/75)

decided: October 28, 1975.

ALEXANDER ET UX.
v.
JESRAY CONSTRUCTION COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Montgomery County, No. 74-04976, in case of Lawrence R. Alexander, M.D., and Ellyn K. Alexander, h/w v. Jesray Construction Company, Executive Park Homes, Inc., and Jesse Gutman, individually.

COUNSEL

Lawrence F. Flick, with him Alan Jay Josel, and Menin, Flick, Josel & Barrish, for appellants.

Melvin Brookman, and Shein & Brookman, submitted a brief for appellees.

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

Author: Cercone

[ 237 Pa. Super. Page 101]

Appellants contend that the lower court abused its discretion in refusing to open a judgment entered by default in favor of the plaintiffs, Dr. and Mrs. Lawrence Alexander. We agree and, therefore, reverse.

On April 10, 1974, the plaintiffs filed a complaint in assumpsit and trespass against appellant-defendants Jesray Construction Company, Executive Park Homes, Inc., and Jesse Gutman, individually, alleging that defendants failed to comply with certain agreements relative to the construction of plaintiffs' home. Plaintiffs further alleged that defendant Gutman fraudulently induced them to make settlement prior to the completion of the construction of their home. The complaint was duly served upon defendants on May 7, 1974. On May 28, 1974, the attorney for the defendants, Lawrence F. Flick, Esq. requested and received from plaintiffs' counsel, Allan Dabrow, Esq., a thirty-day extension of time in which to file an answer. No answer, however, was filed within the thirty-day period.

On July 12, 1974, at 9:27 a.m. plaintiffs' counsel caused a default judgment to be entered against defendants for failure to enter an appearance or file an answer. At 4:28 p.m. on the very same day, defendants' answer was filed. Five days later defendants filed a petition to open judgment. After plaintiffs filed their answer to the petition, and depositions were taken, the lower court dismissed the petition to open judgment. This appeal followed.

It is fundamental that "a petition to open a default judgment is addressed to the lower court's equitable powers and is a matter of judicial discretion." Hersch v. Clapper, 232 Pa. Superior Ct. 550, 552, 335 A.2d 738, 740 (1975) and cases cited therein. Accordingly, we will

[ 237 Pa. Super. Page 102]

    not disturb the lower court's decision on these matters unless there has been an error of law or a clear abuse of discretion. Hersch v. Clapper, supra.

A default judgment should be opened when the petitioner has satisfied the following three requirements: (1) the petition has been promptly filed; (2) the petitioner has offered a reasonable explanation for his failure to go timely forward with the action; and (3) the petition has set forth a meritorious defense. Hersch v. Clapper, supra; Spilove v. Cross Trans., Inc., 223 Pa. Superior Ct. 143, 145-146 (1972).

In the case at bar, the plaintiffs concede that defendants have satisfied the first requirement since the petition to open was filed five days after the taking of the default judgment. The plaintiffs contend, however, that defendants have not met the other two criteria for opening a judgment, namely, a reasonable explanation ...


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