Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 901, in case of Ruth Fishman v. Benjamin Noble, Inc. and Elbon Realty Corporation.
Simon J. Denenberg, with him Abramson & Denenberg, for appellant.
Francis X. Brennan, with him Swartz, Campbell & Detweiler, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Van der Voort, J., dissents.
[ 236 Pa. Super. Page 612]
This appeal is from the order of the Court of Common Pleas of Philadelphia County opening a default judgment entered against the appellee, Elbon Realty Corporation, for want of an appearance.
The appellant, Ruth Fishman, alleged that on or about October 19, 1972, she sustained a serious injury as a result of a fall which occurred on a defective side-walk adjacent to the building owned by the appellee, Elbon Realty Corporation, and occupied by the tenant-appellee, Benjamin Noble, Inc.
On January 9, 1974, the appellant filed a complaint against both parties. In October, 1972, the appellant's attorney notified the appellees concerning appellant's claim and subsequent thereto appellant's attorney had numerous communications and correspondence with Lumberman's Mutual Casualty Company, the insurance carrier for both of the appellees. The complaint was forwarded to the appellees' insurance company. The insurance company instructed the appellees' attorney to enter an appearance for Benjamin Noble, Inc., only, which was done on January 31, 1974.
[ 236 Pa. Super. Page 613]
Appellant's counsel informed counsel for the appellees he was going to file praecipe to enter judgment against the appellee, Elbon Realty Corporation, on March 11, 1974. On June 6, 1974, attorney for appellee was informed by the insurance company that the appellee was a named insured on Noble's policy by endorsement. On June 16, 1974, a petition to open the default judgment was filed and the order granting the petition was entered October 18, 1974.
The reason given for the erroneous instructions from the local office of the insurance company was that they were not aware of the dual coverage until they received a copy of the declaration sheet from the home office after the entry of the judgment.
The law in this area is well settled that the order of the court below will be reversed for opening or refusing to open a default judgment only when there has been an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971).
The discretion is to be exercised only when three factors coalesce: (1) The Petition has been promptly filed; (2) A meritorious defense can be shown; ...