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SPROUSE v. KLINE-STYER-MCCANN (12/01/75)

decided: December 1, 1975.

SPROUSE
v.
KLINE-STYER-MCCANN, POST NO. 7155 VETERANS OF FOREIGN WARS (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas of Montgomery County, No. 69-2581 of 1974, in case of William B. Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars and Reuben Hookway and John Hurazoka and Frank Krenitz and Wilmer Hedges and Kline-Styer-McCann Veterans Home Association of Trappe, Pennsylvania, Ralph Martin, Paul Chamar, Frank Robb, and Clarence Eisenbise.

COUNSEL

Andrew B. Cantor, with him Wisler, Pearlstine, Talone, Craig & Garrity, for appellant.

Ronald I. Rosenstein, with him Rosenstein & Kleitman, for appellee.

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

Author: Price

[ 237 Pa. Super. Page 420]

This is an appeal from a lower court order dismissing appellant's petitions to open and to strike a default judgment rendered against him. The order of the lower court is reversed and the judgment is opened.

On April 2, 1967, plaintiff-appellee William B. Sprouse, the police chief of Trappe Borough, was injured while attempting to make a lawful arrest of a patron of a club located in the Veterans of Foreign Wars Building in Trappe Borough. Appellee's injuries were caused during a violent dispute with the intended arrestee, who was intoxicated. The club, or canteen, was

[ 237 Pa. Super. Page 421]

    operated by Kline-Styer-McCann Veterans Home Association (Association), a non-profit corporation composed of the living members of the Kline-Styer-McCann Post No. 7155 of the Veterans of Foreign Wars (Post). On the above-mentioned date, defendant-appellant Reuben Hookway was Commander of the Post and President of the Association.

On February 24, 1969, appellee filed a complaint in trespass, naming as defendants the Post, Association, and eight named individuals, one of whom was the appellant. On June 12, 1972, the appellee was granted a default judgment in the Court of Common Pleas of Montgomery County, against all of the defendants except the Association. Petitions to strike and to open the judgments were filed on behalf of all the individual defendants, and, on July 18, 1974, the judgments were stricken as to all of the petitioners except appellant. On this appeal, appellant contends that the lower court abused its discretion in refusing to open the judgment against him, or in the alternative, erred in refusing to strike the judgment.

The conditions precedent to opening a judgment have been oft repeated: (1) the petition to open must promptly be filed; (2) the default must reasonably be explained or excused; (3) a defense to the cause of action must be shown to exist upon the merits. Sta-Rite Industries, Inc. v. Century Water Treating, 230 Pa. Superior Ct. 285, 326 A.2d 425 (1974), and cases cited therein. We proceed, then, to consider whether the present case meets those conditions.

I

Appellee filed his complaint on February 24, 1969. Process was served by personally handing a copy of the complaint to appellant's wife, at his home, on February 27, 1969. The default judgment was entered on June ...


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