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VINCENT CARDUCCI v. ALBRIGHT GALLERIES (03/29/76)

decided: March 29, 1976.

VINCENT CARDUCCI
v.
ALBRIGHT GALLERIES, INC., APPELLANT



Appeal From the Order Dated May 7, 1975 of the Court of Common Pleas of Allegheny County, Civil Division at No. 1018 January Term, 1975 No. 599 April Term, 1975.

COUNSEL

David F. Weiner, Pittsburgh, for appellant.

William J. Ivill (submitted), Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents.

Author: Cercone

[ 244 Pa. Super. Page 49]

This is an appeal from the order of the Court of Common Pleas of Allegheny County refusing to open a default judgment in an assumpsit action. The facts, as can best be discerned from the cryptic record before us, are as follows.

[ 244 Pa. Super. Page 50]

On October 29, 1974, the plaintiff-appellee, Vincent Carducci, filed a complaint in assumpsit alleging that the defendant-appellant, Albright Galleries, Inc., failed to compensate him for services rendered pursuant to an oral contract of employment. Howard Albright, president of the defendant corporation, was personally served with a copy of the complaint on November 6, 1974. No appearance or answer having been filed by the defendant, plaintiff took a default judgment on December 4, 1974. On that same day, notice of the default judgment was mailed to the defendant by the prothonotary. On January 27, 1975, the defendant filed a petition seeking to open the judgment. On February 28, 1975, plaintiff filed an answer to the defendant's petition to open. By opinion and order of May 7, 1975, the court below denied and dismissed defendant's petition. This appeal followed.

It is axiomatic that a petition to open a default judgment is addressed to the lower court's equitable powers, and the court's decision in this regard will not be disturbed in the absence of a clear abuse of discretion. McCoy v. Public Acceptance Corporation, 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Hersch v. Clapper, 232 Pa. Super. 550, 335 A.2d 738 (1975). Furthermore, it is well settled that "[a] petition to open a default judgment should not be granted unless (1) the petition has been promptly filed, (2) the default can be reasonably excused and (3) a meritorious defense can be shown. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973) and Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963)." Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974). Instantly, appellant has failed to satisfy two of the above requisite conditions and, therefore, the court below did not abuse its discretion in declining to open the judgment.

[ 244 Pa. Super. Page 51]

As previously mentioned, notice of the entry of the default judgment was mailed by the prothonotary to the appellant on December 4, 1974. Appellant's petition to open, however, was not filed until January 27, 1975; fifty-four days after the judgment. The appellant has offered no explanation for this delay. In Pappas v. Stefan, supra, the Supreme Court held that a fifty-five day delay in filing the petition to open was fatal. In Texas & B. H. Fish & Game Club v. Bonnell Corp., 388 Pa. 198, 130 A.2d 508 (1957), the Court held that a petition filed twenty-seven days after notice of the default was untimely. More recently, we concluded that even a three-week delay was not sufficiently prompt. Smith v. Tonon, 231 Pa. Super. 539, 331 A.2d 662 (1975). In the case at bar, we hold that an unexplained delay of approximately fifty-four days renders appellant's petition untimely.

In addition, the appellant has not reasonably explained its failure to file an answer to the appellee's complaint. The president of the appellant corporation explains that when he read the complaint he observed the number 1018 January 1975 stamped on it and thought that he had until some time in January to file an answer. In other words, the appellant offers the mistake of its president as an excuse for its failure to timely defend the action. We believe this excuse is insufficient since it is not disputed that the complaint contained a notice to plead in proper form, and it is not alleged that the president of the appellant corporation was mentally deficient and therefore unable to comprehend the significance of the service. In Kilgallen v. Kutna, 226 Pa. Super. 323, 326, n. 5, 310 A.2d 396, 398 (1973) we stated that "mere ignorance or inexperience with the legal process is by ...


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