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MCEVILLY ET AL. v. TUCCI ET AL. (03/29/76)

decided: March 29, 1976.

MCEVILLY ET AL.
v.
TUCCI ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1974, No. 5070, in case of James P. McEvilly, Jr., and Joan E. McEvilly v. Anthony Tucci and Mary Tucci.

COUNSEL

Arnold Dranoff, with him Glickman, Dranoff & Colins, for appellants.

James P. McEvilly, Jr., in propria persona, and James E. Mugford, Sr., submitted a brief for appellees.

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

Author: Hoffman

[ 239 Pa. Super. Page 476]

Appellants contend that the lower court abused its discretion in denying their petition to open a default judgment.

Appellees-lessees, and appellants-lessors, executed a written lease for a residence located at 1951 King Arthur's Road in Philadelphia. The original lease was effective from September 1, 1972, until August 31, 1973, but the parties agreed to extend the lease for an additional year until August 31, 1974. As a condition of the lease, appellees deposited $500.00 with appellants as security for performance of their obligations under the lease. On May 24, 1974, appellees sent timely notice of their intention not to renew the lease for an additional period.

On August 29, 1974, two days before the lease expired, appellees filed a complaint in assumpsit, alleging that they had surrendered the premises to appellants' agent on July 23, 1974, and that because more than thirty days had passed since the surrender of the premises and appellants had not returned their security deposit, they were entitled to damages in double the amount of their security deposit. See 68 P.S. ยง 250.512.*fn1 Although appellees were aware of appellants' address in New York State,*fn2 they served appellants as non-residents pursuant to Rule 2079, Pa.R.C.P. On October 18, 1974, because appellants had not filed an answer, appellees entered a default judgment. On January 7, 1975, appellants filed a petition to open, which was granted by order of Judge Sabo on March 7, 1975. The order

[ 239 Pa. Super. Page 477]

    opening the judgment gave appellants twenty days in which to respond to appellees' complaint.

It is undisputed that the parties then engaged in settlement negotiations. On March 18, 1975, appellants' attorney sent the following letter to appellee, James P. McEvilly:*fn3

"In accordance with our conversation of March 18, 1975, I am sending this letter to confirm the fact that you are granting me an additional 20 days beyond the period specified in Judge Sabo's Order in which ...


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