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DAY v. WILKIE BUICK COMPANY (ET AL. (03/29/76)

decided: March 29, 1976.

DAY
v.
WILKIE BUICK COMPANY (ET AL., APPELLANT)



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1973, No. 547, in case of Joan Ellen Day v. Wilkie Buick Company and Buick Motor Division, General Motors Corporation.

COUNSEL

William V. Coleman, with him Frazer Hilder, and Liebert, Short, Fitzpatrick & Lavin, for appellant.

Charles A. Harad, with him Steinberg and Girsh, for appellee.

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

Author: Van Der Voort

[ 239 Pa. Super. Page 72]

Appeal is taken to this Court from an Order of the lower court denying appellant's petition to open judgment. Appellee had filed suit in trespass on October 3, 1973, and obtained service on appellant General Motors on October 11, 1973, by handing a copy of the complaint

[ 239 Pa. Super. Page 73]

    to a secretary-receptionist at appellant's authorized agent.*fn1 Appellee obtained judgment on February 20, 1974, for appellant's failure to file an answer. Our Supreme Court in Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971), stated the applicable requirements as follows:

"As we have had occasion to reiterate several times recently, a petition to open a judgment is a matter of judicial discretion, is an appeal to the court's equitable powers, and is to be exercised only when three factors coalesce:

(1) the petition has been promptly filed;

(2) a meritorious defense can be shown;*fn*

(3) the failure to appear can be excused. A lower court's ruling opening or refusing to open will not be reversed unless there has been an error of law ...


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