decided: March 29, 1976.
WILLIAM PENN REALTY COMPANY ET AL.
Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1974, No. 5361, in case of Marcella H. Barron v. William Penn Realty Company and Jilan Corporation and David Carroll and W. B. Fairweather, Jr., Co-partners t/a Carroll & Fairweather.
John Mattioni, with him Mattioni, Mattioni & Mattioni, for appellant.
Edward R. Paul, with him Walter J. Timby, Jr., James M. Marsh, and LaBrum and Doak, for appellee, William Penn Realty Company.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Spaeth, J. Cercone, J., joins in this opinion.
[ 239 Pa. Super. Page 216]
Appellant contends that the lower court erred in opening a default judgment entered against appellee William Penn Realty Company. We agree and will therefore reinstate the default judgment.
On October 30, 1972, the appellant, Mrs. Marcella Barron, was injured when she fell down the stairs of a Philadelphia apartment building. On January 31, 1974, Mrs. Barron, who was a third floor tenant in the building, filed a complaint in trespass against the following defendants: (1) William Penn Realty Company; (2) Jilan Corporation; and (3) David Carroll and W. B. Fairweather, Jr., trading as Carroll & Fairweather, a partnership. These defendants were described in the complaint as being "the owners, operators, possessors and in sole possession, custody and control of the property."
[ 239 Pa. Super. Page 217]
On February 6, 1974, William Penn Realty Company received service of the complaint, and thereafter delivered the complaint, properly endorsed with notice to plead, to the United States Liability Insurance Company (USLIA). After receiving the complaint, USLIA instructed its retained counsel to represent only Jilan Corporation and David Carroll individually. On February 22, 1974, USLIA's counsel, as directed, entered an appearance "on behalf of JILIAN [sic] CORPORATION AND DAVID CARROLL, INDIVIDUALLY, Defendants. . . ." No appearance was made for William Penn Realty Company, W. B. Fairweather, or Carroll & Fairweather.
On February 21, 1974, USLIA's counsel filed preliminary objections to appellant's complaint, alleging that the appellant had improperly attached interrogatories and a request for documents to the complaint. On May 7, 1974, the trial court sustained the preliminary objections. On May 23, 1974, appellant entered a default judgment against William Penn Realty Company. Appellant then gave notice of the judgment to the appellee, which notified USLIA. On October 11, 1974, the appellee, now represented by USLIA's counsel, filed a petition to open the default judgment. On January 23, 1975, the court below ordered that the default judgment be opened and that the appellee be permitted to assert a defense. This appeal followed.
A lower court's disposition of a petition to open a default judgment is a matter of discretion, and will not be overturned in the absence of a clear, manifest abuse of that discretion. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). In determining whether a lower court has abused its discretion, we must consider whether three factors have coalesced: (1) the petition to open was promptly filed, (2) the default was reasonably explained, and (3) a defense on the merits was shown to exist.*fn1
[ 239 Pa. Super. Page 218]
Co., 446 Pa. 137, 285 A.2d 128 (1971) (insurance carrier lost insured's court papers during the heavy mail rush of a New Year's holiday period); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971) (overworked employee failed to notify the insurance carrier of plaintiff's suit until after entry of default judgment.)*fn3 We find that the lower court*fn4 abused its discretion in opening the default judgment.
The order of the lower court is reversed, and the default judgment is reinstated.
Order reversed and default judgment reinstated.
Concurring Opinion by Spaeth, J.:
It is necessary only to examine the petition to open, and appellant's answer to the petition, to reach the conclusion that it was an abuse of discretion to open the default judgment. Since depositions were not taken, the averments contained in the answer to the petition to open must be taken as true. Smith v. Dale, 405 Pa. 293, 296, 175 A.2d 78, 80 (1961); Pa. R.C.P. 209 (b). Consequently, appellee did not give a reasonable explanation of its default, and it was therefore error to open the default judgment.