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TOPLOVICH ET AL. v. SPITMAN ET AL. (03/29/76)

decided: March 29, 1976.

TOPLOVICH ET AL.
v.
SPITMAN ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Warren County, May T., 1975, No. 20, in case of Paul E. Toplovich, Jr., and Patricia Ann Toplovich v. Walter C. Spitman and Patricia A. Spitman.

COUNSEL

Michael E. Dunlavey, with him Orton & Nygaard, for appellants.

Douglas Rozelle, for appellees.

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

Author: Van Der Voort

[ 239 Pa. Super. Page 328]

Appeal is taken to this Court from an Order of the lower court denying appellants' petition to open judgment. The record shows appellees' complaint in equity was filed on May 8, 1975 and service thereof made on May 9, 1975. On May 28, 1975, appellants' counsel asked for and received from counsel for appellees a one week's extension of time in order to answer the complaint. On May 29, 1975, appellants' counsel entered his appearance. By counsel's agreement, appellants' answer became due on June 6, 1975, a Friday. On the following Tuesday, June 10, 1975, appellees filed a praecipe for judgment, which judgment was entered on their behalf. The record reflects that appellants' answer was filed on June 12, 1975. On June 19, 1975, appellants filed a petition to open the judgment. This relief was denied by Order of July 9, 1975.

Preliminarily we deny appellants' motion before our Court to quash appellees' brief, finding that the record is sufficiently complete for our purposes.*fn1

"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

[ 239 Pa. Super. Page 329]

    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 (footnote omitted); and

(3) The failure to appear can be excused." Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971). Our considerations as to the presence or absence of these requirements is tempered by our application of equitable principles, for we sit as would a chancellor in equity to determine how best justice can be served. Kanai v. Sowa, 109 Pa. Superior Ct. 426, 167 A. 429 (1933) and Oppenheimer v. Shapiro, 163 Pa. Superior Ct. 185, 60 A.2d 337 (1948). Our deliberations of an equitable nature will be addressed to a weighing of the prejudices inflicted upon the opposing parties by ...


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