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JACK MACCLAIN v. PENN FRUIT (06/28/76)

decided: June 28, 1976.

JACK MACCLAIN, APPELLANT,
v.
PENN FRUIT, INC.



Appeal From the Orders Dated June 2 and 6, 1975, of the Court of Common Pleas, Trial Division, Law, for the County of Philadelphia, at No. 2203 of November Term, 1974. No. 1587 October Term, 1975.

COUNSEL

Weinstein, Leonard & Lebofsky, Associates, Stanley Lebofsky, Philadelphia, for appellant.

Lisa J. Holzsager, R. Borden, Philadelphia, for appellee.

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

Author: Price

[ 241 Pa. Super. Page 304]

The appellant in this case challenges the opening of a default judgment by the court below, alleging an abuse

[ 241 Pa. Super. Page 305]

    of discretion. We agree, and reverse the orders of the lower court.

On November 15, 1974, appellant filed a complaint in trespass in the Court of Common Pleas of Philadelphia County. Service was accomplished on November 25, 1974. On January 7, 1975, forty-seven days after service, plaintiff filed a praecipe for default judgment. Judgment was entered on the same day and notice under Pa.R.C.P. No. 236*fn1 was sent. On May 13, 1975, a rule was entered upon appellant to show cause why the judgment should not be opened or stricken. On June 2, 1975, the court entered an order opening the judgment, and, on June 6, 1975, this order was affirmed.

It is well established that a lower court's disposition of a petition to open a default judgment is a matter of discretion and will not be disturbed in the absence of a clear 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). Before a default judgment may be opened in a trespass action, two requirements must be met: (1) the petition to open must have been promptly filed, (2) the delay must be reasonably explained.*fn2 Ruczynski v. Jersey Construction Corp., 457 Pa. 510, 326 A.2d 326 (1974); Reliance Insurance Companies v. Festa, 233 Pa. Super. 61, 335 A.2d 400 (1975). Because we find that appellee did not present a reasonable explanation for its failure to answer appellant's complaint, we need not review the additional requirement.

[ 241 Pa. Super. Page 306]

In its petition to open the default judgment, appellee states that its store manager, Vincent Char, denies ever being served with a complaint. The sheriff's return, however, indicates that service of the complaint on appellant was made by serving V. Char, "agent or person for the time being in charge of defendant's office or usual place of business,"*fn3 at appellant's store at Wayne and Chelten Avenues in Philadelphia. A claim of false return of service is not grounds for setting aside a judgment because it is "long established that absent a showing of fraud, a Sheriff's return, true and regular on its face, is conclusive as to service of individuals present in Pennsylvania." Colucci v. Imperial, 414 Pa. 289, 292, 200 A.2d 297, 299 (1964). See also Einstein v. Forman, 212 Pa. Super. 450, 243 A.2d 181 (1968). Here, there being no allegation of fraud and no defect or irregularity in the sheriff's return, the fact of service is unassailable.

Appellee's assert in this appeal that the decision to open the judgment in the court below did not rest on a claim of failure of service or improper service, but rather on an alleged "mix-up" or "technical oversight" resulting in failure to forward the suit papers to appellee's corporate headquarters. No further ...


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