Appeal from the Order dated October 15, 1975, of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 2301 July Term, 1974. No. 429 October Term, 1976.
Luther E. Weaver, Philadelphia, for appellant.
Samuel B. Brenner, Philadelphia, for appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Price and Van der Voort, JJ., join.
This is an appeal from an order denying a petition to open a judgment taken by default. For the reasons stated hereinafter, we affirm the order of the court below.
The cases are legion, the principles oft-cited, and the limitations of appellate inquiry well-defined. "Our review of the decision of the court below [on a petition to open a judgment by default] . . . is guided by several well established principles, foremost of which is that 'only when there has been an abuse of discretion by the court below in refusing to open a default judgment will this Court reverse . . . .' Kraynick v. Hertz, 443 Pa. 105, 109, 277 A.2d 144, 146 (1971). If the decision by the court below not to open the judgment was authorized by the law and supported by the facts, it will be sustained. Criscuolo v. Moore Farms, Inc., 222 Pa. Super. 323, 294 A.2d 895 (1972).
"The petition to open a default judgment is an appeal to the equitable discretion [ see Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Atlas Aluminum Corp. v. Methods Research Products Company, 420 Pa. 407, 218
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A.2d 244 (1966)] of the court which the court may exercise only when three factors coalesce: '(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.' McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973)." Slott v. Triad Distributors, Inc., 230 Pa. Super. 545, 549, 327 A.2d 151, 153, allocatur refused, 230 Pa. Super. xxviii (1974).
Appellee instituted an action in assumpsit against appellant Claudia Harris and her spouse Harold Harris on July 16, 1974, to recover for an alleged breach of a written contract for the loan of money. Service of a properly endorsed complaint was made upon the appellant, Claudia M. Harris on July 17, 1974. Twenty-one days later, on August 7, 1974, at 9:45 a. m., a snap judgment in the amount of $1,030.40 was entered in favor of appellees and against appellant for her failure to file a responsive pleading to the complaint. On August 12, 1974, appellee filed a writ of execution for the purpose of selling appellant's home to satisfy the judgment. Appellant's home was sold at a sheriff's sale on September 9, 1974. The record indicates that it was not until September 10, 1974, that the appellant sought the aid of Legal Services.
A petition to open judgment and set aside the sheriff's sale was docketed in the court below on September 24, 1974. The court below found that "the defendant has failed to set forth a sufficient excuse for the default,"*fn1 see Slott v. Triad Distributors, Inc., supra, and denied the petition.
The court below expressed the following considerations in its decision to deny the petition ...