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HOWARD A. HOFER v. LOYAL ORDER MOOSE WORLD (11/22/76)

decided: November 22, 1976.

HOWARD A. HOFER, APPELLANT,
v.
LOYAL ORDER OF MOOSE OF THE WORLD, MT. PLEASANT LODGE NO. 27, A NON-PROFIT CORPORATION



COUNSEL

Richard P. Jacob, Pittsburgh, for appellant.

Robert G. Weisgerber, Mount Pleasant, James R. Silvis, Greensburg, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Van der Voort, JJ. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Price

[ 243 Pa. Super. Page 344]

This is an appeal from an order of a court en banc opening a default judgment. We reverse and reinstate the default judgment.

The basis of this case is a contractual dispute. Plaintiff-appellant Howard A. Hofer is a building contractor whose corporate alter-ego entered into a written agreement with defendant-appellee Loyal Order of Moose of the World, Mt. Pleasant Lodge No. 27 to construct a building to serve its organization. The structure was completed near the end of 1968, and the Moose Lodge occupied it shortly thereafter. Problems arose regarding the final payment on the $93,000 contract price. The amount still owing was $9,300, ten per cent of the contract price, which was withheld pending final acceptance of the building. Payment was contingent upon the issuing of a final certificate by the job architect. The architect, James Gayton, compiled a "punch list" of changes or repairs which he felt were necessary prior to final acceptance. The principal concern was 900 square feet of floor space in the area designated as a lounge. The floor in this area was uneven or "wavy," making it unsuitable for the tables and chairs it was meant to accommodate. The parties attempted to reach a mutual decision on a remedy for this condition, but apparently were unable to do so.

On August 4, 1972, appellant filed a complaint in assumpsit seeking the remaining $9,300 of the contract price. Service was made upon appellee on August 10, and the attorney for appellee entered his appearance on August 30. On April 11, 1973, a default judgment was entered in favor of appellant based on appellee's failure to answer the complaint. Appellee filed a petition to open the judgment on June 1, 1973, and appellant answered. The court below appointed a commissioner to take testimony, make findings of fact and issue recommendations.

[ 243 Pa. Super. Page 345]

A hearing was held on October 23, 1973. The testimony and the commissioner's report, recommending that the judgment be opened, were subsequently filed. On August 13, 1975, the lower court, en banc, filed an opinion and order adopting and affirming the findings and conclusion of the commissioner.

A petition to open a default judgment is an appeal to the equitable power of a court, and it is thus generally stated that a lower court's disposition of such a petition will not be overturned absent an error of law of a manifest abuse of discretion. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Jost v. Phoenixville Area School District, 237 Pa. Super. 153, 346 A.2d 333 (1975). When an action is cast in assumpsit, three requisite elements must coalesce before a default judgment may be opened: (1) the petition to open must have been promptly filed; (2) the failure to file a timely answer to the complaint must be reasonably explained in the petition; and (3) a meritorious defense must be incorporated in the petition. Jost v. Phoenixville Area School District, supra.

The default judgment herein was taken on April 11, 1973. Notice of this action was communicated to appellee's counsel by letter dated April 13, 1973, and was received on April 14, 1973. Appellee filed his petition to open the judgment on June 1, 1973, approximately forty-seven days after receiving notice of its entry. In McCoy v. Public Acceptance Corp., supra, 451 Pa. at 500, 305 A.2d at 700, our supreme court stated that "filing the petition to open after two and one-half weeks can hardly be considered prompt." There is certainly no bright line in this area, however, and a determination of prompt filing or its absence must be based on all the circumstances.

In explanation of the six to seven week delay between its receipt of notice of the default ...


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