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CATHERINE NEVILS v. ALDON CHERNITSKY (12/15/76)

decided: December 15, 1976.

CATHERINE NEVILS, APPELLEE,
v.
ALDON CHERNITSKY, T/A BLAKE HOME IMPROVEMENTS, APPELLANT



No. 850 October Term, 1976 Appeal from the Order dated December 18, 1975 of the Court of Common Pleas, Trial Division, Law of the County of Philadelphia, Pennsylvania, at No. 354 June Term, 1975.

COUNSEL

Michael H. Yanoff, Norristown, with him Norman Ashton Klinger, Norristown, for appellant.

No appearance entered nor brief submitted for appellee.

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

Author: Cercone

[ 244 Pa. Super. Page 502]

This is an appeal from an order dismissing a petition to open a default judgment.

Appellant, Aldon Chernitsky, over the course of three years contracted with appellee Catherine Nevils for various

[ 244 Pa. Super. Page 503]

    repairs and improvements to appellee's home. On June 3, 1975, a complaint was filed by appellee alleging appellant failed to perform or to properly perform certain of these repairs and improvements and claiming damages of $1,850.00. The complaint was served on June 15, 1975, and on July 16, 1975, a default judgment was entered against appellant for failure to file an answer. Appellant, a Philadelphia resident, had accompanied his wife, who required medical treatment, to Hazelton, Pennsylvania. When he returned August 1, 1975, he discovered the notice of the default judgment against him. He sought the advice of an attorney who told him not to worry about the judgment since all his property was held by the entireties. Appellant, himself, was hospitalized from October 6 through October 16, 1975 and then confined to his home with a heart condition. Although the assessment of damages hearing on the default judgment was held October 16, 1975, appellant's petition to open was not filed until November 20, 1975. An answer to the petition was filed December 5, 1975 and on December 18, 1975 the petition was dismissed.

Since he had given notice of his intent to file depositions, appellant claims the court below erred when it dismissed his petition to open thirteen days after the answer had been filed, without benefit of a hearing in compliance with Pa.R.C.P. 209 on disputed issues of fact raised in the petition and answer.

As it has been repeatedly stressed by our Supreme Court and by this court, a petition to open a judgment is a matter of judicial discretion, an appeal to the equitable powers of the court. This power will be exercised where three factors coalesce: (1) the petition to open has been promptly filed; (2) a meritorious defense has been shown; (3) the failure to file a timely answer has been reasonably explained or excused. The ruling of the lower court opening or refusing to open will not be reversed unless an error of law or a clear, manifest

[ 244 Pa. Super. Page 504]

    abuse of discretion is shown. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1975); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); ...


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