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WILLIAM P. MOYER AND SHARON A. MOYER v. AMERICANA MOBILE HOMES (12/15/76)

decided: December 15, 1976.

WILLIAM P. MOYER AND SHARON A. MOYER, HIS WIFE, APPELLEES,
v.
AMERICANA MOBILE HOMES, INC., ET AL., APPELLANTS



Appeal From the Order Refusing to Open Default Judgment of the Court of Common Pleas of Clinton County, Honorable Carson v. Brown, P.J., Civil Action, Law at No. 49 April Term, 1974 in Trespass and Assumpsit. No. 1479 October Term, 1976.

COUNSEL

H. Clay McCormick, Williamsport, with him John E. Person, III, Williamsport, for appellants.

Lee H. Roberts, Lock Haven, for appellees.

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

Author: Cercone

[ 244 Pa. Super. Page 442]

This appeal was taken from the denial of a petition to open a default judgment. The praecipe for a default judgment was filed on the twenty-first day after service

[ 244 Pa. Super. Page 443]

    of the complaint which initiated this action in trespass and assumpsit. Appellant petitioned to open and was denied. After reargument, it was denied again. This appeal followed.

Service of the complaint on appellant, Americana Mobile Homes, Inc., was made on the corporation's registered agent in the Commonwealth on April 29, 1974. The agent forwarded it to the corporation's Cleveland attorney who sent it to the insurance broker. The insurance broker in turn sent it to the insurance carrier, American Mutual Ins. Co. It reached the carrier on or about May 7, 1974. Mr. Padley of American Mutual called Attorney John C. Youngman, Jr. of Candor, Youngman, Gibson & Gault, a law firm in Williamsport, Pennsylvania, and Mr. Youngman agreed to take the case. At this time Mr. Youngman was unaware that his partner John Gault was already representing the other defendants. The conflict of interest was discovered on May 9, 1974 when Mr. Gault, having noticed that no attorney had yet appeared for Americana, called Mr. Padley to find out who was representing them. When Mr. Padley told him he had spoken to Mr. Youngman, Mr. Gault informed him that it would not be possible for Mr. Youngman to represent Americana since it would create a conflict in their office. When Mr. Padley asked Mr. Gault to find other counsel for the case, Mr. Gault suggested Neafie Mitchell and agreed to talk to him about taking the case. Since Mr. Padley had put the file in the mail to Mr. Youngman, Mr. Youngman agreed to forward it to Mr. Mitchell. Both Mr. Gault and Mr. Youngman separately spoke to Mr. Mitchell about representing appellant, but Mr. Mitchell wanted to see the file before committing himself to do so especially since he also might have had a conflict on another matter with American Mutual which would prevent him from accepting the case. Neither Mr. Gault nor Mr. Youngman advised American Mutual of Mr. Mitchell's hesitancy about accepting the case.

[ 244 Pa. Super. Page 444]

Further confusion ensued when the file was inadvertently misplaced upon its arrival at Mr. Youngman's office. When Mr. Youngman asked his secretary if the file had been forwarded to Mr. Mitchell, she mistakenly informed him that it had been. This error was not discovered until May 22, 1974 when Mr. Gault received notice that plaintiff's attorney had filed a praecipe for a default judgment against Americana. Literally "turning the office upside down," Mr. Gault found the file and took it to Mr. Mitchell, who then declined to take the case. Finally, Mr. Gault got Attorney H. Clay McCormick to take the case. Mr. McCormick called plaintiff's counsel and asked him to voluntarily open the judgment. Three days after judgment had been entered, plaintiff's counsel informed Mr. McCormick that he would not open the judgment, and consequently, Mr. McCormick filed his petition to open.

A petition to open is an appeal to the discretion of the court. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Before the discretion of the court will be exercised to open a default judgment in a trespass action the petition to open must be filed promptly and the delay must be reasonably explained or excused.*fn1 If the equities are otherwise clear, a meritorious defense need not be demonstrated. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). A lower court's ruling opening or refusing to open will not be reversed unless an error of law or a clear, manifest abuse of discretion is shown. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Silverman v. Polis, 230 Pa. Super. 366, 326 A.2d 452 (1974).

Appellant indisputably met the first requirement of promptly filing a petition to open, since the petition was filed three days ...


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