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INSTAPAK CORPORATION v. S. WEISBROD LAMP & SHADE CO. (06/29/77)

decided: June 29, 1977.

INSTAPAK CORPORATION, APPELLANT,
v.
S. WEISBROD LAMP & SHADE CO., INC., APPELLEE



Appeal from Order dated Sept. 3, 1975 of the Court of Common Pleas of Philadelphia County, May Term, 1975, No. 4870.

COUNSEL

Arthur L. Pressman, Philadelphia, for appellant.

Marc R. Gordon, Philadelphia, for appellee.

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

Author: Spaeth

[ 248 Pa. Super. Page 178]

This is an appeal from an order opening a default judgment. We have concluded that in opening the judgment the lower court abused its discretion. Accordingly, we reverse and remand for further proceedings.

On May 23, 1975, appellant commenced the action by filing a complaint in assumpsit. On July 9, the complaint was reinstated. A Sheriff's return of service indicates that a copy of the complaint was served on appellee on July 10. Subsequent returns indicate that appellee was also served on July 17, and July 21. On July 31 appellant took a default judgment. On August 4 appellee served on appellant a copy of a Petition to Open the Default Judgment along with a notice to respond. On August 14 both appellee's petition to open and appellant's answer to the petition were filed.*fn1 On September 3, without benefit of argument or further proceedings, the lower court ordered the judgment opened.

Before granting the petition to open the judgment, the lower court was obliged to make three findings: (1) the petition was filed promptly after the judgment; (2) the

[ 248 Pa. Super. Page 179]

    petition discloses a meritorious defense;*fn2 and (3) there was a reasonable excuse for the failure to have filed an answer within the prescribed time. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Here there is no dispute that the petition was filed promptly, and that it discloses a meritorious defense (in fact, a counterclaim to the underlying action was alleged in the proposed answer to the complaint attached to the petition). The issue is whether the lower court could find that there was a reasonable excuse for appellee's failure to have filed an answer to appellant's complaint within the prescribed time.

[ 248 Pa. Super. Page 180]

The petition to open, when read in a light favorable to appellee, alleges that appellee was served with the complaint a total of three times; that at the time of the first service appellee's business was closed for vacation;*fn3 that confusion resulted from the multiple service; and that through its counsel appellee believed that it had twenty days from July 17*fn4 (the date of the second service) to file an answer, rather than twenty days from July 10. If appellee had proved these allegations, and if the lower court had found on the basis of them that appellee had a reasonable excuse for having failed to file an answer within twenty days of July 10, we should not reverse, for the decision to grant a petition to open a judgment is within the sound discretion of the lower court and will not be reversed absent a mistake of law or abuse of discretion. Johnson v. Yellow Cab Co. of Philadelphia, 226 Pa. Super. 270, 307 A.2d 423 (1973); Samuel Jacobs Distributors, Inc. v. Conditioned Air., Inc., 223 Pa. Super. 466, 301 A.2d 907 (1973); Moyer v. Page 180} Americana Mobile Homes, Inc., 244 Pa. Super. 441, 368 A.2d 802 (filed Dec. 15, 1976). Cf. Lewis v. Reid, 244 Pa. Super. 76, 366 A.2d 923 (1976). The difficulty is, however, that appellee did not prove its allegations.

As has been mentioned, appellant filed an answer to the petition to open. In the answer appellant denied that appellee's counsel had had any mistaken belief about the date by which an answer had to be filed. According to the answer the following occurred. On July 16 appellee's counsel telephoned the office of appellant's counsel to request an extension of time in which to respond to the complaint. Appellant's counsel was out of town but the call was taken by a partner of appellant's counsel. The partner relayed the request for an extension to appellant's counsel, who denied it. These allegations were supported in appellant's answer by (1) a copy of a letter from appellant's ...


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