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MAURICE GOLDSTEIN COMPANY v. RALPH MARGOLIN (06/29/77)

decided: June 29, 1977.

MAURICE GOLDSTEIN COMPANY, INC.
v.
RALPH MARGOLIN, T/A MARGO REALTY, APPELLANT



Appeal from the Order dated Aug. 21, 1975 of the Court of Common Pleas of Philadelphia County, Pennsylvania, Trial Division, Law at at No. 4251, Nov. Term, 1972.

COUNSEL

David L. Pollack, Philadelphia, for appellant.

Richard D. Malmed, Philadelphia, for appellee.

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

Author: Spaeth

[ 248 Pa. Super. Page 164]

This is an appeal from an order denying a petition to open a default judgment. Because the order was entered prematurely, we remand for further proceedings.

On December 1, 1972, appellee filed a complaint in assumpsit against appellant. The complaint was served on the manager of the apartment house where appellant lived, in accordance with Pa.R.C.P. 1009(b)(2)(ii). No answer having been filed, appellee took a default judgment on February 23, 1973. From November 26, 1973, through April, 1975, appellee undertook to execute on the judgment;*fn1 incident to this, on or about April 12, appellant was notified of an attachment proceeding.

On May 16, 1975, appellant petitioned to open the default judgment, alleging (1) that he had never received notice of the original action because the manager of the apartment house did not deliver the complaint to him; (2) that when he did learn of the default judgment, he promptly filed his petition to open; and (3) that the complaint named him individually whereas he had never traded individually but only as "Margo Realty Corporation." Thus, appellant attempted to satisfy the three requirements for a successful petition: an excuse for the failure to file an answer, prompt filing of the petition, and a meritorious defense. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971).

In its answer to the petition, filed on May 30, 1975, appellee alleged, as to the first requirement, that the apartment house manager told appellee's attorney that he had

[ 248 Pa. Super. Page 165]

    delivered the complaint to appellant. Later, after the answer was filed, appellee also contested the third requirement by way of an affidavit of the Secretary of State of the State of Delaware that "Margo Realty Corporation" had never been registered in Delaware.*fn2

On August 21, 1975, the lower court denied appellant's petition. In an opinion filed on August 29, 1975, the court held that appellant had not shown a sufficient excuse for its failure to file an answer:

Service is the manner of notifying the [appellant] of the action brought against him. [Appellant] now argues that even though service was proper he did not, in fact, receive any notice of the original action. To support such allegation the [appellant] submits no supporting evidence other than an affidavit stating that he did not receive notice of the original action. [Appellee], by [appellant's] own ...


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