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WARREN ZINCK v. SMASHY'S AUTO SALVAGE (10/06/77)

decided: October 6, 1977.

WARREN ZINCK, APPELLANT,
v.
SMASHY'S AUTO SALVAGE, INC. AND CITY OF PHILADELPHIA



No. 1260 October Term 1976, Appeal from Order of the Court of Common Pleas, Trial Division, Law, for the County of Philadelphia, October Term, 1975, No. 1564.

COUNSEL

Ernest E. Jones, Philadelphia, for appellant.

William J. Honig, Philadelphia, for appellee.

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

Author: Spaeth

[ 250 Pa. Super. Page 554]

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

On October 15, 1975, appellant filed a complaint in assumpsit to recover the value of an automobile that he alleged had been misappropriated by appellee, Smashy's Auto Salvage, Inc., and by the City of Philadelphia. The

[ 250 Pa. Super. Page 555]

    complaint was served on appellee on October 21, and on the City on October 22. The City entered an appearance on November 5; appellee did not enter an appearance, nor did it file an answer within twenty days of service. On November 19 appellant's counsel wrote to appellee, stating that appellee had a legal duty to answer the complaint and that if no answer was filed appellant would take a default judgment against appellee. On November 21 counsel conveyed the same message to an employee of appellee by telephone, and set December 1 as the date by which he would look for an answer. Appellee still did not file an answer. On December 3 appellant took default judgment. Appellee filed the petition to open the judgment on January 22, 1976.

It is commonly said that a petition to open a judgment is an appeal to the equity powers of the court and is a matter largely within its discretion. See, e. g., Walters v. Harleysville Mutual Casualty Co., 417 Pa. 438, 207 A.2d 852 (1965). However, before the lower court may exercise its discretion, the petitioner must establish (1) that the petition to open was promptly filed, (2) that a legitimate explanation exists for the default, and (3) that he has a meritorious defense. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Appellant does not argue that the first of these requirements was not met; the issue is whether the second one was.*fn1

In its petition appellee averred that it had filed no answer to the complaint because it "believed that [its] interests would be protected by the City of Philadelphia in the . . . suit." In an accompanying memorandum of law counsel for appellee stated that appellee "reasonably expected, and in good conscience believed, after consultations, that the City

[ 250 Pa. Super. Page 556]

    of Philadelphia would in fact represent [its] interests." The lower court found these averments alone insufficient, ...


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