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NICHOLAS HATGIMISIOS v. DAVE'S N.E. MINT (12/02/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 2, 1977.

NICHOLAS HATGIMISIOS, APPELLANT,
v.
DAVE'S N.E. MINT, INC.

No. 2092 October Term 1976, Appeal from Order of June 7, 1976 of the Court of Common Please, Trial Div., of Phila. County as of LAW-December Term, 1975, No. 1706.

COUNSEL

Paul M. Goldstein, Philadelphia, for appellant.

Martin A. Ostrow, Philadelphia, for appellee.

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

Author: Spaeth

[ 251 Pa. Super. Page 276]

Appellant sued appellee in replevin. When appellee failed to answer interrogatories, appellant, acting under Philadelphia Civil Rule 4005(d),*fn1 took default judgment. The lower court granted appellee's petition to open the judgment, and this appeal followed.

Opening a default judgment is a matter of judicial discretion. That discretion, however, is to be exercised only if three requirements are first met: (1) the petition to open has been promptly filed; (2) a legitimate explanation exists for the delay that prompted the default judgment; and (3) a meritorious defense is averred. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Here, appellee has failed to meet the first requirement.

The default judgment was entered on April 6, 1976. Appellant's counsel notified appellee's counsel of the judgment by a letter dated April 7. On May 14, that is, thirty-seven days after entry of the judgment, appellee filed its petition to open. The petition did not aver that it had been promptly filed, nor did it aver any reason why it had not been filed for thirty-seven days. Thirty-seven days is not a very long delay, and might not be hard to explain; but

[ 251 Pa. Super. Page 277]

    unexplained it is too long. See Schutte v. Valley Bargain Center, Inc., 248 Pa. Super. 532, 375 A.2d 368 (1977) (forty-seven days); Texas & B.H. Fish Club v. Bonnell Corp., 388 Pa. 198, 130 A.2d 508 (1957) (twenty-seven days; prejudice shown). Especially is this so since, given the provisions of Philadelphia Rule 4005(d), appellee had at least forty days notice of appellant's intention to take the default judgment.*fn2 Under these circumstances, the lower court erred in opening the judgment.*fn3

Reversed; judgment reinstated.


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