No. 694 April Term, 1977, Appeal from the Order, dated March 28, 1977, of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division -- Law, at GD76-21974.
Carl Gainor, Pittsburgh, with him Snyder & Gainor, Pittsburgh, for appellant.
Donald W. Bebenek, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 562]
Appellant contends that the lower court erred in opening a default judgment entered against appellee, Penn Hills School District. We find this contention to be without merit and affirm the order of the lower court.
On April 3, 1975, appellant, Philip A. Maruccio, was injured while participating in an evening adult education workshop class at the John Linton Intermediate School of the Penn Hills School District in Allegheny County, Pennsylvania. On September 30, 1976, appellant filed a complaint in trespass and assumpsit against the following defendants: (1) Houdaille Industries, Inc., (2) Tranter Manufacturing Company, and (3) Penn Hills School District. On December 3, 1976, a default judgment was entered against appellee, Penn Hills School District (School District). On January 14, 1977, the School District petitioned the lower court to open the judgment. After a hearing, the court below ordered the judgment to be opened. This appeal followed.
The rules governing review of default judgments by appellate courts in this Commonwealth have been stated in many cases. A petition to open a default judgment is an appeal to the lower court's equitable powers and is a matter for judicial discretion. E. g., McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967). An appellate court will not reverse a lower court ruling on a petition to open a default judgment unless there was an error of law or a clear abuse of discretion.*fn1 E. g., Goble v. S. Klein on the Square, 430 Pa. 93, 242 A.2d 251 (1968); Flynn v. Silvers, 389 Pa. 142, 132 A.2d 180 (1957). In determining whether a lower court has abused its discretion, an appellate court must consider whether three factors have coalesced: (1) the petition to
[ 254 Pa. Super. Page 563]
open must be timely filed, (2) the default must be reasonably explained or excused, and (3) the party seeking to open the judgment must show a meritorious defense.*fn2 E. g., Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 326 A.2d 326 (1974); McCoy v. Public Acceptance Corp., supra. In the instant case, appellant concedes that the School District was able to present a defense on the merits to the cause of action. We need therefore address only the issues of whether the petition to open was timely filed and whether the default was reasonably explained.
The School District explained its failure to respond by stating that it believed that it was being properly represented by its Solicitor, Mr. John Tighe. The record shows that Mr. Sylvio Roberty, Secretary and Business Manager of the School District, was served with a notice of suit and a copy of the complaint on October 21, 1976. At deposition, Mr. Roberty testified that he spent several days investigating the accident upon which the legal action was based*fn3 and then, on October 26, 1976, forwarded all papers to the School District's Solicitor. Mr. Roberty further testified that the School District, in addition to contacting its Solicitor, had also notified its insurance carrier of the accident shortly after its occurrence.*fn4 Mr. Roberty also related that prior to December 7, 1976, when he received notice that a default judgment had been entered against the School District, he believed that Mr. Tighe was doing everything necessary to
[ 254 Pa. Super. Page 564]
protect the School District's interests. After receiving notice of the default judgment, Mr. Roberty testified that he immediately contacted Mr. Tighe, who advised Mr. Roberty, by letter dated December 8, 1976, to convey all legal papers to the School District's insurance carrier which was, in Mr. Tighe's opinion, properly responsible for the handling of the matter. On December 10, 1976, Mr. Roberty forwarded all relevant papers ...