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REED SHAW STENHOUSE PENNSYLVANIA v. J. A. NEISER COMPANY (10/20/78)

decided: October 20, 1978.

REED SHAW STENHOUSE OF PENNSYLVANIA, INC., FORMERLY KNOWN AS INSURANCE CONSULTANTS, INC., APPELLEE,
v.
J. A. NEISER COMPANY, ALLIED CRAFTSMEN, INC. AND JULIUS NEISER, INDIVIDUALLY, APPELLANTS



No. 143 April Term, 1978, Appeal from Orders of the Court of Common Pleas, Civil Division of Allegheny County, at No. GD 77-04315.

COUNSEL

Joseph A. Steedle, Pittsburgh, for appellants.

Stephen J. Laidhold, Pittsburgh, for appellee.

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

Author: Per Curiam

[ 260 Pa. Super. Page 193]

This is an appeal from two Orders of the Court of Common Pleas of Allegheny County, Pennsylvania. The first, under date of July 14, 1977*fn1 dismissed the heretofore issued Rule (dated April 21, 1977) to show cause why the default

[ 260 Pa. Super. Page 194]

    judgment entered against appellants on April 12, 1977, should not be opened and appellants let into a defense. The second, under date of July 28, 1977,*fn2 denied appellants' Motion to Strike Judgment.

The facts are as follows: Appellee filed a complaint in assumpsit against appellants on February 28, 1977. Service of process was duly made upon each appellant on March 22, 1977.

On April 12, 1977, the twenty-first day following service, a default judgment was entered upon praecipe against the appellants in the amount of $9,478.00, together with interest and costs.

On April 21, 1977, a rule to show cause issued why the judgment taken by default should not be opened and appellants let into a defense.

On May 23, 1977, the deposition of the individual appellant was taken, the official transcript filed, oral argument followed, and on July 14, 1977, the lower court entered its order dismissing the previously issued rule to show cause. Thereafter this appeal.

A petition to open a judgment taken by default is an appeal to the equitable and discretionary powers of the court. Each such petition must stand on its own peculiar set of operative facts. In order for the court to exercise its discretion and open a judgment taken by default in an assumpsit action, three factors must coalesce: (1) The petition to open must be promptly filed; (2) A meritorious defense must be shown; and (3) The moving party must reasonably explain its failure to timely file a responsive pleading. Moreover, "the ruling of the lower court opening or refusing to open will ...


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