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SAFEGUARD INVESTMENT COMPANY v. ENERGY SERVICE ASSOCIATES (10/20/78)

decided: October 20, 1978.

SAFEGUARD INVESTMENT COMPANY
v.
ENERGY SERVICE ASSOCIATES, INC., WEST PENN POWER COMPANY, ALLEGHENY POWER SERVICE CORPORATION, MURRAY FRIEDLANDER, BERNARD FRIEDLANDER AND WILLIAM SHIELDS. APPEAL OF WEST PENN POWER COMPANY AND ALLEGHENY POWER SERVICE CORPORATION. SAFEGUARD INVESTMENT COMPANY V. WEST PENN POWER COMPANY, ALLEGHENY POWER SERVICE CORPORATION AND ALLEGHENY POWER SYSTEM, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-04764. Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD77-04763.

COUNSEL

George M. Weis, Pittsburgh, for appellants.

Howard R. Singer, Pittsburgh, for appellee, at Nos. 104 and 105.

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

Author: Price

[ 258 Pa. Super. Page 513]

These appeals are from the orders of the lower court dismissing appellants' petitions to open default judgments. We reverse.

On March 17, 1977, West Penn Power Company and Allegheny Power Service Corporation were served, as were the four other defendants, with a complaint in assumpsit. (Appeal No. 104). Simultaneously, plaintiff Safeguard Investment Company served a complaint in equity on West Penn Power, Allegheny Power Service Corporation and Allegheny Power System. (Appeal No. 105).*fn1

[ 258 Pa. Super. Page 514]

The day after service was effectuated appellants' attorney entered his appearance. On April 6, 1977, the twenty-first day after service, Safeguard's attorney entered default judgments. No notice or warning was given to appellants or their attorney of record prior to the entry of the judgments. On the next business day, April 11, appellants' attorney, unaware of the judgments, filed preliminary objections alleging an adequate remedy at law in the equity action.

Notice of the entry of the defaults was received on April 12, 1977. On April 15, 1977, appellants filed petitions to open the judgments entered in both actions.*fn2 Attached to the petition was the answer to the complaint in assumpsit. The answer had been forwarded to appellants on April 7th for execution of the necessary affidavits.

"A petition to open a default judgment is an appeal to the equitable discretion of the court and should be . . . [granted] only when three factors coalesce; (1) the petition to open must be filed promptly; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense: McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698 (1973) . . . ." Ruggiero v. Phillips, 250 Pa. Super. 349, 353, 378 A.2d 971, 973 (1977) (further citations omitted).

The only question in this case is whether the failure to answer was excused. Appellants contend that they did not answer prior to the entry of the default because they had no notice a default would be entered and because preparation of the responses took a substantial amount of time due to the peculiar facts of the case.

Safeguard's claim arose out of an alleged contract for the sale of coal. The actual parties to ...


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