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CITY PHILADELPHIA v. NEW SUN RAY DRUG (12/07/78)

decided: December 7, 1978.

CITY OF PHILADELPHIA
v.
NEW SUN RAY DRUG, INC., T/A SUN RAY DRUG CO. AND WILLIAM H. SYLK AND WILLIAM CRISS AND THOMAS M. SYLK. THOMAS M. SYLK, ADMINISTRATOR OF THE ESTATE OF WILLIAM H. SYLK, DECEASED, APPELLANT. (2 CASES)



Appeals from the Orders of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia v. New Sun Ray Drug, Inc., Sun Ray Drug Co., William H. Sylk, William Criss and Thomas Sylk, No. 1767 March Term, 1971.

COUNSEL

Michael H. Egnal, with him Jeffrey L. Rudnick, and, of counsel, Egnal & Egnal, P.A., for appellants.

Stewart M. Weintraub, Assistant City Solicitor, with him Joel S. Luber, Assistant City Solicitor, Beryl E. Hoffman, Deputy City Solicitor, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellee.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 39 Pa. Commw. Page 112]

William H. Sylk*fn1 has appealed from orders of the Court of Common Pleas of Philadelphia County, one dated February 10, 1977 denying the prayer of his petition for a rule on the City of Philadelphia to show

[ 39 Pa. Commw. Page 113]

    cause why a judgment entered by it against him on January 11, 1972 for his failure to file an answer to a complaint in equity should not be opened, and the second, dated March 18, 1977, denying the prayer of his petition for reconsideration of the order dated February 10, 1977 just mentioned.

The City of Philadelphia filed a complaint in equity on March 10, 1971 naming as defendants the New Sun Ray Drug, Inc., and certain of its officers and directors, including the appellant, William H. Sylk, who was described as president and a director of New Sun Ray Drug, Inc. The city averred that the corporation had failed to file returns and pay wage taxes imposed by the city Wage and Income Tax Ordinance; that the city had assessed the defendant corporation for wage taxes due and unpaid in the amount of $40,579.54, plus interest and penalties; and that the individual defendants, including the appellant, William H. Sylk, during the relevant tax periods had control of the corporate defendant's assets and business. The city sought, inter alia, a decree declaring the individual defendants to be trustees ex maleficio, and that they be ordered to pay the taxes, interest and penalties owed by the corporate defendant. The complaint was personally served by a deputy sheriff on each defendant, including the appellant, on March 15, 1971. No defendant entered an appearance or filed an answer and a judgment by default was entered against all defendants, including, of course, the appellant, on January 11, 1972, a date, it is noticed, almost ten months after the complaint was served. A final decree, ordering each and all of the defendants to pay taxes totaling $38,179.54 plus interest and penalties was signed by a judge of the court below on April 21, 1975.

The appellant, William H. Sylk, says that the court below erred or manifestly abused its discretion in refusing

[ 39 Pa. Commw. Page 114]

    his application for a rule on the city to defend its judgment. The rules governing review of default judgments are well settled:

A petition to open is an appeal to the court's equitable powers and is a matter for judicial discretion. This Court will not reverse a lower court ruling, either opening or refusing to open a default judgment unless there was an error of law or a clear, manifest abuse of discretion in this class of case. In determining whether a lower court has abused its discretion we have stated that three factors should be considered and must coalesce before a default judgment can be opened: (1) the petition to open must be promptly filed; (2) the ...


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