No. 417 October Term, 1978, Appeal from the denial of Petition to Open a Default Judgment in the Court of Common Pleas of Philadelphia County, June Term, 1977, No. 2230.
Stephen B. Lavner, Philadelphia, for appellant.
Kenneth C. Miller, Philadelphia, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Cercone, J., files a dissenting opinion. Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 517]
This is an appeal from an order denying a petition to open a default judgment.
Appellee, via complaint, initiated this action in assumpsit on July 17, 1977 with service on the appellant effected the next day. Counsel for appellant, on August 1, 1977, procured an extension of time to file a responsive pleading until September 1, 1977. However, on September 7, 1977, no pleading having been filed by appellant in response to the complaint, default judgment was entered in favor of the appellee. On October 6, 1977, appellant filed a petition to open the default judgment, which was answered by appellee on October 26, 1977. On November 3, 1977, the lower court denied appellant's petition, finding that appellant had not advanced sufficient reason to excuse his failure to file an answer on time. This appeal followed.
Before the lower court can exercise its discretion and open a default judgment, the petitioner must satisfy three criteria: (1) that the petition to open was promptly filed; (2) that a legitimate explanation exists for the default; and (3) that a defense on the merits exists. Schutte v. Valley Bargain Center, 248 Pa. Super. 532, 375 A.2d 368 (1977).
[ 260 Pa. Super. Page 518]
The lower court found that the appellant had not properly explained his failure to answer. Appellant argues that this was an abuse of discretion and we should, therefore, reverse. We disagree.
Initially, we note that the procedure dictated by Pa.R.C.P. § 209 was not followed here.*fn1 However, since neither party has raised this issue, we decline to consider it, sua sponte.
The problem facing us is whether the lower court erred in holding that appellant failed to reasonably explain or offer a legitimate excuse for the delay that occasioned the default judgment. In making this determination, we are guided by the principle that the lower court decision will not be overturned on appeal absent an error of law or a clear, manifest abuse of discretion.*fn2 McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973), Jenkins v. Murray, 250 Pa. Super. 519, 378 A.2d 1269 (1977).
Appellant's petition alleges that he mistakenly believed a responsive pleading was to be filed after he contacted counsel and that this ...