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DICO COMPANY v. JOHN NOVAK AND GLADYS NOVAK (03/12/79)

submitted: March 12, 1979.

DICO COMPANY, INC.
v.
JOHN NOVAK AND GLADYS NOVAK, HIS WIFE, APPELLANTS



No. 216 March Term, 1978, Appeal from the Order of the Court of Common Pleas of York County, Civil Division, at No. 76-S-2731.

COUNSEL

D. Patrick Zimmerman, Lancaster, for appellants.

Michael W. King, York, for appellee.

Van der Voort, Watkins and Lipez, JJ.

Author: Lipez

[ 268 Pa. Super. Page 443]

Appellee filed a Complaint in Assumpsit against appellants on September 2, 1976. Appellants' motion for more

[ 268 Pa. Super. Page 444]

    specific pleading was granted, and appellee filed an Amended Complaint on July 22, 1977. Appellants made no response thereto, and a default judgment was taken against them on September 28, 1977. Their Petition to Open Judgment, filed November 3, 1977, was denied by the court below.

For a court to open a judgment, the following conditions must be met: (1) the petition to open was filed promptly; (2) a reasonable excuse is given for the failure to respond; and (3) the petitioner presents a meritorious defense. Sprouse v. V. F. W. Post 7155, 237 Pa. Super. 419, 352 A.2d 134 (1975). Such a petition is an appeal to the court's equitable discretion. Int'l Equity Corp. v. Pepper and Tanner, Inc., 222 Pa. Super. 118, 293 A.2d 108 (1972).

I. Gladys Novak

We conclude that appellant Gladys Novak's petition to open the judgment was filed promptly. The default judgment was entered September 28, 1977. Appellants' original attorney, Mark Woodbury, III, Esquire, had been on vacation prior thereto, and did not return until October 7, 1977. By that time, appellants had engaged D. Patrick Zimmerman, Esquire, to represent them. Sometime between October 7 and 18, Zimmerman telephoned Woodbury asking for information concerning the case. Zimmerman also made the same request by letter on October 19. Woodbury forwarded the requested information by mail on October 17. Appellants met with Zimmerman in his office on Sunday, October 30, and the petition was filed November 3, less than a week after Zimmerman had received the necessary information. See Sprouse v. V. F. W. Post No. 7155, supra.

Gladys Novak's failure to respond to the complaint is excused by the conduct of Woodbury and her husband, which lulled her into a false sense of security concerning the matter. She testified, on deposition, that Woodbury had told her in a telephone conversation that "it ...


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