No. 282 January Term 1977, Appeal from the Order of the Superior Court at No. 429 October Term 1976 affirming the Order of the Court of Common Pleas of Philadelphia at No. 2301 July Term 1974
Community Legal Services, Inc., Steven P. Hershey, Luther E. Weaver, Jeffery W. Whitt, Philadelphia, for appellant.
Brenner & Brenner, Samuel B. Brenner, Alan B. Liss, Philadelphia, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., took no part in the consideration or decision of this case.
In this action in assumpsit against a husband and wife based on a breach of a loan agreement allegedly executed by both defendants, default judgment was entered against the wife-defendant at 9:45 a. m. on the twenty-first day following service of the complaint. The Court of Common Pleas denied a petition to open the judgment. The Superior Court affirmed the action of the Court of Common Pleas by a divided vote. Greater Finance Co. v. Harris, 245 Pa. Super. 8, 369 A.2d 266 (1976). Judge Spaeth filed a dissenting opinion in which Judges Price and Van der Voort joined. Id., 245 Pa. Super. at 13, 369 A.2d at 269. We granted allocatur.
The majority in the Superior Court concluded that the wife-defendant had demonstrated a valid defense to the plaintiff's claim*fn1 and had acted with due dispatch in filing the petition to open the judgment, but found that she had not shown sufficient excuse for failing to file a timely answer to the complaint and, hence, the Court of Common Pleas had not been guilty of an abuse of discretion in refusing to open the judgment.
We find the reasoning and conclusions expressed by Judge Spaeth persuasive.
The orders of the Court of Common Pleas and the Superior Court are reversed, and the record is remanded to the trial ...