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JOHN SHAINLINE T/D/B/A SHAINLINE EXCAVATING v. ALBERTI BUILDERS (05/04/79)

decided: May 4, 1979.

JOHN SHAINLINE T/D/B/A SHAINLINE EXCAVATING
v.
ALBERTI BUILDERS, INC., APPELLANT



No. 1361 October Term, 1978, Appeal from Order of the Court of Common Pleas of Chester County, Civil Division, No. 187 November Term, 1977.

COUNSEL

Larry David Yogel, Philadelphia, for appellant.

George Zumbano, Paoli, for appellee.

Cercone, Hester and Hoffman, JJ. Cercone, J., concurs in the result.

Author: Hester

[ 266 Pa. Super. Page 133]

This is an appeal from an Order of the Court of Common Pleas of Chester County denying a petition to open a default judgment. For the reasons which follow, we reverse and remand for further proceedings.

On November 17, 1977, appellee Shainline Excavating filed its complaint in assumpsit seeking payment from appellant for services rendered at a construction site in Chester County, Pennsylvania. Service was made on November 23, 1977 on appellant Alberti Builders, Inc., at its business offices in Bala Cynwyd, Pennsylvania. Appellant's president, Francis Alberti, phoned counsel for Shainline and informed him he had been served and wished to defend the suit. Alberti, on November 25, 1977, mailed the complaint to its counsel in Philadelphia, who apparently did not receive the complaint until December 19, six days after an answer was due. On that same day, no appearance entered or answer filed, appellee Shainline took judgment by default. The petition to open was filed four days later on December 23, and an answer soon followed in which appellee denied the factual averments in appellant's petition. Supplemental memorandae were later presented to the court. Counsel were informed that the court would dispose of the matter on petition, answer, and briefs and on April 6, 1978, the court denied the petition. This appeal followed.

Our task on review is well settled. A petition to open a default judgment in assumpsit is an appeal to the equitable power of the court and is to be exercised only when three factors coalesce: 1) the petition has been

[ 266 Pa. Super. Page 134]

    promptly filed; 2) a meritorious defense can be shown; 3) there is a reasonable excuse for failure to file an answer. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); St. Joe Paper Company v. Marc Box Company, Inc., 260 Pa. Super. 515, 394 A.2d 1045 (1978). This court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear, manifest abuse of discretion is shown. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Epstein v. Continental Bank & Trust Company, 260 Pa. Super. 522, 394 A.2d 1049 (1978); Nevils v. Chernitsky, 244 Pa. Super. 501, 368 A.2d 1297 (1976).

Appellee concedes that appellant acted promptly (four days) in filing the petition to open, but contends that no meritorious defense is shown and that the default has not been reasonably explained.

In its petition to open, appellant alleged merely that it would "raise the defense of substantial failure of consideration." However, in its supplemental memorandum,*fn1 appellant avers:

"The [second] criteria which must be made is that the party seeking to open judgment must have a meritorious defense. As stated in the Petition, Defendant would assert that there has been a substantial failure of ...


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