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DAVID W. BOLLINGER v. DAVID F. CRESSMAN (07/13/79)

decided: July 13, 1979.

DAVID W. BOLLINGER, T/A BOLLINGER ELECTRIC
v.
DAVID F. CRESSMAN, APPELLANT



No. 2208 October Term, 1977, Appeal from the Order of the Court of Common Pleas of Lehigh County, Civil Action-Law, No. 785 September Term, 1976.

COUNSEL

Robert O. Van Horn, Allentown, for appellant.

Malcolm J. Gross, Allentown, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ.

Author: Price

[ 267 Pa. Super. Page 537]

The instant appeal is brought from the order of the Court of Common Pleas of Lehigh County, Civil Division, denying appellant's petition to open a default judgment. For the reasons stated herein, we affirm that order dated July 5, 1977.

The facts giving rise to this appeal are as follows. On September 24, 1976, appellee filed a complaint in assumpsit against appellant. The suit arose out of electrical sub-contracting work performed by appellee for Cressman Development Corporation, a construction corporation of which appellant was president. Appellant was also involved in two other corporate ventures, D. F. Cressman Contracting Corporation and Lone Pine Estates Corporation. He was personally served with the complaint at his home by a deputy sheriff on September 27, 1976. Appellant examined the complaint, noticed that it listed David F. Cressman as the defendant, and included copies of the invoices for the electrical work performed by appellee; although the work was allegedly performed for Cressman Development Corporation, the invoices listed appellant as the debtor. He concluded, however, that since the work was performed for the corporation, he could not be held personally liable. Because Cressman Development Corporation was bankrupt, appellant took the complaint into the house and simply "put it away." He neither referred the complaint to corporate counsel, as he had on two prior occasions when he was served in his capacity as a corporate officer and when the corporations in question were viable entities, nor did he discuss the complaint with any of the other officers of Cressman Development Corporation. On October 28, 1976, a default judgment in the amount of $35,521.85 was entered against appellant for failure to file an answer. Appellant received notice of the entry of that judgment on October 29, 1976. At that

[ 267 Pa. Super. Page 538]

    time, he retrieved the complaint and displayed it to the other officers of the corporation, who ventured an opinion that appellant could be held personally liable on the complaint; this suspicion was confirmed when appellant met with his attorney on November 2, 1976. By letter dated November 6, 1976, appellant's counsel requested that appellee voluntarily strike the judgment; appellee refused in a letter dated November 17, 1976.

On November 29, 1976, appellant filed a petition to open the default judgment. Appellee thereafter filed an answer, depositions were taken and the matter argued orally before the court. On July 5, 1977, the court below filed an order denying appellant's petition to open the judgment. In his petition, appellant claimed that because he thought the complaint was directed to Cressman Development Corporation and that he could not be held personally liable, this properly excused his failure to answer appellee's complaint. The court below found otherwise, and we agree.

The principles applicable to this appeal are well established. A petition to open a default judgment is an equitable proceeding, see, e. g., Wenger v. Ziegler, 424 Pa. 268, 226 A.2d 653 (1967); Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966), and will not be reversed absent an abuse of discretion. See, e. g., Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Greater Finance Co. v. Harris, 245 Pa. Super. 8, 369 A.2d 266 (1976). A petition to open will not be granted unless three conditions are met: (1) the petition to open must be promptly filed; (2) the defendant must establish a meritorious defense; and (3) the failure to file a timely answer must be reasonably excused. See, e. g., Broad Mountain Club, Inc. v. Lazur, 461 Pa. 668, 337 A.2d 599, cert. denied, 423 U.S. 1020, 96 S.Ct. 458, 46 L.Ed.2d 392 (1975); Ruczynski v. Jesray Const. Corp., 457 Pa. 510, 326 A.2d 326 (1974). All of these criteria must be met, and the failure to satisfy all of them requires the denial of the petition to open.

[ 267 Pa. Super. Page 539]

The court below found that appellant failed to establish any of these criteria. We need not pass upon the first two criteria since it is clear that the petition to open was properly denied based solely upon the failure of appellant to ...


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