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KDI SYLVAN POOLS v. DELTA PLASTICS COMPANY (07/27/79)

decided: July 27, 1979.

KDI SYLVAN POOLS, INC., APPELLANT
v.
DELTA PLASTICS COMPANY, INC.



No. 1533 October Term, 1978, Appeal from a Final Order of the Court of Common Pleas of Bucks County, Civil Division, entered on April 26, 1978, at No. 76-9620-04.

COUNSEL

Robert R. Reeder, Philadelphia, for appellant.

Sean O'Callaghan, Philadelphia, for appellee.

Van der Voort, Hester and Wieand, JJ. Wieand, J., files a dissenting statement.

Author: Hester

[ 268 Pa. Super. Page 236]

This is an appeal from an order of the Common Pleas Court of Bucks County opening a default judgment.

Appellant initiated this assumpsit action via complaint on October 12, 1976. Service was effected through the Secretary

[ 268 Pa. Super. Page 237]

    of the Commonwealth on appellee (a California corporation) three days later. The suit papers eventually arrived at the Philadelphia office of appellee's insurance carrier on November 16, 1976. The answer to the complaint already overdue, appellee's insurance carrier contacted appellant's counsel and secured, apparently, an unlimited extension of time. However, three days later, the carrier received a letter from appellant's attorney which stated that appellant would take no further action provided counsel for appellee entered an appearance within 45 days. No appearance having been entered, appellant took judgment by default on January 7, 1977 (50 days after the 45-day extension was granted). Since there was no counsel of record, appellant forwarded the notice of default to appellee's president, who received it on January 11, 1977. Appellant, having been contacted by the insurance carrier, then sent a letter on February 3, 1977, which stated in the concluding paragraph:

"If at this time you feel that this case is not negotiable, then I might suggest that the only recourse you would have at this time would be to file a Petition to Open Judgment. If I do not hear from you within thirty (30) days from the above date, we shall commence execution proceedings against Delta Plastics Company, Inc. in California." (R. 41a)

The petition to open was filed March 4, 1977, and the lower court opened the judgment on July 14, 1978.

Appellant asserts that none of the three requirements to open a default judgment was satisfied and therefore the action of the lower court in opening the judgment was an abuse of discretion.

Appellee, in order to open the judgment, had to (1) file the petition to open promptly; (2) satisfactorily explain his failure to appear or timely file an answer; and (3) allege with specificity a meritorious defense. Epstein v. Continental ...


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