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GEORGE F. HOUCK AND DOROTHY M. HOUCK v. JAMES R. COLEMAN (08/31/79)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 31, 1979.

GEORGE F. HOUCK AND DOROTHY M. HOUCK, APPELLANTS,
v.
JAMES R. COLEMAN, JR., KATHLEEN M. COLEMAN, FOUNTAIN HILL AMERICAN LEGION POST NO. 406 AND FOUNTAIN HILL AMERICAN LEGION POST NO. 406 HOME ASSOCIATION

No. 2396 October Term 1978, Appeal from Order of the Court of Common Pleas of Lehigh County, Civil Action at No. 618 June Term, 1977.

COUNSEL

James L. Reich, Allentown, for appellants.

Michael P. Shay, Bethlehem, for appellees Fountain Hill American Legion Post No. 406 and Fountain Hill American Legion Post No. 406 Home Ass'n.

John S. Kokonos, Philadelphia, did not file a brief on behalf of appellees Coleman.

Price, Spaeth and Lipez, JJ.

Author: Per Curiam

[ 268 Pa. Super. Page 581]

A petition to open a default judgment is an appeal to the discretion of the lower court. St. Joe Paper Co. v. Marc Box Co., Inc., 260 Pa. Super. 515, 394 A.2d 1045 (1978). Here the lower court granted the petition. The court held that appellees' twenty-nine day delay in filing the petition was not excessive under the circumstances, since a reasonable period of time was necessary to investigate the facts in support of the petition. The court also held that appellees' failure to answer the complaint was reasonably explained by the confusion resulting from the method of service and the delay in the complaint reaching appellees' attorney and insurer. Moreover, the court found other equitable considerations favoring the opening of the judgment, including the existence of what could be meritorious defense, see Balk v. Ford Motor Co., 446 Pa. 137, 140 n. 3, 285 A.2d 128, 130 n. 3

[ 268 Pa. Super. Page 582]

(1971) (existence of meritorious defense not necessary to open judgment in trespass action but is equitable consideration), the possibility of unjust enrichment, and appellants' failure to give appellees notice of intent to take a default judgment. From our review of the record, we cannot hold that the court abused its discretion.

Affirmed.

19790831

© 1998 VersusLaw Inc.



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