No. 1146 April Term 1978, Appeal from Order of the Court of Common Pleas of Allegheny County, Pa., Civil Action-Law, at GD No. 78-5900.
James M. Burton, Pittsburgh, for appellant.
Howard F. Messer, Pittsburgh, for appellees.
Van der Voort, Spaeth and Watkins, JJ.
[ 269 Pa. Super. Page 394]
This is an appeal from an order denying appellant's petition for a rule to show cause why a default judgment should not be opened.
On March 15, 1978, appellees instituted an action in trespass against appellant, which was served on March 20, with notice to plead. On May 24, appellees entered default judgment.*fn1
The court may, in the exercise of its discretion, refuse to issue a rule to show cause why equitable relief should not be granted where the petition for the rule fails to set forth clearly and specifically sufficient facts to warrant the relief. Liberty National Bank of Pittstown v. DiGillio, 406 Pa. 127, 176 A.2d 446 (1962); Carducci v. Albright Galleries, Inc., 244 Pa. Super. 48, 366 A.2d 577 (1976). Here, the lower court denied appellant's petition on the ground that appellant had not averred a sufficient explanation for the failure to answer a requirement that is by now axiomatic. Carducci v. Albright Galleries, Inc., supra.*fn2
Appellant's petition alleged:
8. Petitioner failed to respond . . . due to a corporate employee error by the aforesaid employee filing the Complaint in his desk, after undertaking investigation of the case.
10. Petitioner avers that it was misled by the Complaint which named Graziano Construction Company, Inc.,
[ 269 Pa. Super. Page 395]
as a co-defendant, since Graziano is not and was not either employed by Petitioner or responsible ...