No. 2139 October Term, 1979, Appeal from the Order dated September 27, 1979 of the Court of Common Pleas, Civil Action-Law, of Luzerne County at No. 8064 of 1976.
Arthur L. Piccone, Wilkes-Barre, for appellant.
B. Todd Maguire, Wilkes-Barre, for Funke & Sons, appellees.
Anthony B. Panaway, Wilkes-Barre, for Borough of Ashley, appellee.
Price, Cavanaugh and Watkins, JJ.
[ 281 Pa. Super. Page 221]
The sole issue on this appeal is whether the court below erred in granting the petition of the appellee, Borough of Ashley, to open a default judgment.
The facts in this case, which are substantially undisputed, are as follows. Wrongful death and survival actions were commenced by the Administratrix of the estate of a thirteen year old boy who was killed as a result of an accident which allegedly involved the Borough of Ashley and others. A copy of the complaint was served on the secretary of the Borough of Ashley on August 16, 1976. In August or September, 1976, the secretary gave the complaint to the Borough Solicitor, Bernard J. Hendrzak, Esquire, ". . . assuming that he took care of all legal matters . . . ." The Borough had established no procedure to be followed in the event of a lawsuit and according to the solicitor this was the first lawsuit against the Borough. The Borough secretary had never received instructions from any of the councilmen or the mayor as to what her duties were. She testified, "Our previous secretary died and I took over, you know, without knowing a thing about it and I don't think anybody
[ 281 Pa. Super. Page 222]
else knew anything." Mr. Hendrzak, who had been Borough solicitor for some time prior to August, 1976, and remained the solicitor until at least April of 1978, acknowledged receiving the complaint from the secretary at a council meeting, probably on the second Monday of September, 1976. Mr. Hendrzak assumed that the insurance company had been notified of the suit and that they were going to defend the action in the normal way. He then put the copy of the complaint in the Borough file and did nothing else concerning it. The matter was next brought to his attention when he received notice that a default judgment had been entered by the appellant against the Borough on November 4, 1977 for failure to file an answer or enter an appearance. On November 10, 1977 Mr. Hendrzak wrote to counsel for appellant requesting that a stipulation be entered allowing the opening of the judgment and the filing of a responsive pleading.*fn1 The attorney for the appellant advised Mr. Hendrzak that he would not agree to opening the default judgment.*fn2 On August 10, 1978, appellee, Borough of Ashley, filed a petition to open the default judgment. By order
[ 281 Pa. Super. Page 223]
of September 27, 1979, the court below granted the petition and the Borough of Ashley was permitted to enter an appearance and file a responsive pleading. From this order, the appellant has filed this appeal.
The law is clear with respect to opening of judgments entered by default. A court should exercise its equitable discretion in opening a default judgment only where the following three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear or file an answer can be excused. Day v. Wilkie Buick Company, 239 Pa. Super. 71, 73, 361 A.2d 823, 824 (1976).*fn3 Since the grant or denial of a petition to open a default judgment is within the court's equitable powers, the discretion of the court will not be overturned unless there is a clear, manifest abuse of discretion. St. Vladimir Ukranian Orthodox Church ...