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QUAKER TRANSIT COMPANY v. JACK W. BLUMENFELD AND COMPANY. APPEAL JACK W. BLUMENFELD (04/18/80)

filed: April 18, 1980.

QUAKER TRANSIT COMPANY, INC.
v.
JACK W. BLUMENFELD AND COMPANY. APPEAL OF JACK W. BLUMENFELD



No. 28 October Term, 1979 Appeal from Order of the Court of Common Pleas, Civil Action, Philadelphia County, entered December 7, 1978, at No. 858, July Term, 1978.

COUNSEL

A. Jay Molluso, Philadelphia, for appellant.

Malcolm M. Blumberg, Philadelphia, for appellee.

Wieand, Robinson and Louik, JJ.*fn*

Author: Wieand

[ 277 Pa. Super. Page 394]

In this action of assumpsit to recover charges for moving, the complaint was served on July 17, 1978. Twenty-two days later, on August 8, 1978, the plaintiff took a default judgment for $3,951.21 because of defendant's failure to

[ 277 Pa. Super. Page 395]

    enter an appearance or file an answer. The trial court refused to open the judgment, and defendant appealed. We reverse.

A petition to open judgment is a matter of judicial discretion. It is an appeal to the court's equitable powers, and is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; (3) the default can be excused. A trial court's refusal to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); B.C.Y., Inc. v. Bukovich, 257 Pa. Super. 121, 390 A.2d 276 (1978).

In the instant case, the petition to open was filed on August 22, 1978, only fourteen days after the default judgment had been entered. This, as the trial court found, complied with the first requirement. The second factor was also present, for defendant alleged an express agreement by plaintiff to perform the moving for $940.00. The Court denied the petition, however, because it felt that the failure to file an answer had not been adequately explained.

The default judgment was taken on the twenty-second day following service of the complaint. It was entered without prior notice to appellant. At that time, appellee knew that appellant was represented by counsel, for counsel had been engaged in settlement negotiations prior to the institution of suit. When suit was filed, moreover, a courtesy copy of the complaint had been sent to appellant's counsel.

The reciprocal good faith, mutual respect and courtesy that normally exist among members of the legal profession should have prevented the entry of a "snap" judgment without notice.*fn1 Taking judgment on the twenty-second day ...


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