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RAYMOND J. BRUSCO FUNERAL HOME v. JEAN SICILIA AND DOMINICK SICILIA AND NANCY SICILIA (04/18/80)

filed: April 18, 1980.

RAYMOND J. BRUSCO FUNERAL HOME
v.
JEAN SICILIA AND DOMINICK SICILIA AND NANCY SICILIA, HIS WIFE. APPEAL OF DOMINICK AND NANCY SICILIA, HIS WIFE



COUNSEL

Samuel Avins, Pittsburgh, for appellants.

Howard R. Singer, Pittsburgh, for appellee.

Cercone, President Judge, and Wieand and Lipez, JJ.*fn*

Author: Cercone

[ 277 Pa. Super. Page 116]

This is an appeal from an order of the Court of Common Pleas of Allegheny County refusing to open a default judgment

[ 277 Pa. Super. Page 117]

    in an assumpsit case. For the reasons set forth herein, we reverse.

On August 9, 1976, plaintiff-appellee, Raymond J. Brusco Funeral Home, by its attorney, Howard R. Singer, filed a complaint in compulsory arbitration*fn1 against Jean Sicilia, and Dominick and Nancy Sicilia, husband and wife. The complaint alleged that the three defendants owed plaintiff $1,590.76 for funeral services rendered on March 22, 1976. It was further averred that Dominick and Nancy Sicilia owed an additional $449.75 for services performed on June 22, 1972. The complaint was served upon the defendants on August 16, 1976. A default judgment was entered against the defendants on September 8, 1976 for their failure to file a "Notice of Intention to Appear." On July 6, 1977, defendants*fn2 Dominick and Nancy Sicilia by their attorney, Samuel Avins, filed a petition to vacate the judgment, or in the alternative, to open the judgment so that they could defend on the merits. Shortly thereafter, depositions in support of the petition were taken. On November 10, 1977, after entertaining arguments, the lower court, in a short per curiam order, denied the petition on the grounds that it had not been promptly filed. This appeal followed.

As we have all too frequently had occasion to observe: "It is fundamental that a petition to open a default judgment is an appeal to the court's equitable powers and, absent a clear abuse of discretion, the court's decision will not be disturbed. Moreover, it is equally well-settled that in an assumpsit action a petition to open should not be granted unless three conditions coalesce: (1) the petition has been promptly filed; (2) the default is reasonably explained; and (3) a meritorious defense is shown." Ecumenical Enterprises, Inc. v. NADCO Construction, Inc., 253 Pa. Super. 386, 390-91, 385 A.2d 392, 394-5 (1978) (citations omitted).

[ 277 Pa. Super. Page 118]

Instantly, as previously noted, the lower court declined to open the judgment because of defendants' failure to satisfy the first condition, namely, a promptly filed petition to open. The lower court has not filed an opinion in support of its order and we therefore cannot be certain as to what extent the circumstances surrounding the delay were considered.*fn3 We are persuaded, however, that when all of the equitable circumstances present in this case are taken into consideration, it must be concluded that the lower court abused its discretion in declining to open the judgment.

The pleadings and depositions indicate that after the defendants were served with the complaint, they sent copies of their Notices of Intention to Appear (containing their answers to the complaint) by certified mail to plaintiff's attorney.*fn4 However, the copies which were allegedly mailed to plaintiff's counsel were the copies designated "Prothonotary" while defendants retained their copy and the copy marked "Copy to be mailed to plaintiff or attorney." In other words, assuming defendants did mail their "Notices of Intention to Appear" to plaintiff's counsel, they admittedly failed to mail a corresponding copy to the Prothonotary's Office. Thus, there was nothing on the docket to bar plaintiff from taking a default judgment on September 8, 1976. Defendants first learned ...


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