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EDITH T. MOSS v. CONSOLIDATED RAIL CORPORATION (04/25/80)

filed: April 25, 1980.

EDITH T. MOSS, APPELLANT,
v.
CONSOLIDATED RAIL CORPORATION



No. 81 October Term, 1979, Appeal from Order of the Court of Common Pleas, Trial Division, Law, for the County of Philadelphia, at No. 5512 July Term, 1978.

COUNSEL

George A. Priestley, Philadelphia, for appellant.

Norman M. Hegge, Jr., Philadelphia, for appellee.

Price, Wieand and Van der Voort, JJ.*fn*

Author: Van Der Voort

[ 277 Pa. Super. Page 194]

This is an appeal from an Order granting a Motion to open a default Judgment. On January 11, 1977, appellant, Edith T. Moss, sustained injuries from a fall occurring on the ice and snow covered premises of the Sedgwick Train Station in Philadelphia, which appellant avers were negligently maintained by Consolidated Rail Corporation (Conrail), the appellee herein.

On August 2, 1978, appellant filed a Complaint in trespass against the appellee which was served the following day.

[ 277 Pa. Super. Page 195]

Under circumstances hereinafter detailed, appellee failed to file a responsive pleading and appellant took a default Judgment on October 20, 1978, without prior notice to the appellee. On October 30 and November 2, 1978, counsel for the appellee wrote to counsel for the appellant with an explanation of the reason for failing to plead to the Complaint and requesting consent to open the default Judgment. The request was denied and on November 8, 1978, appellee filed a Petition to open the Judgment, explaining in some detail the circumstances of the default and pleading a meritorious defense. On November 16, 1978, the trial Court granted a Rule to Show Cause why the Judgment should not be opened. By consent, the issue was submitted to the Court for a ruling on the basis of written briefs, but without a hearing or oral argument. On December 11, 1978, the Court entered an Order opening the Judgment. This appeal is from the entry of that Order.

A Petition to open a judgment is an appeal to a Court's equitable powers, the exercise of which is a matter of judicial discretion and normally granted only when three factors coalesce: (1) the Petition has been promptly filed; (2) a meritorious defense has been shown; and (3) the default has been satisfactorily explained. A lower court's ruling, either opening or refusing to open a default judgment, will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion: Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 131 (1971); DiNenno v. Great Atlantic and Pacific Tea Company, 245 Pa. Super. 498, 499-500, 369 A.2d 738, 739 (1976). In a trespass action, a meritorious defense need not be shown if the other equities are clear. DiNenno, supra.

It is not disputed that the first two requirements have been met. The appellee filed its Petition to open Judgment less than three weeks after the default Judgment was entered and during that interval attempted to negotiate a reopening by consent. Appellee's defense on the merits is that the Sedgwick Station where the appellant was injured was controlled and maintained by the Southeastern Pennsylvania

[ 277 Pa. Super. Page 196]

Transportation Authority (SEPTA) and that the appellee, Conrail, had nothing whatever to do with the maintenance or operation of the station. The Petition further discloses that appellee, Conrail, had turned appellant's claim over to SEPTA for handling some ten months before appellant filed its Complaint against appellee, Conrail; and that SEPTA had been in communication with appellant's counsel about the details of the injury prior to the Complaint against the appellee, Conrail. The Petition avers SEPTA's position to be that it has investigated the appellant's claim and finds no basis for ...


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