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SERVICE BUREAU COMPANY v. TAYLOR (05/02/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 2, 1980.

THE SERVICE BUREAU COMPANY, DIVISION CONTROL DATA CORPORATION, APPELLANT,
v.
TAYLOR, MEYER & ASSOCIATES, A PARTNERSHIP, GEORGE TAYLOR AND LARRY MEYER, INDIVIDUALLY AND AS PARTNERS NOW OR FORMERLY T/D/B/A TAYLOR, MEYER & ASSOCIATES AND TMF SYSTEMS, INC.

No. 1457 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 75-13054.

COUNSEL

Robert A. Galanter, Pittsburgh, for appellant.

Alan Frank, Pittsburgh, for appellee.

Spaeth, Hoffman and Van der Voort, JJ.

Author: Per Curiam

[ 277 Pa. Super. Page 562]

Appellant contends that the lower court erred in opening judgment rendered against appellees. We agree and, accordingly, vacate the order of the lower court and reinstate the judgment.

Appellant, The Service Bureau Company (Service Bureau), instituted this action in assumpsit against appellees, Taylor, Meyer & Associates, George Taylor, and Larry Meyer (Taylor, Meyer), in mid-1975. Subsequently, the case was referred to a board of arbitrators. In February, 1977, the arbitrators awarded $6,627.89 to Service Bureau, and Taylor, Meyer appealed that award to the Court of Common Pleas of Allegheny County. On August 24, 1977, Service Bureau moved to quash the appeal of the award on the ground that Taylor, Meyer had failed to send it a copy of the notice of appeal, as required by a local rule of court.*fn1 Taylor, Meyer did not file an answer to this motion. Argument on the motion was scheduled for September 16, 1977, but only Service Bureau appeared before the court on that date. After hearing argument from Service Bureau, the court quashed Taylor, Meyer's appeal "for failure to file a notice

[ 277 Pa. Super. Page 563]

    of appeal with [Service Bureau]".*fn2 The order quashing Taylor, Meyer's appeal was docketed in the lower court on September 16, 1977, the date of entry, but the record does not reveal whether Taylor, Meyer was notified of entry of the order pursuant to Pa.R.Civ.P. 236.*fn3 Taylor, Meyer did not file a direct appeal from the order.

On October 20, 1977, judgment was entered on the award of the arbitrators. Eight days later Taylor, Meyer filed a petition to open the judgment. The basis of that petition was Taylor, Meyer's assertion that it had been deprived of an opportunity to oppose the motion to quash its appeal because Service Bureau had failed to notify it of the date set for argument of the motion.*fn4 Taylor, Meyer supported its petition with an affidavit in which its counsel stated that although he had received a copy of the motion to quash, he had never been notified of the argument date. Service Bureau denied Taylor, Meyer's assertions of lack of notice in its answer to the petition to open, and it filed supporting affidavits to both counsel and counsel's secretary detailing the manner in which it had notified Taylor, Meyer of the date set for argument. On October 10, 1978, after hearing arguments on the petition to open, the lower court entered an order opening the judgment and reinstating Taylor, Meyer's appeal.*fn5 In its opinion the lower court expressly ruled (1) that Taylor, Meyer had received inadequate notice of the date set for argument of the motion to quash, and (2)

[ 277 Pa. Super. Page 564]

    that Taylor, Meyer's method of notifying Service Bureau of its appeal from the arbitration award "constituted sufficient notice of appeal to satisfy the requirements."*fn6 This appeal followed.

[ 277 Pa. Super. Page 565]

We must preliminarily consider the propriety of the manner in which Taylor, Meyer sought relief from the quashing of its appeal of the arbitration award. A party has the right to appeal to this Court an order of the Court of Common Pleas quashing its appeal from an adverse arbitration award. See, e.g., James F. Oakley, Inc. v. School District of Philadelphia, 464 Pa. 330, 346 A.2d 765 (1975); Mikita v. Bailey Homes, Inc., 265 Pa. Super. 399, 401 A.2d 1367 (1979); Friedgen v. Evangelical Manor, 253 Pa. Super. 216, 384 A.2d 1309 (1978). One wishing to appeal such an order has thirty days after entry of the order in which to file a notice of appeal. Pa.R.App.P. 903(a). "Ordinarily, the failure to appeal within the [thirty-day] period renders the doctrine of res judicata applicable and precludes the vacation of the order after the time of appeal has passed." Estate of Gasbarini v. Medical Center of Beaver County, Inc., 253 Pa. Super. 547, 550, 385 A.2d 474 (1978). See also Strickler v. United Elevator Co., 257 Pa. Super. 542, 391 A.2d 614 (1978); Provident National Bank v. Rooklin, 250 Pa. Super. 194, 378 A.2d 893 (1977). A party may not circumvent the rule governing the time for appeal by attempting to open a judgment entered upon a final order which has not been appealed within the mandatory period; to uphold such a procedure "would undermine the validity of the appellate process and permit a party to escape the procedural requirements of perfecting an appeal." Strickler v. United Elevator Co., supra, 251 Pa. Super. at 549, 391 A.2d at 618. See also Estate of Gasbarini v. Medical Center of Beaver County, Page 565} Inc., supra. Accordingly, if Taylor, Meyer's petition to open judgment were filed after the expiration of the thirty-day period for an appeal from the order quashing its arbitration appeal, it would have been error for the lower court to entertain the petition, much less grant it and reinstate Taylor, Meyer's appeal. Strickler v. United Elevator Co., supra.

The thirty-day appeal period does not commence until "the entry of the order from which the appeal is taken." Pa.R.App.P. 903(a). "The date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b)."*fn7 Pa.R.App.P. 108(b). As noted above, the record in the present case does not reveal whether Taylor, Meyer was notified of entry of the order quashing its appeal, as required by Pa.R.Civ.P. 236(b). Because the thirty-day appeal period does not begin to run until the day the clerk of the lower court notes in the docket that Rule 236(b) notice has been given, we are unable to determine on the present record whether Taylor, Meyer failed to appeal timely the order quashing its appeal from arbitration. Nonetheless, we need not remand for supplementation of the record on this matter, because even if the thirty-day period for direct appeal had not expired and the petition to open were properly entertained, we believe that Taylor, Meyer did not present sufficient facts to warrant the opening of the judgment.

Our cases have repeatedly stated that a petition to open a judgment is an appeal to the equitable powers of the court and will not be reversed absent an error of law or a clear abuse of discretion. See, e.g., Brooks v. Surman Dental Lab, Inc., 262 Pa. Super. 369, 370, 396 A.2d 799, 800 (1979) (petition to open default judgment); Thompson v. Hahn Motors, Inc., 269 Pa. Super. 271, 273, 409 A.2d 884, 885 (1979) (petition to open judgment of non pros); Foerst v. Rotkis,

[ 277 Pa. Super. Page 566244]

Pa. Super. 447, 449, 368 A.2d 805, 807 (1976) (petition to open judgment by confession). Nonetheless, before a court may properly open a judgment the party seeking such relief must (1) timely file his petition to open; (2) show a meritorious defense, or, in the case of a judgment of non pros, allege facts constituting grounds for a cause of action; and (3) reasonably explain the default which occasioned entry of the judgment. Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa. Super. 462, 466, 416 A.2d 549, 550 (1979); Thompson v. Hahn Motors, Inc., supra, 269 Pa. Super. at 273, 409 A.2d at 885.

In the present case Taylor, Meyer attributed entry of the judgment to Service Bureau's alleged failure to notify it of the date set for argument on the motion to quash its appeal. Assuming, arguendo, that an excusable failure to appear for argument on such a motion could constitute a reasonable explanation of the default which occasioned entry of judgment, we conclude that Taylor, Meyer nonetheless failed to prove that it was without notice of the argument date. As stated above, Service Bureau filed affidavits of both counsel and counsel's secretary describing in detail the manner in which it had notified Taylor, Meyer of the argument date. Service Bureau appended as exhibits to these affidavits a copy of the letter sent to Taylor, Meyer which clearly indicated the time and place of argument, and a certified mail return receipt signed by a secretary to counsel for Taylor, Meyer evidencing receipt of the envelope allegedly containing the letter of notice. In support of its contention that it did not receive notice of the argument date, Taylor, Meyer submitted only the affidavit of its counsel, in which he admitted receiving the motion to quash but denied receiving any notice of the date set for argument. Taylor, Meyer did not depose or present an affidavit of the secretary who acknowledged receipt of the envelope which Service Bureau claims contained notice of the argument. Neither side presented any testimony on the question of notice at the hearing on the petition to open. "When a

[ 277 Pa. Super. Page 567]

    respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof." Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 136, 403 A.2d 577, 580 (1979). See also Zinck v. Smashy's Auto Salvage, Inc., 250 Pa. Super. 553, 378 A.2d 1287 (1977).*fn8 This Taylor, Meyer failed to do.*fn9 Accordingly, we hold that the lower court committed a manifest abuse of discretion in concluding that Taylor, Meyer was not notified of the argument date and, thus, in opening the judgment and reinstating the appeal. Because we conclude that Taylor, Meyer has not reasonably explained the default which occasioned entry of judgment against it, we vacate the order of the lower court and reinstate the judgment for Service Bureau.

Order vacated and judgment reinstated.


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