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SHARON HILL CONTRACTING COMPANY v. RECREATIONAL EQUIPMENT UNLIMITED (01/16/81)

filed: January 16, 1981.

SHARON HILL CONTRACTING COMPANY, APPELLANT,
v.
RECREATIONAL EQUIPMENT UNLIMITED, INC.



No. 185 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. 4508 of 1978, Ex. No. 5507 of 1978.

COUNSEL

Reed J. Davis, Pittsburgh, for appellant.

Bernard D. Marcus, Pittsburgh, for appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Lipez

[ 284 Pa. Super. Page 120]

Plaintiff Sharon Hill Contracting Company (Sharon Hill) took a $330.90 default judgment against defendant Recreational Equipment Unlimited, Inc. (Recreational) on July 11, 1978, because Recreational had neither entered an appearance nor filed a "NOTICE OF INTENTION TO APPEAR" in response to Sharon Hill's short form complaint in assumpsit,*fn1 which had been served on Recreational's controller and general manager, Mr. Schwarz, on June 19, 1978. On July 13, 1978 Mr. Schwarz received notice of entry of the default judgment, and the next day he filed a handwritten petition to open judgment, which he had prepared and signed himself on behalf of Recreational. This petition was dismissed by the court below on July 21, 1978, on the ground that Mr. Schwarz was not an attorney and therefore could not represent the corporate defendant, Recreational, in court.*fn2 The dismissal order allowed Recreational five days to file an amended petition to open by its attorney, who did file such a petition on July 26, 1978. The court below issued a rule on Sharon Hill to show cause why the judgment should not be opened.*fn3 Sharon Hill filed an answer to the petition to open judgment, and obtained a rule on Recreational to proceed to take depositions under Pennsylvania Rule of Civil Procedure 209. Recreational took the deposition of its own manager, Mr. Schwarz, who was also cross-examined by Sharon Hill's

[ 284 Pa. Super. Page 121]

    counsel. After argument and filing of memoranda by both parties, the court below opened the judgment in an order from which Sharon Hill has taken this appeal.*fn4 We reverse.

"[A] default judgment in an assumpsit action will not be opened unless (1) the petition was promptly filed; (2) the petitioner's failure to respond was excusable; and (3) a meritorious defense can be shown." Cruse v. Woods, 279 Pa. Super. 242, 245, 420 A.2d 1123, 1124 (1980) (citations omitted). In this appeal, Sharon Hill claims that Recreational did not meet any of the three requirements. Because we conclude that Recreational failed to meet the second requirement, we reverse without considering whether the first and third were met.

The excuse offered by Recreational for its failure to enter an appearance or return the notice of intention to appear was that Mr. Schwarz saw the hearing date ("SEP 28 1978") on the "NOTICE OF INTENTION TO APPEAR" form, and thought that it would be sufficient to appear on that date without taking further action. In his deposition, Mr. Schwarz testified that he did not read the "NOTICE TO DEFEND"*fn5 printed in bold face just below the hearing date

[ 284 Pa. Super. Page 122]

    on the complaint and that he did not see the "NOTICE TO DEFEND," because the manifold copies of the "NOTICE OF INTENTION TO APPEAR" form were stapled onto the top of the complaint, covering the "NOTICE TO DEFEND." We have reviewed the original copies of the papers served on Mr. Schwarz,*fn6 and find that it is true that the copies of the "NOTICE OF INTENTION TO APPEAR" form must be lifted in order to see the portion of the one-page complaint in which the "NOTICE TO DEFEND" is included. However, Mr. Schwarz also testified that he discussed the allegations of the complaint with Recreational's president, and that they determined that the complaint ...


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