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AMERICAN VENDING CO. v. THOMAS BREWINGTON AND ROBERTA MURCHESON (01/19/81)

submitted: January 19, 1981.

AMERICAN VENDING CO., INC.,
v.
THOMAS BREWINGTON AND ROBERTA MURCHESON, APPELLANTS



No. 2217 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Philadelphia County, Trial Division, at No. 262, March Term, 1979.

COUNSEL

D. M. Masciantonio, Philadelphia, for appellants.

Jay I. Bomze, Philadelphia, for appellee.

Hester, DiSalle and Popovich, JJ.

Author: Popovich

[ 289 Pa. Super. Page 27]

This is an appeal from the lower court's Order denying appellants'*fn1 petition to open judgment. We have reviewed the record and find that the lower court did not abuse its discretion in denying appellants' petition; therefore, we affirm the Order of the court below.

The facts are as follows: On March 5, 1979, appellee (American Vending Co., Inc.) filed a "COMPLAINT IN TRESPASS/ASSUMPSIT" against the appellants.*fn2 The Complaint, containing a standard notice that, inter alia, if the appellants wished to defend they had twenty (20) days after the Complaint and notice were received to act, was served on the same day by a Deputy Sheriff (Dennis DeAngelo) of Philadelphia County at 2107 South Sixth Street in Philadelphia, appellants' residence -- a Sheriff's return slip setting forth the manner (hand delivery), time (2:00 p. m.), date (March 5, 1979) and to whom (an adult female) delivery of the Complaint was made was filled out by the Deputy Sheriff. Although the adult female present on the appellants'

[ 289 Pa. Super. Page 28]

    premises refused to give the Deputy Sheriff her name or state in what way, if any, she was related to the appellants, she did accept service of the Complaint on behalf of the appellants.

On April 3, 1979, twenty-nine (29) days after delivery of the Complaint, a default judgment was entered in favor of the appellee when the appellants failed to file an answer. On April 3, the prothonotary also sent the appellants notice of the default judgment, Pa.R.C.P. 236; thereafter, on May 31, 1979, appellee filed a praecipe for a Writ of Execution and notice thereof was sent to the appellants by the prothonotary. On June 22, 1979, appellants filed a petition to open judgment and permission to file an answer to the Complaint. The petition was denied and this appeal followed.

Before a default judgment in assumpsit may be opened it is established that three factors must coalesce: 1) the petition to open must be promptly filed; 2) the failure to enter an appearance or file an answer must be excused; and 3) the party seeking to open the judgment must show a meritorious defense. Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973). A meritorious defense need only be shown to support a petition to open a default judgment in trespass where the equities are not otherwise clear. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa. Super. 95, 380 A.2d 1299 (1977).

The Complaint filed by appellee included both an assumpsit and a trespass count. Since the factors set forth above must coalesce to support a petition to open, the failure of any one factor is fatal to appellants' claim. Castel v. Mitchell, 56 Pa. Commw. 64, 423 A.2d 1375 (1981).

Instantly, the appellants assert that they were never served with the Complaint and therefore had no notice of the proceedings against them. In such situation, we have stated that: "a court must determine whether such assertion is ...


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