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PENN CLAIR CONSTRUCTION COMPANY v. EDEN ROC COUNTRY CLUB (09/02/81)

SUPERIOR COURT OF PENNSYLVANIA


argued: September 2, 1981.

PENN CLAIR CONSTRUCTION COMPANY, A PENNSYLVANIA CORPORATION,
v.
EDEN ROC COUNTRY CLUB, A PENNSYLVANIA NON-PROFIT CORPORATION, V. HARRY ALAN SHERMAN, ROBERT F. RAINEY, PAUL BLANK, TRUSTEES OF THE EDEN ROC COUNTRY CLUB TRUST FUND, APPELLANTS

No. 64 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Westmoreland County, No. 4706 of 1977.

COUNSEL

Harry Alan Sherman, Pittsburgh, appellant, in pro. per.

Walter F. Baczkowski, McKeesport, for appellee.

Wickersham, Beck and Wieand, JJ. Wieand, J., concurs in the result.

Author: Beck

[ 294 Pa. Super. Page 378]

This is an appeal from an order refusing to open judgment by default entered against defendants/appellants.

The basic facts are demonstrated by the following chronology:

[ 294 Pa. Super. Page 379]

June 1, 1977 Complaint filed

July 6, 1977 Preliminary Objections to Complaint

August 19, 1977 Answer to Preliminary Objections

June 23, 1978 Preliminary Objections Dismissed for

     failure to prosecute

October 2, 1978 Judgment by Default entered on

     praecipe of appellee

September 10, 1979 Petition to Open Judgment by Default

     filed by appellants

The Petition to Open filed by appellants recites, and appellants were able to show by deposition, that they initially retained the firm of Waltz and Bergman, which firm assigned Henry B. Waltz, Jr. to represent appellants. Henry B. Waltz, Jr. died on December 26, 1977, after which the firm "turned over the file"*fn1 to Irving L. Bloom, Esquire. Irving L. Bloom, Esquire permitted judgment by default to be entered against appellants with full knowledge that said judgment would be entered.

The Petition to Open further recites that "Defendants have a meritorious defense to the action" and alleges certain facts averred to present such a defense.

On appeal, the only claim raised by appellants which was also presented to the court below*fn2 is that a default

[ 294 Pa. Super. Page 380]

    judgment cannot be entered upon the consent of the attorney for the party against whom the judgment is entered unless express consent of that party is demonstrated of record.*fn3

A Petition to Open a judgment is addressed to the sound discretion of the trial judge and the decision of the trial judge will not be disturbed absent a showing that there was an error of law affecting the decision or that there was an abuse of discretion.*fn4

In the instant case, we find that the en banc court below correctly applied the law and that there has been no abuse of discretion. The order appealed from is therefore affirmed.

As pointed out in the opinion of the lower court, there are three basic requirements which must be addressed in a petition to open a judgment. These are that the petitioner has shown due diligence under the circumstances in the filing of the petition,*fn5 the failure to file a timely answer is

[ 294 Pa. Super. Page 381]

    shown to be reasonably explained or due to excusable neglect*fn6 and a meritorious defense to the action is fully alleged.*fn7 In the instant case, we do not reach the question of whether the facts alleged by appellants set forth a meritorious defense to appellee's action in ejectment in light of the fact that neither of the other two prerequisites has been satisfied.

First, neither the Petition filed with the court below nor the brief filed in this court addresses the issue of due diligence in the filing of Petition to Open. Docket entries indicate that notice of entry of the judgment was sent to defendants on October 2, 1978. Trustee appellants admit to actual knowledge of the entry of judgment no later than March of 1979. Thus the very minimum delay in acting to challenge the judgment entered is shown to be a delay of six months. This clearly does not show "due diligence" on the part of appellants in acting to protect their rights, but on the contrary demonstrates that absent a showing to the court of good reasons for such delay, which reason has not even been alleged, appellants slept on their rights and thus waived any claim to any defect in the judgment not appearing of record.*fn8

[ 294 Pa. Super. Page 382]

Nonetheless, had the court been fraudulently induced to enter a judgment, as would be the case where a consent judgment had been entered upon a fraudulent representation of authority, this court would permit wide latitude in the assertion of such a claim.*fn9 In such a case, the affirmative representation made would be the only subject for proof and would not require extensive trial on the collateral matter. Here, however, it is the silence of the parties and of their attorney which has resulted in the entry of judgment. To determine the relative responsibility for the delay in asserting a defense to the action would require a full scale trial of what is in effect a malpractice claim asserted against the attorney. In this instance, the appellee has demonstrated patience in affording appellants every opportunity to assert a defense, and is very far from having taken a "snap" judgment.*fn10 Appellee may not be subjected to further delay for trial of claims between the defendants and attorneys relating to matters which may in no way be laid at the door of appellee. Finally, although justice certainly requires that we ensure that appellants not be made the victims of judgments lightly entered, our overburdened courts may not be

[ 294 Pa. Super. Page 383]

    required to endlessly reopen judgments validly entered in civil actions in order to determine claims between parties and their attorneys. Appellants must be relegated to their legal remedies against their attorney.

Order affirmed.


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