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CARSON PIRIE SCOTT & COMPANY v. PETER A. PHILLIPS AND MICHAEL L. CULVER (09/04/81)

filed: September 4, 1981.

CARSON PIRIE SCOTT & COMPANY
v.
PETER A. PHILLIPS AND MICHAEL L. CULVER, INDIVIDUALLY AND NOW OR FORMERLY T/A CARPETMOBILE, A PARTNERSHIP, AND PETER A. PHILLIPS AND CHRISTINE PHILLIPS. APPEAL OF PETER A. PHILLIPS



No. 1022 April Term, 1979, Appeal from Order of the Court of Common Pleas, Civil Division, of Erie County, No. 1506-A-1979.

COUNSEL

M. Richard Mellon, Erie, for appellant.

Donald L. Phillips, Pittsburgh, submitted a brief on behalf of appellee.

Hester, Brosky and Van der Voort, JJ.

Author: Per Curiam

[ 290 Pa. Super. Page 355]

Presently before the court is the appeal by appellant Peter A. Phillips from the order of the lower court dated November 5, 1979 wherein the lower court refused appellant's petition to open judgment.

We reverse and remand.

The facts may be briefly summarized as follows: On April 16, 1979, appellee, a commercial carpet distributor, brought an action sounding in trespass and assumpsit against divers entities including the appellant as an individual, for damages as a result of merchandise sold and delivered but not paid for. On April 30, 1979, counsel for the Phillips filed preliminary objection which were dismissed by order of the lower court dated June 1, 1979. On June 5, 1979, counsel for the Phillips filed a petition for reconsideration. On that same date, appellant caused interrogatories to be served upon the appellee. On June 29, 1979, the lower court dismissed appellant's petition for reconsideration.

On August 13, 1979, appellee filed a praecipe for default judgment against Peter A. Phillips and Christine Phillips, his wife in the total amount of $6,477.28. On August 30, 1979, Peter A. Phillips and Christine Phillips filed a petition to open judgment. Appellee filed an answer thereto and on October 23, 1979, argument on said petition to open judgment was convened in the lower court.

On November 5, 1979, the lower court granted the petition to open judgment in favor of Christine Phillips but refused the petition to open judgment as to appellant, Peter A. Phillips. Hence this appeal by appellant Peter A. Phillips only.

[ 290 Pa. Super. Page 356]

Our scope of review on appeal from either the opening or the refusal to open a judgment taken by default has been clearly defined over many years. To reiterate, our scope of review on appeal from the lower court's grant or refusal to grant a petition to open a judgment taken by default is a narrow one. A Petition to open judgment is first an appeal to the equitable and discretionary powers of the lower court and as such, the exercise of the lower court's discretion in either opening or refusing to open a judgment taken by default will not be disturbed on appeal unless the lower court has committed a clear abuse of discretion or an error of law. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Sprouse v. V. F. W. Post 7155, 237 Pa. Super. 419, 352 A.2d 134 (1975); Campbell v. Heilman Homes, Inc., 233 Pa. Super. 366, 335 A.2d 371 (1975).

In order to open a default judgment in an assumpsit action (here, assumpsit and trespass), three elements must coalesce: (1) the petition to open must be promptly filed; (2) the failure to answer must be reasonably explained; and (3) a meritorious defense must be shown. McCoy v. Public Acceptance Corp., supra, Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, ...


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