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filed: November 6, 1981.


No. 696 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division-Law, of Westmoreland County, 1975, No. 2233.


John F. Becker, Pittsburgh, for appellant.

Louis H. Ceraso, New Kensington, for appellee.

Spaeth, Shertz and Montgomery, JJ. Spaeth, J., filed a dissenting opinion.

Author: Montgomery

[ 292 Pa. Super. Page 183]

The instant appeal arises from an order of the lower court granting a Petition to Open a Default Judgment which had been entered against the Defendant-Appellee, in a trespass action.

[ 292 Pa. Super. Page 184]

The record shows that the Plaintiff-Appellant filed a Praecipe for Writ of Summons in Trespass to recover damages for injuries he allegedly sustained while attempting to cross the Appellee's property on his motorcycle. The Writ was issued on July 11, 1975, subsequently reissued on May 14, 1976, and again reissued on February 11, 1977. The second reissued Writ was served on the Appellee on February 16, 1977. A Complaint in Trespass was filed on April 27, 1977 and a copy of the Complaint, with a notice to defend, were sent to the Appellee by certified mail. On September 30, 1977, an affidavit of service, accompanied by a receipt for certified mail, was filed by the Appellant's original attorney.*fn1 On the same date, Appellant's attorney entered Judgment against the Appellee for failure to file an Answer within the required period of twenty days of service of the Complaint. Notice of the entry of Judgment was also sent to the Appellee by the Prothonotary on September 30, 1977. The Appellee denied having received notice of the Default Judgment until November, 1979. In June, 1978 the Appellant's original attorney was suspended from practicing law in this Commonwealth and on February 22, 1979, was disbarred from the practice of law. Thereafter, on November 5, 1979, the Appellant's present counsel placed this case on the call list. On February 14, 1980, approximately two years and five months after the Default Judgment was originally entered and the Prothonotary's notice sent, and approximately three months after the Appellee admitted he received notice of its entry, he filed a Petition to Strike Off, or in the alternative, to Open the Default Judgment. The lower court initially denied the Appellee's Petition, but after Appellee filed exceptions, the lower court, sitting en banc, granted the Appellee's Petition to Open the Default Judgment. The lower court subsequently filed an opinion in support of its actions.

[ 292 Pa. Super. Page 185]

On this appeal, the Appellant contends that the lower court abused its discretion by opening the Default Judgment entered against the Appellee. The Appellant argues that the lower court erred in opening the Judgment despite its specific findings that the Appellee's Petition to Open was not promptly filed and that the Appellee did not present a reasonable excuse for his failure to appear or file a timely answer. The lower court's findings regarding these elements, and its rationale for opening the Judgment, are explained in the following excerpt from its opinion:

"The other criteria for opening judgment set down by our Appellate Courts, namely, that the petition be promptly filed and the failure to answer the complaint must be excused, present more difficulty for the defendant. Even assuming that he did not receive notice of the entry of the judgment from the Prothonotary and his first knowledge of the judgment was in November 1979 when his counsel advised him of it, he nevertheless did not move to open the judgment until February 14, 1980. But in the context of the case, where plaintiff himself pursued his cause of action in a lackadaisical, willy-nilly manner it would seem that he himself set the pace for the progress of the litigation at a very slow one and should not now be heard to complain that defendant followed his lead. This is not to say that such tactics on the part of either party should be condoned, but rather that equitable considerations dictate that this Court not reward the plaintiff and penalize the defendant when both are equally responsible for the delay of seven years in bringing this case to trial.

"Insofar as defendant's failure to answer the Complaint is concerned, we also hold that the combination of the similar lawsuit in Allegheny County and the dilatory tactics on the part of the plaintiff himself in this suit excused the defendant from filing an answer in the required time."

It is apparent from these passages that the Appellant is at least correct in asserting that the lower court opened the Default Judgment ...

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