Appeal from the Order of the Administrator of Arbitration Panels for Health Care in case of William Gravely v. E. J. Gaffney et al., No. M79-0163.
R. Michael Owens, for petitioner.
Michael W. Bolechowski, Assistant Attorney General, with him James R. Ingram, Deputy Attorney General, for respondents.
Judges Rogers, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr. concurs in the result only.
[ 63 Pa. Commw. Page 114]
William Gravely (Petitioner) appeals from an order of the Administrator for Arbitration Panels for Health Care (Administrator) which granted Respondents'*fn1 Petition to Open and Set Aside Default Judgment. We reverse and remand.
Petitioner, an inmate at the State Correctional Institute at Graterford (Graterford), filed a complaint on June 7, 1979, alleging negligence by Respondents, all of whom were members of the medical staff at Graterford, in their treatment of Claimant for an infection in his hands. The complaint was served on Respondents by certified mail on June 11, 1979. Neither Graterford nor the Commonwealth were named as parties or served with the complaint. Respondents failed to answer or enter an appearance to the complaint. Petitioner filed a Praecipe for Default Judgment with the Administrator on August 20, 1979, and a default judgment was entered against each Respondent as to the issue of liability on August 27, 1979.*fn2
Upon learning of the default judgment, officials at Graterford notified legal counsel (the Pennsylvania Department of Justice) on September 12, 1979, and a Petition to Open and Set Aside Default Judgment was filed on January 17, 1980. The Administrator granted the Petition on July 11, 1980.
Petitioner claims an abuse of discretion in opening the default judgment because (1) no adequate justification was shown for failure to file a responsive pleading and (2) no sufficient reason was shown for a
[ 63 Pa. Commw. Page 115127]
day delay in filing the petition to open the default judgment.
Action on a petition to open a default judgment is discretionary and is governed by principles of equity. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Exercise of discretion, however, must be based on competent evidence. Shainline v. Alberti Builders, Inc., 266 Pa. Superior Ct. 129, 403 A.2d 577 (1979); Brown & Bigelow, Inc. v. Borish, 165 Pa. Superior Ct. 308, 67 A.2d 823 (1949). The scope of review of this Court is to determine whether there is an error of law or a clear abuse of discretion. Balk; Nevils v. Chernitsky, 244 Pa. Superior Ct. 501, 368 A.2d 1297 (1976).
A default judgment should be opened only where (1) a satisfactory explanation is offered as to why there was a failure to act prior to the entry of judgment; (2) a meritorious defense is shown to exist (except in trespass actions),*fn3 and (3) the petition to open has been promptly filed. In re Estate of McCauley, 478 Pa. 83, 385 A.2d 1324 (1978); ...