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NEIL R. BAHR v. WANDA PASKY (12/29/81)

filed: December 29, 1981.

NEIL R. BAHR, TRADING AS BAHR BROTHERS, APPELLANT,
v.
WANDA PASKY



No. 469 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at No. 9399 of 1978.

COUNSEL

Leonard A. Costa, Jr., Pittsburgh, for appellant.

Jon L. Friedman, Pittsburgh, for appellee.

Spaeth, Shertz and Montgomery, JJ.

Author: Spaeth

[ 293 Pa. Super. Page 406]

This is an appeal from an order opening a default judgment, entered for failure to file a responsive pleading. The lower court found this failure excusable. We disagree, and therefore reverse.

On November 21, 1978, appellants instituted an action in assumpsit against appellee to recover the balance alleged to be due for roofing and contracting work performed on appellee's home. On January 15, 1979, appellants took a default judgment against appellee because she had failed to answer or otherwise respond to the complaint. On January 23, 1979, appellee filed a Petition for Rule to Show Cause Why the Judgment Should Not Be Opened and Defendant Let Into a Defense. On February 5, appellants filed an answer to the petition. After depositions, the lower court, on April 28, filed an order opening the judgment.

An order opening a default judgment is an exercise of the court's equity powers, and it will not be disturbed on appeal unless it represents an abuse of discretion. Hutchison v. Hutchison, 492 Pa. 118, 422 A.2d 501 (1980). A petition asking the court to open a default judgment in an assumpsit action should not be granted unless (1) the petition was promptly filed; (2) the petitioner's failure to respond was excusable; and (3) the petitioner has a meritorious

[ 293 Pa. Super. Page 407]

    defense. Carson Pirie Scott & Co. v. Phillips, 290 Pa. Superior Ct. 353, 434 A.2d 790 (1981); American Vending Co. v. Brewington, 289 Pa. Superior Ct. 25, 432 A.2d 1032 (1981); Horan v. R. S. Cook & Associates, Inc., 287 Pa. Superior Ct. 265, 430 A.2d 278 (1981); Cruse v. Woods, 279 Pa. Superior Ct. 242, 420 A.2d 1123 (1980). On this appeal, appellant claims that appellee did not meet the second of these requirements. We agree.

In her petition to open, appellee said that "because of her inexperience with legal matters and because of her illness, she did not notice the direction appearing at the bottom of the Complaint 'Notice of Intention to Appear.'" Petition, para. 5. The direction thus referred to as appearing at the bottom of the complaint read:

NOTICE: You are hereby notified to return "NOTICE OF INTENTION TO APPEAR" within twenty (20) days from service hereof or a default judgment or an award may be entered against you.

Attached to the complaint, on the top, were copies of two forms, one entitled "Notice of Hearing," and the other entitled "Notice of Intention To Appear." The "Notice of Hearing" form read:

TO THE DEFENDANT: Case No. 9399 1978

A Lawsuit has been entered against you. Attached is a copy of the suit papers. You are requested to appear for a hearing on this claim on Feb. 6, 1979 at 9 AM o'clock, in Room 523, Court House, Pittsburgh, Pennsylvania. IF YOU INTEND TO APPEAR at the hearing and defend against this claim, YOU MUST complete and detach two of the copies of the "Notice of Intention To Appear" at the top of this page. One completed copy of the "Notice of Intention To Appear" must be filed or mailed by Certified or Registered Mail to the Prothonotary's Office, Room 504 Courthouse, Pittsburgh, Pa. 15219 and the other completed copy must be mailed to:

Leonard A. Costa, Jr., Esquire

826 Frick Building

Pittsburgh, ...


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