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EXPLO v. JOHNSON & MORGAN AND MID-STATE ENERGY CORPORATION AND JOHNSON & MORGAN T/D/B/A MID-STATE ENERGY CORPORATION (02/05/82)

filed: February 5, 1982.

EXPLO, INC., APPELLANT,
v.
JOHNSON & MORGAN AND MID-STATE ENERGY CORPORATION AND JOHNSON & MORGAN T/D/B/A MID-STATE ENERGY CORPORATION, JOINTLY AND SEVERALLY



No. 1014 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Clearfield County, Civil Division, at No. 79-1898-CD

COUNSEL

Daniel J. Fleck, Pittsburgh, for appellant.

Carl A. Belin, Jr., Clearfield, for appellees.

Hester, Brosky and Van der Voort, JJ. Hester, J., concurs in the result.

Author: Brosky

[ 295 Pa. Super. Page 134]

Explo, Inc. has appealed from the order of the court below granting the petition to open judgment filed by Don R. Johnson and William Morgan, trading and doing business as Johnson & Morgan. The central issue for our determination is whether the court below abused its discretion in opening the judgment. The court below held that Johnson & Morgan had a meritorious defense; that the petition to open was promptly filed; and that Johnson & Morgan had a reasonable explanation for their failure to respond. We disagree, and accordingly reverse the order of the court below.

Appellant's chief contention on appeal is that the three requirements which must be satisfied in order for a judgment to be opened were not met here. The facts are as follows. On July 17, 1979, Explo filed a complaint in assumpsit against "Johnson & Morgan and Mid-State Energy Corporation and Johnson & Morgan trading and doing business as Mid-State Energy Corporation," to recover the sum of Fifty-eight thousand fifty-two and 42/100 ($58,052.42) dollars. The complaint alleged as follows:

[ 295 Pa. Super. Page 1352]

. Defendant Johnson & Morgan (hereinafter referred to as Johnson) is a business with offices located in Snow Shoe, Centre County, Pennsylvania 16874.

3. Defendant Mid-State Energy Corporation (hereinafter referred to as Mid-State) is a Pennsylvania corporation with an office located on Route 53 in Houtzdale, Clearfield County, Pennsylvania 16651.

4. Defendant Johnson is the owner of Defendant Mid-State.

5. Defendant Johnson trades and does business as Mid-State Energy Corporation which has an office at Route 53, Houtzdale, Clearfield County, Pennsylvania 16651.

6. At all times herein mentioned, Johnson did business in the Commonwealth of Pennsylvania directly and through Mid-State Energy Corporation.

7. As owner of Mid-State Energy Corporation, Johnson assumes the obligations and liabilities of Mid-State.

In Count I, "Explo vs. Mid-State Energy Corporation," Explo averred that Mid-State had contracted on open account with Explo for explosives; that Explo provided said explosives from September 1, 1978 through March 21, 1979; that Explo sent invoices to Mid-State for the explosives; and that Mid-State had failed to pay the contract price of $58,052.42 for said explosives.

In Count II, "Explo vs. Johnson,"*fn1 Explo averred that "as owner of Mid-State, Johnson accepted the obligations and liabilities of Mid-State;" that as owner of Mid-State it accepted the explosives provided to Mid-State by Explo and did not pay for them; and that it has as a result ...


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