Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROBERT MAHLER v. JAMES EMRICK AND JUDI EMRICK (05/28/82)

filed: May 28, 1982.

ROBERT MAHLER, APPELLEE,
v.
JAMES EMRICK AND JUDI EMRICK, AND PANEL & TILE MART, INC. V. DAN K. ROSS AND MARIE V. ROSS, HIS WIFE, INTERVENORS, APPELLANTS



COUNSEL

Lee C. McCandless, Butler, for appellants.

R. Bruce Ralston, Butler, for appellee.

Hester, Popovich and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.

Author: Popovich

[ 300 Pa. Super. Page 245]

This is an appeal from an order of the court below denying appellants' petition to open judgment or strike a judgment and stay a sheriff's sale of certain real estate which had been purchased by appellants. This appeal followed. We affirm.*fn1

[ 300 Pa. Super. Page 246]

Initially, it must be noted that appellants' petition, a "PETITION TO OPEN OR STRIKE AND STAY SHERIFF'S SALE", is essentially one to open the judgment since the factual averments stated therein were "based on . . . matter[s] dehors the record." J. F. Realty Co. v. Yerkes, 263 Pa. Super. 436, 440, 398 A.2d 215, 217 (1979).*fn2 Accord DeFeo v. MacIntyre, 265 Pa. Super. 95, 99, 401 A.2d 818, 819 (1979); See also Pa.R.C.P. 2959 (all motions to strike or open a judgment must be set forth in a single petition).

In reviewing the lower court's ruling on a petition to open a default judgment, we have stated that a court should not exercise its discretion to grant a petition unless the petitioner meets three requirements:

(1) the petition to open has been promptly filed;

(2) a legitimate explanation exists for the delay that prompted the default judgment; and

(3) a meritorious defense is averred."

Hatgimisios v. Dave's N. E. Mint, Inc., 251 Pa. Super. 275, 276, 380 A.2d 485 (1977). Accord Duffy v. Gerst, 286 Pa. Super. 523, 429 A.2d 645, 650 (1981).

Additionally, we have said that "'[e]quitable considerations are generally no longer relevant' unless related to a particular defense asserted." Bell Fed. Sav. & Loan Asso. v. Laura Lanes, Inc., 291 Pa. Super. 395, 398, 435 A.2d 1285, 1286 (1981) (quoting Kardos v. Morris, 470 Pa. 337, 341, 368 A.2d 657, 660 (1977). When the relevant guidelines are applied to the facts of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.