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CITY PHILADELPHIA v. JACOB RAVITZ (08/06/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 6, 1982.

THE CITY OF PHILADELPHIA, APPELLANT
v.
JACOB RAVITZ, APPELLEE

Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of City of Philadelphia and School District of Philadelphia v. Jacob Ravitz, No. 3377 March Term, 1980.

COUNSEL

Theodore A. McKee, Deputy City Solicitor, with him Alan J. Davis, City Solicitor, and Edward Sparkman, Assistant City Solicitor, for appellant.

Howard N. Sobel, for appellee.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 68 Pa. Commw. Page 169]

The City and School District of Philadelphia, as taxing bodies, appeal the order of the Court of Common Pleas of Philadelphia County opening a default judgment against Jacob Ravitz.

On March 18, 1980, the taxing bodies filed a complaint in assumpsit for delinquent taxes against Ravitz, a New Jersey resident. A Philadelphia County deputy sheriff served the complaint on April 7, 1980, at Ravitz's New Jersey residence, by handing it to Ravitz's adult son.*fn1

Ravitz did not file a responsive pleading and made no appearance. On June 24, 1980, the taxing bodies sent to Ravitz, by certified mail, notice of their intention to file for a default judgment. Although Ravitz

[ 68 Pa. Commw. Page 170]

    signed the return receipt for this notice, he failed to respond. On July 14, 1980, upon praecipe, the prothonotary entered a default judgment and sent notice of the entry to Ravitz.

Not until December 11, 1980, did Ravitz file his motion to open the Pennsylvania judgment, after the taxing bodies had filed an action in New Jersey to recover on their Pennsylvania judgment and, on October 1, 1980, had served a copy of that complaint on Ravitz.

We must decide if the common pleas court erred in opening the judgment.*fn2 Our approach has been made somewhat easier by the common pleas opinion filed for this appeal, which states that none of the preconditions necessary to open judgment are present here and concludes that Ravitz's motion should not be granted.

Ravitz does not deny receiving the notice of intention to file for default judgment. There is nothing in the record which excuses Ravitz's failure to make an appearance or file an answer during the nineteen day period between the delivery of that notice, on June 26, 1980, and the entry of judgment. See Carney v. Sado, 450 Pa. 118, 299 A.2d 231, (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973).

Ravitz did not file his petition to open judgment until approximately ten weeks after service of the New Jersey complaint and almost five months after the

[ 68 Pa. Commw. Page 171]

    docket shows that the prothonotary mailed notice of the entry of judgment. Ravitz does not deny receiving the prothonotary's notice. We conclude that Ravitz did not promptly file his petition and has shown no excuse for the delay. See Texas & B. H. Fish Club v. Bonnell Corp., 388 Pa. 198, 203-4, 130 A.2d 508, 510 (1957).

Accordingly, we reverse.

Order

Now, August 6, 1982, the order of the Court of Common Pleas of Philadelphia County, March Term, 1980, Docket No. 3377, dated February 10, 1981, is hereby reversed and appellant's default judgment, entered July 14, 1980, against Jacob Ravitz, is reinstated.

Disposition

Reversed.


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