No. 825 Philadelphia, 1981, APPEAL FROM THE ORDER DATED MARCH 25, 1981, IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, LAW, No. 2298 JUNE TERM, 1980
Allen L. Feingold, Philadelphia, submitted a brief on behalf of appellants.
Michael P. McKenna, Philadelphia, for appellees.
Hester, Cirillo and Johnson, JJ.
[ 304 Pa. Super. Page 377]
This is an appeal from an order granting a petition to open a default judgment. Since the order was entered prematurely, we remand for further proceedings.
On July 15, 1978, plaintiffs/appellants, Geraldine Hutchings and Dorothy White (hereinafter "appellants") were passengers in a bus owned by defendant/appellee, Overland Coach and driven by defendant/appellee, Jerry Trent (hereinafter "appellees"). Appellants allege that they sustained personal injuries when the bus stopped suddenly and threw them about. The incident allegedly took place in Hanover County, Virginia. Appellants are residents of Philadelphia. Appellee/Overland is a corporation which regularly does business in Philadelphia and Hanover County, Virginia.
On June 16, 1980, appellants filed a complaint in trespass in the Court of Common Pleas of Philadelphia County against appellees. Service was made at appellee's office in Virginia on June 17, 1980 by certified mail. Subsequently,
[ 304 Pa. Super. Page 378]
on July 15, 1980, appellant/Dorothy White, only, filed another complaint in trespass in the Circuit Court of the County of Hanover against appellees. Service was made on appellees in their Virginia office on July 18, 1980.
Though appellees timely entered an appearance in the Virginia action, no appearance was entered or answer filed in the Pennsylvania action. Default judgment was taken against appellees on September 3, 1980 in the Pennsylvania suit. On January 8, 1981, appellee filed a petition to open judgment. The petition was granted on March 25, 1981. It is from this order that this appeal was taken.
It is well settled that a petition to open judgment is an appeal to the equitable powers of the court and is a matter largely within its discretion. Zinck v. Smashy's Auto Salvage, Inc., 250 Pa. Super. 553, 378 A.2d 1287 (1977). Before granting the petition to open in a trespass action, the petitioner must establish that: 1) the petition was promptly filed after the judgment was entered, and 2) a legitimate explanation exists for the default. If the equities are otherwise clear, a meritorious defense need not be demonstrated. Corprew v. Prudential Ins. Co. of America, 286 Pa. Super. 302, 428 A.2d 1003 (1981).
Appellant argues that none of these requirements was met and the lower court abused its discretion in opening the default judgment. Appellant also contends that the lower court erred in opening the judgment where no ...