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RUTH BROWN v. GREAT ATLANTIC & PACIFIC TEA COMPANY (04/29/83)

filed: April 29, 1983.

RUTH BROWN
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, APPELLANT



No. 2942 Philadelphia 1981, Appeal from Order of the Court of Common Pleas of Philadelphia County, Civil Action at No. 2854 May Term 1981.

COUNSEL

Charles W. Craven, Philadelphia, for appellant.

Stephen T. Shaffer, Philadelphia, for appellee.

Spaeth, Beck and Johnson, JJ. Johnson, J., files a concurring statement.

Author: Spaeth

[ 314 Pa. Super. Page 80]

This is an appeal from an order denying a petition to open or strike a default judgment. On May 20, 1981, appellee filed a complaint in trespass against appellant seeking damages for injuries that she allegedly sustained when she fell at one of appellant's stores on September 22, 1980. On July 14, 1981, the lower court entered a default judgment against appellant. The record discloses that appellant did not receive notice of the pendency of the action prior to the entry of the default judgment, and also, that neither it nor its insurance carrier received the notice prescribed by Pa.R.Civ.P. 237.1 of appellee's intention to enter the default judgment. In these circumstances it was an abuse of discretion to deny the petition to open the default judgment. We therefore reverse.

In order to prevail on a petition to open a default judgment entered in a trespass action, the petitioner must file the petition promptly, and must offer a reasonable explanation for the failure to defend the action. Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Brooks v. Surman Dental Lab, Inc., 262 Pa. Super. 369, 396 A.2d 799 (1979). Appellee concedes that the petition was filed promptly. Brief for Appellee at 6. Given that we will reverse a denial of a petition to open judgment only upon a showing that the lower court abused its discretion, see, e.g., Forest Hills Transfer & Storage Co. v. Beaver Valley Builders, 271 Pa. Super. 566, 414 A.2d 628 (1978); Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 403 A.2d 577 (1979), the only question before us is whether in holding that appellant did not offer a reasonable explanation of its failure to defend the action, the lower court abused its discretion.

-1-

The lower court made no findings of fact as to whether appellant had received either the complaint or the notice of appellee's intention to enter a default judgment.

[ 314 Pa. Super. Page 81]

Without these facts, however, the court could not decide whether appellant had offered a reasonable explanation for its failure to defend the action. It was therefore the lower court's responsibility to make findings.

In other circumstances we might remand for findings, but here remand would be an empty gesture; if on remand the lower court were to find that appellant had received the complaint or the notice, we should set aside the findings because, as will appear from our ensuing discussion, the findings would not be supported by the record. See, e.g., Lawner v. Engelbach, 433 Pa. 311, 249 A.2d 295 (1969). See generally Thompson v. Equitable Life Assurance Society, 447 Pa. 271, 276, 290 A.2d 422, 424 (1972) (Appellate court may make its own findings of fact where "record is clear"); Innes v. Nanticoke City School District, 342 Pa. 433, 20 A.2d 225 (1941) (same).

-2-

The lower court found that the complaint was served on Vincent Char, the manager of appellant's store at Wayne and Chelten Avenue, Slip op. at 3, but held in effect that it was irrelevant to the propriety of the default judgment whether the complaint had been received at appellant's corporate headquarters. Said the court: "Defendant averred that neither it nor its adjusters had any knowledge or information with respect to service of the complaint. [Footnote:] ...


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