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ROBERT J. TRIFFIN v. ANITA THOMAS (07/01/83)

filed: July 1, 1983.

ROBERT J. TRIFFIN, T/A GENERAL FUNDING, APPELLANT,
v.
ANITA THOMAS, IND. AND T/A ANITA THOMAS, FIRST LADY OF MIRRORS



No. 1885 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Trial Div. Law, of Philadelphia County, No. 187 February Term, 1981.

COUNSEL

Robert J. Triffin, Philadelphia, appellant, in propria persona.

Sheldon C. Jelin, Philadelphia, for appellee.

Wieand,*fn* Beck and Hoffman, JJ.

Author: Wieand

[ 316 Pa. Super. Page 275]

The present appeal was taken from an order opening a default judgment. Because the order was based solely on petition and answer, without evidence from which a determination of disputed factual issues could be made, we reverse and remand for further proceedings.

It is now well settled that when a respondent effectively denies material allegations in a petition to open judgment, the petitioner must support his position with evidence. Bell v. Jefferson Republican Club, 304 Pa. Super. 157, 161, 450 A.2d 149, 151 (1982). Accord: Philadelphia City Employees Federal Credit Union v. Bryant, 310 Pa. Super. 526, 529, 456 A.2d 1060, 1062 (1983); Hutchings v. Trent, 304 Pa. Super. 376, 380, 450 A.2d 729, 731 (1982); Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 135, 403 A.2d 577, 580 (1979); Zinck v. Smashy's Auto Salvage, Inc., 250 Pa. Super. 553, 556, 378 A.2d 1287, 1288 (1977); Johnson v. Leffring, 211 Pa. Super. 84, 87, 235 A.2d 435, 436-437 (1967). The procedure for establishing such evidence is contained in Pa.R.C.P. 209.*fn1 Pursuant to that rule,

[ 316 Pa. Super. Page 276]

"the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer." Bell v. Jefferson Republican Club, supra, 304 Pa. Superior at 161, 450 A.2d at 151 (citations omitted). Accord: Paules v. Sminkey, 290 Pa. Super. 223, 227, 434 A.2d 724, 726 (1981); Duffy v. Gerst, 286 Pa. Super. 523, 538, 429 A.2d 645, 653 (1981); Shainline v. Alberti Builders, Inc., supra, 266 Pa. Superior at 137, 403 A.2d at 580-581; American Corporation v. Cascerceri, 255 Pa. Super. 574, 580 n. 6, 389 A.2d 126, 129 n. 6 (1978); Zinck v. Smashy's Auto Salvage, Inc., supra, 250 Pa. Superior at 556-557, 378 A.2d at 1288; Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., 248 Pa. Super. 176, 181-182, 374 A.2d 1376, 1378-1379 (1977); Maurice Goldstein Company v. Margolin, 248 Pa. Super. 162, 166-167, 374 A.2d 1369, 1371 (1977).

Robert J. Triffin, t/a General Funding, filed a complaint containing averments that he had purchased from Inter County Publishing Co., t/a "The Leader", a claim against Anita Thomas, t/a Anita Thomas First Lady of Mirrors, for newspaper advertising in the amount of $576 plus interest at the rate of 1 1/2 percent per month. The complaint was served upon the defendant, appellee herein, on February 19,

[ 316 Pa. Super. Page 2771981]

. On March 25, 1981, the plaintiff, appellant herein, caused a default judgment to be entered against the defendant-appellee for want of an answer.*fn2 On April 27, 1981, appellee filed a petition to open the judgment, in which it was alleged, inter alia, that the default had occurred because of a late delivery of the complaint to appellee's attorney and that appellee had "never ordered the advertising." The petition also contained an averment that appellant had failed to register his fictitious name*fn3 and that interest at the rate of 18 percent per annum was usurious. On May 18, 1981, appellant filed a "Reply and New Matter," in which he denied the allegation that the advertising had not been ordered and averred that "after reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth" thereof. For the same reason he denied that the interest included in the default judgment was usurious. In "New Matter," he contended ...


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