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

SUPERIOR COURT OF PENNSYLVANIA


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 that appellee had failed to explain adequately the default. Both parties filed memoranda of law, and on July 8, 1981, without receiving evidence via depositions or in any other manner, the court granted appellee's petition and opened the judgment.

[ 316 Pa. Super. Page 278]

A petition to open a default judgment in assumpsit is an appeal to the equitable power of the court. Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130 (1971); Penneys v. Richard Kastner Company, Inc., 297 Pa. Super. 167, 169, 443 A.2d 353, 354 (1982); Carson Pirie Scott & Co. v. Phillips, 290 Pa. Super. 353, 356, 434 A.2d 790, 791 (1981). As a general rule, this power will not be exercised unless three factors coalesce: (1) the petition must have been promptly filed; (2) a meritorious defense must exist; and (3) there must be a reasonable excuse for the failure to file a timely answer. Commonwealth, Department of Page 278} Transportation v. Nemeth, 497 Pa. 580, 583, 442 A.2d 689, 691 (1982); Kennedy v. Frank L. Black Jr., Inc., 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981); Balk v. Ford Motor Co., supra, 446 Pa. at 140 & n. 3, 285 A.2d at 130-131 & n. 3; Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa. Superior at 529, 456 A.2d at 1062; Butterbaugh v. Westons Shopper City, Inc., 300 Pa. Super. 331, 334 & n. 1, 446 A.2d 641, 642 & n. 1 (1982); American Vending Company, Inc. v. Brewington, 289 Pa. Super. 25, 28, 432 A.2d 1032, 1034 (1981); Shainline v. Alberti Builders, Inc., supra, 266 Pa. Superior at 133-134, 403 A.2d at 579. An appellate court will not reverse a trial court's ruling, whether opening or refusing to open a default judgment, unless it is shown that the court committed an error of law or manifestly abused its discretion. Kennedy v. Frank L. Black Jr., Inc., supra, 492 Pa. at 401, 424 A.2d at 1252; Balk v. Ford Motor Co., supra, 446 Pa. at 140, 285 A.2d at 131; Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa. Superior at 529, 456 A.2d at 1062; Penneys v. Richard Kastner Company, Inc., supra, 297 Pa. Superior at 169, 443 A.2d at 354; Carson Pirie Scott & Co. v. Phillips, supra, 290 Pa. Superior at 356, 434 A.2d at 791; Duffy v. Gerst, supra, 286 Pa. Superior at 532-533, 429 A.2d at 650; Cruse v. Woods, 279 Pa. Super. 242, 245, 420 A.2d 1123, 1124 (1980); Shainline v. Alberti Builders, Inc., supra, 266 Pa. Superior at 134, 403 A.2d at 579.

The petition to open the default judgment in this case was filed on April 27, 1981, and appellant concedes that the requirement of promptness was met. However, appellant is correct when he argues that the record in its present state does not permit a determination that appellee's default should be excused. The petition contains averments that the defendant-appellee was informed erroneously regarding the exact date of service and that the answer to the complaint was timely prepared but inadvertently delivered late to the prothonotary for filing by counsel. These averments have been effectively denied by appellant. After appellant's

[ 316 Pa. Super. Page 279]

    answer to the petition was filed, neither party proceeded under Pa.R.C.P. 209 to provide the court with the facts required to decide the petition to open. The failure to take depositions did not automatically trigger Rule 209 and operate as an admission by appellee of the averments of fact contained in the answer. Such facts will be deemed admitted only when the petitioner has ordered the cause for argument on the pleadings or when the petitioner has ignored a rule absolute to move for depositions. Philadelphia City Employees Federal Credit Union v. Bryant, supra, 310 Pa. Superior at 531, 456 A.2d at 1063; Hutchings v. Trent, supra, 304 Pa. Superior at 381, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra, 304 Pa. Superior at 161, 450 A.2d at 151; Shainline v. Alberti Builders, Inc., supra, 266 Pa. Superior at 137 n. 4, 403 A.2d at 580 n. 4. Here, as in Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., supra, "appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and the answer, the lower court granted the petition. That decision was premature." Id., 248 Pa. Superior at 181-182, 374 A.2d at 1379 (footnote omitted) (emphasis supplied). It could not properly act until it was in a position to determine the disputed facts. See: Hutchings v. Trent, supra, 304 Pa. Superior at 381, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra, 304 Pa. Superior at 161-63, 450 A.2d at 151-152; Duffy v. Gerst, supra at 538-539, 429 A.2d at 653-654; J.C.S. v. D.M.S., 277 Pa. Super. 612, 622, 419 A.2d 1319, 1324 (1980); Shainline v. Alberti Builders, Inc., supra, 266 Pa. Superior Ct. at 137-138, 403 A.2d at 580-581; America Corporation v. Cascerceri, supra at 580 n. 6, 389 A.2d at 129 n. 6; Zinck v. Smashy's Auto Salvage, Inc., supra, 250 Pa. Superior Ct. at 556-557, 378 A.2d at 1288; Maurice Goldstein Company v. Margolin, supra, 248 Pa. Superior Ct. at 166-167, 374 A.2d at 1371. Rule 209 placed no time limits on either party

[ 316 Pa. Super. Page 280]

    to proceed, and until either party took action that would enable the court to make a factual determination, or until some other force spurred matters along,*fn4 the court could not properly act on appellee's petition.

The averment in the petition to open that appellee did not order the newspaper advertising, if correct, is a complete defense to appellant's claim for the price thereof. It is fundamental that for an agreement to exist there must be an offer and acceptance which signifies that there has been a "meeting of the minds." Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa. Super. 436, 439-440, 406 A.2d 1120, 1122 (1979). Without such assent there can be no enforceable agreement. Rissmiller v. Evangelical Lutheran Congregation, 268 Pa. 41, 110 A. 740 (1920); Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa. Super. 40, 54, 445 A.2d 1288, 1295 (1982); Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, supra. Thus, it is inconsequential that appellant's assignor printed ads if, in fact, appellee did not order or agree to pay for them. See generally: 31 P.L.E., Sales § 12.

The defendant-appellee contends that the averments of fact in the petition must be deemed admitted because of appellant's failure to file an adequate answer thereto. Appellant's claim for the price of printing newspaper advertisements was based on an alleged contract. Therefore, a specific denial was necessary. It was inadequate to deny appellee's averment generally and aver that appellant had no knowledge of the existence of a contract after reasonable investigation. Such a response was so inherently incredible that under normal circumstances it would have to be deemed an admission. See: Scales v. Sheffield Fabricating and Machine Co., 258 Pa. Super. 568, 393 A.2d 680 (1978); Cercone v. Cercone, 254 Pa. Super. 381,

[ 316 Pa. Super. Page 281386]

A.2d 1 (1978); Delaware Valley Carpeting Contractors, Inc. v. Leicht, 73 D. & C.2d 51 (1975), aff'd, 234 Pa. Super. 714, 342 A.2d 419 (1975). See also: Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951); Tide Water Associated Oil Co. v. Kay, 168 Pa. Super. 263, 77 A.2d 754 (1951); Goodrich-Amram 2d § 1029(c):1. However, appellee's petition was itself defective. Pa.R.C.P. 206 requires that every petition "containing allegations of fact which do not appear of record shall be verified by affidavit." This incorporates into petition practice the verification requirements of Pa.R.C.P. 1024 and requires verification by a party. Verification by another having knowledge of the facts will suffice only if the reason why the verification was not made by a party is recited. Warren v. Williams, 370 Pa. 380, 88 A.2d 406 (1952). The petition to open judgment in this case was verified by counsel without any explanation concerning the source of his information or the reason why the verification was not made by a party. This defect was not fatal to the petition. See: Lewis v. Erie Insurance Exchange, 281 Pa. Super. 193, 421 A.2d 1214 (1980); Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa. Super. 549, 405 A.2d 954 (1979); Davis v. Safeguard Investment Company, 239 Pa. Super. 300, 361 A.2d 893 (1976). See also: George H. Althof, Inc. v. Spartan Inns of America, Inc., 295 Pa. Super. 287, 441 A.2d 1236 (1982). However, because the petition was itself defective, appellant's failure to file an adequate answer thereto cannot be deemed an admission. Warren v. Williams, supra. Thus, there is no admission by appellant that appellee has a defense to appellant's claim, and the existence of a defense to appellant's action in assumpsit must also be developed factually before appellee's petition to open can be determined. To entitle appellee to have the judgment opened, appellee must produce evidence which would require a jury to consider the contention that appellant's assignor acted as an officious volunteer and not pursuant to contract in printing advertisements

[ 316 Pa. Super. Page 282]

    for which recovery is sought in the present assumpsit action.*fn5

Reversed and remanded for proceedings consistent with this opinion.


*fn* The preparation of an opinion for the court was reassigned to the writer on May 16, 1983.


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