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LOUIS A. SINES v. HAROLD W. PACKER AND KATHLEEN M. PACKER (07/22/83)

filed: July 22, 1983.

LOUIS A. SINES, A/K/A LOUIS F. SINES, AND ELIZABETH M. SINES, HUSBAND AND WIFE
v.
HAROLD W. PACKER AND KATHLEEN M. PACKER, HUSBAND AND WIFE, AND JOHN J. CARNEY AND ROBERT V. CARNEY. APPEAL OF JOHN J. CARNEY AND ROBERT V. CARNEY



No. 405 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division - Equity, of Bucks County at No. 78-12202-09-06.

COUNSEL

William T. Renz, Doylestown, for appellants.

Frank S. Guarrieri, Morrisville, for appellees.

Cavanaugh, DiSalle*fn* and Watkins, JJ. Cavanaugh, J., concurs in the result.

Author: Watkins

[ 316 Pa. Super. Page 502]

This case comes to us on appeal from the Court of Common Pleas of Bucks County and involves appellants' (Carneys) appeal from an order of court which refused their motion to open a default judgment entered against them in an Action to Quiet Title.

The action was commenced on November 29, 1978. The Complaint was served on appellants on December 7, 1978 by the Sheriff. A motion for judgment was filed by plaintiffs on January 5, 1979. On January 22, 1979 the court below issued an Order directing relief against defendants if they failed to take appropriate action within thirty (30) days of that date. On February 13, 1979 appellants took action when they filed a Petition to Open Judgment. Judgment had been entered against them on January 22, 1979. After depositions were submitted to it, the court below entered an order on January 23, 1981 dismissing appellants' petition. Appellants now appeal the refusal of the court below to grant their petition to open.

The plaintiffs brought their action to quiet title on a theory of adverse possession. In their complaint they allege that the appellants are the record owners of the property and cite a chain of title into appellants. Upon accepting service of the Complaint appellants turned it over to a Frank Manzo who had represented Berks Title Insurance Company in the past. However, unbeknownst to the appellants, his representation of Berks Titles had terminated in 1974 or 1975. (Berks Title was appellants' title insurance carrier for the property in question). Manzo told appellants that he would take care of the matter, but never informed Berks Title of the Complaint. Thus, the appellants

[ 316 Pa. Super. Page 503]

    failure to file a timely Answer to the Complaint was not their fault, nor that of their attorneys or insurance carrier. Also, their petition to open was timely filed.

The first issue on appeal is whether the pleading of a meritorious defense is necessary when filing a petition to open a default judgment to an action to quiet title. The court below held that it was necessary. The second issue is whether the appellants' petition to open did allege a meritorious defense. The court below held that it did not do so.

Neither party has cited, nor have we found, any case dealing specifically with the issue as to whether a meritorious defense need be alleged in a petition to open a judgment rendered in a case involving an action to quiet title. Thus, this issue is one of first impression.

In an assumpsit action, a petition to open a judgment will not be granted unless three conditions are met. The conditions are: (1) the petition has been filed promptly; (2) the default is reasonably explained; and (3) a meritorious defense is shown. Ecumenical Enterprises, Inc. v. Nadco Construction, Inc. 253 Pa. Superior Ct. 386, 391, 385 A.2d 392, 395 (1978). In a petition to open a default judgment in a trespass action, the petitioner must show: (1) that the petition to open was promptly and timely filed, and (2) there exists a legitimate explanation or excuse for the delay that occasioned the default judgment. Forest Hills Transfer v. Beaver Valley Builders, 271 Pa. Superior Ct. 566, 414 A.2d 628 (1979). Thus, in trespass actions, a meritorious defense need not be presented in a petition to open a judgment rendered in such a case. Appellants' argue that the rule regarding trespass actions should be applied to petitions to open judgments entered in actions to quiet title because in both cases the plaintiff has the burden of proving each and every allegation of his complaint. However, the plaintiff has the burden of proving the essential ...


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