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BENSALEM TOWNSHIP v. WAYNE TERRY AND HARRY TERRY (07/29/83)

filed: July 29, 1983.

BENSALEM TOWNSHIP, APPELLANT,
v.
WAYNE TERRY AND HARRY TERRY, INDIVIDUALLY AND T/A TERRY'S MOBILE HOME, INC., AND WILLIAM AND LOIS HAVRILLA



No. 129 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bucks County, Civil No. 80-7170-13-5.

COUNSEL

Leslie G. Dias, Bensalem, for appellant.

Warren L. Simpson, Jr., Philadelphia, for appellees.

Brosky, Rowley and Montgomery, JJ.

Author: Rowley

[ 317 Pa. Super. Page 381]

This is an appeal from an order granting the petition of William and Lois Havrilla, Appellees, to open a default judgment entered against them and in favor of appellant. For the reasons which follow, we affirm.

Appellant, Bensalem Township, instituted an action in equity against Appellees, William and Lois Havrilla, as well as the Havrillas' lessors, Wayne and Harry Terry. The Township seeks to have the Havrillas' mobile home removed

[ 317 Pa. Super. Page 382]

    from its present location because, as alleged by appellant, (1) it is in violation of one or more unspecified zoning ordinances; (2) the Havrillas failed to comply with other zoning ordinances in failing to obtain occupancy and other unspecified permits; and (3) the mobile home partially blocks ingress and egress to the Terrys' mobile home park thereby creating a public nuisance. The Township's complaint was properly served on July 7, 1980. On July 28, 1980, not having received an answer from appellees,*fn1 the Township mailed to the Havrillas a notice of intention to take default judgment in accordance with Pa.R.C.P. No. 237.1. The Township caused a default judgment to be entered against the Havrillas on August 15, 1980, because they had not yet served or filed their answer to the complaint. The Havrillas received notice of the judgment on August 18, 1980. Counsel for the Havrillas entered his appearance on September 8, 1980. On October 24, 1980, the Havrillas filed a petition to open the default judgment, accompanied by supporting affidavits. On November 5, 1980, the Township filed an answer and new matter to the petition. The Havrillas responded with a reply to the new matter, supported with further affidavits, and a memorandum of law which were filed on November 24, 1980. The Township filed its memorandum of law on November 25, 1980. On December 8, 1980, the Havrillas filed yet another memorandum with three more affidavits. On December 30, 1980, the trial court entered an order granting the Havrillas' petition. Approximately three weeks later, the Township filed the instant appeal.*fn2

Our review of such orders is limited by several well-settled principles.

[ 317 Pa. Super. Page 383]

A petition to open a default judgment . . . is an appeal to the equitable power of the court and is to be exercised only when three factors coalesce: 1) the petition has been promptly filed; 2) a meritorious defense can be shown; 3) there is a reasonable excuse for failure to file an answer . . . . This court will not reverse a lower court ruling, either opening or refusing to open a default judgment, unless an error of law or a clear manifest abuse of discretion is shown.

Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 133-134, 403 A.2d 577, 579 (1979) (citations omitted). The Township presents five questions*fn3 encompassing all of the issues attendant ...


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