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RICHARD BILDSTEIN v. LORRAINE E. MCGLINN (10/21/83)

filed: October 21, 1983.

RICHARD BILDSTEIN
v.
LORRAINE E. MCGLINN, APPELLANT



No. 3129 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4230 October Term, 1980.

COUNSEL

Robert C. Steiger, Philadelphia, for appellant.

Phillip H. Baer, Philadelphia, for appellee.

Wieand, McEwen and Montgomery, JJ.

Author: Wieand

[ 320 Pa. Super. Page 418]

Lorraine E. McGlinn has appealed from an order of the trial court which denied her motion to strike or open a default judgment entered against her by Richard Bildstein. We agree fully with the trial court that there is no record

[ 320 Pa. Super. Page 419]

    defect that would permit a striking of the default judgment. We are constrained to conclude, however, that the circumstances surrounding the entry of the default judgment were such as to compel, in good conscience, an opening of the judgment and that it was an abuse of discretion to refuse to do so.

A petition to open a default judgment is an appeal to the court's equitable powers. Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 130 (1971); Kraynick v. Hertz, 443 Pa. 105, 109-110, 277 A.2d 144, 147 (1971); Hutchings v. Trent, 304 Pa. Super. 376, 378, 450 A.2d 729, 730 (1982); Penneys v. Richard Kastner Company, Inc., 297 Pa. Super. 167, 169, 443 A.2d 353, 354 (1982). The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law. Kennedy v. Frank L. Black, Jr., Inc., 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981); Balk v. Ford Motor Company, supra, 446 Pa. at 140, 285 A.2d at 131; Duffy v. Gerst, 286 Pa. Super. 523, 532-533, 429 A.2d 645, 650 (1981); Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 134, 403 A.2d 577, 579 (1979). In determining whether a judgment by default should be opened, a court must ascertain whether there are present any equitable considerations in the factual posture of the case which require that it grant to a defendant against whom the judgment has been entered an opportunity to have his day in court and to have the cause decided upon the merits. In so doing, the court acts as a court of conscience. Kraynick v. Hertz, supra 443 Pa. at 111, 277 A.2d at 147. Accord: Ecumenical Enterprises, Inc. v. Nadco Construction, Inc., 253 Pa. Super. 386, 394, 385 A.2d 392, 396 (1978). In general, a default judgment in a trespass action may be opened when the petition to open has been filed timely and the petitioner is able to demonstrate a reasonable excuse for the default. In such cases, a meritorious defense need not be shown if the equities are otherwise clear. See: Balk v. Ford Motor Company, supra 446

[ 320 Pa. Super. Page ]

Page 420of time within which to answer, explaining that he was forwarding the complaint to Mrs. McGlinn's insurance carrier. The insurance carrier received the complaint and, on December 3, 1980, forwarded the file to Robert C. Steiger, Esquire, with instructions to defend the action. Steiger checked the docket of the prothonotary in Philadelphia on December 10, 1980 and observed that no service of process had been noted on the docket. Steiger continued to check the docket periodically, but he did not enter an appearance for appellant or file a pleading as the docket still did not reflect service of process on Mrs. McGlinn and he did not wish to waive a defect in service, if any existed. On January 8, 1981, Steiger sent the following letter to McGlinn's insurance carrier:

"We have made several efforts to file an appearance in the above matter but the docket still does not reflect any service on the defendant. Would you be so kind as to check with the insured and determine whether or not service was properly made in this matter."

Thereafter, Mrs. McGlinn provided erroneous information that her copy of the complaint had been sent by certified mail and not by personal service. On February 3, 1981, Mrs. McGlinn received a notice of intent to enter a default judgment against her. She contacted Devery, her personal attorney, who promptly forwarded it to Steiger. Steiger placed two calls to Bildstein's counsel, which were ...


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