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IRENE MCPHERSON v. TUBE CITY TAXICAB COMPANY (11/18/83)

filed: November 18, 1983.

IRENE MCPHERSON, ADMINISTRATRIX OF THE ESTATE OF THOMAS E. MCPHERSON, DECEASED, ON BEHALF OF THE NEXT OF KIN OF THOMAS E. MCPHERSON, DECEASED, AND IRENE MCPHERSON, ADMINISTRATRIX OF THE ESTATE OF THOMAS E. MCPHERSON, DECEASED,
v.
TUBE CITY TAXICAB COMPANY, A CORPORATION, APPELLANT



No. 1006 Pittsburgh 1981, APPEAL FROM THE ORDER OF SEPTEMBER 17, 1981 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, CIVIL NO. GD 77-27261

COUNSEL

Cathie J. Fagan, Pittsburgh, for appellant.

Anton W. Bigman, Pittsburgh, for appellees.

Cavanaugh, Rowley and Cirillo, JJ.

Author: Cirillo

[ 321 Pa. Super. Page 146]

The appellant contends that the lower court erred in refusing to open a default judgment. We disagree and thus affirm the trial court.

This action was commenced on November 18, 1977 against the appellant in assumpsit and trespass for the wrongful death of Thomas E. McPherson. A complaint was filed on January 17, 1978. On February 21, 1978 counsel for appellant, James David Elder, requested and was granted by the appellees, additional time to file a responsive pleading.*fn1 Counsel for the appellees, Anton Bigman, alleges that he subsequently made a number of telephone calls to attorney Elder for the purpose of having him file an answer so that the case could proceed. In any event, the case was placed at Issue and received Issue Docket No. 104558. On May 8, 1980 this case appeared in the Legal Journal on the trial list for October 2, 1980. The required ten-day notice pursuant to Pa.R.C.P. 237.1*fn2 was then forwarded

[ 321 Pa. Super. Page 147]

    to the appellant and attorney Elder on May 8th since no answer or other responsive pleading had been filed. On May 29, 1980, a default judgment was entered. Thereafter, the appellant filed a petition for a rule to show cause why the default judgment should not be opened. The Rule was issued on July 14, 1980. By Order of the Honorable Frederick Weir, dated September 17, 1981, this Rule was discharged and the default judgment was upheld. This appeal followed.

It is axiomatic that in order to open a default judgment, the moving party must be able to demonstrate: (1) the petition to open was promptly filed; (2) the existence of a meritorious defense to the underlying claim; and (3) an excusable reason for the failure to act on the original complaint. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Academy House Council v. Phillips, 312 Pa. Super. 364, 458 A.2d 1002 (1983); Jenkins v. Blanchfield, 297 Pa. Super. 95, 443 A.2d 316 (1982). The existence of these factors depends on equitable considerations, including a weighing of the prejudices to each party arising from opening, or refusing to open, judgment. Hardware Wholesalers, Inc. v. Swope, 309 Pa. Super. 321, 455 A.2d 180 (1983); Toplovich v. Spitman, 239 Pa. Super. 327, 361 A.2d 425 (1976). See also: Roberts v. Roberts, 298 Pa. Super. 307, 444 A.2d 1188 (1982).

The appellant avers that the failure to file a responsive pleading was reasonably explained. There is no question that appellees initially provided appellant and attorney Elder with written notice as prescribed by Rule 237.1. However, appellant contends that the representations and conduct of appellees' counsel after receipt of notice by the appellant abbrogated the effect of the notice.

On May 14, 1980, after Notice of Intent to Take Default Judgment was received, attorney ...


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