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MARY ACKERMAN v. PORT AUTHORITY ALLEGHENY COUNTY (01/06/84)

filed: January 6, 1984.

MARY ACKERMAN, APPELLANT,
v.
PORT AUTHORITY OF ALLEGHENY COUNTY



No. 1093 Pittsburgh, 1981, Appeal from the Order of June 29, 1981 in the Court of Common Pleas of Allegheny County, Civil Action, No. 8203 of 1980

COUNSEL

Georgene Siroky, Pittsburgh, for appellant.

Christopher M. Fleming, Pittsburgh, for appellee.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Cercone

[ 323 Pa. Super. Page 377]

Appellant, Mary Ackerman, takes this appeal from the order and judgment of the lower court denying appellant's petition to make absolute a Rule to Show Cause why appellee, Port Authority of Allegheny County, should not open a default judgment, taken on April 4, 1981. In this appeal, appellant makes two arguments: (1) Whether the court erred in its determination that the parties' agreed-upon extension to file an answer was clearly documented; and (2) Whether the court disregarded relevant, appellate case law.*fn1 The gist of both of these arguments is that the lower court erred in finding that appellant did not reasonably explain her default. We find appellant's arguments to have merit, and we reverse.

This action had its inception on February 20, 1981, when appellee-plaintiff filed a complaint in trespass and assumpsit against appellant-defendant. On March 11, 1981, the twenty-day time period in which to file an answer expired and the next day, March 12, 1981, appellee mailed appellant notice of intent to take a default judgment within ten days. On March 18, 1981, appellant sought legal advice from present counsel, attorney Georgene Siroky. It was on this date that attorney Siroky learned of appellant's receipt of the ten day Important Notice and of possible default. Appellant

[ 323 Pa. Super. Page 378]

    did not have a copy of the complaint with her, explaining that she lost it, whereupon attorney Siroky telephoned counsel for appellee-plaintiff and requested a copy of the complaint and an extension. Appellee's counsel agreed to both requests, and appellant's counsel that same day sent a letter to appellee's counsel confirming the extension. On March 25, 1981, appellant's counsel received a copy of the complaint and a copy of the letter she had sent appellee's counsel, on which appellee's counsel wrote that the extension was to run until Monday, April 13, 1981. Upon receipt of this letter, counsel for appellant inadvertently recorded the deadline on her calendar as Monday, April 20, 1981. On April 14, 1981, appellee's counsel, having heard nothing further from appellant, entered the herewithin default judgment. Thereafter, on April 20, 1981, appellant's counsel learned of the default judgment when filing her answer to the complaint. Accordingly, on May 1, 1981, appellant filed the instant motion to open default judgment. After hearing arguments on the matter, the court denied appellant's petition, hence, this appeal.

It is a well-settled rule that to open a default judgment in an assumpsit action a petitioner must show that the petition was promptly filed, the petitioner has a legitimate explanation for the default, and there is an assertion of a meritorious defense to the complaint. Butterbaugh v. Westons Shopper City, Inc., 300 Pa. Superior Ct. 331, 446 A.2d 641 (1982). In trespass actions, a meritorious defense need not be demonstrated if the equities are otherwise clear. Hutchings v. Trent, 304 Pa. Superior Ct. 376, 450 A.2d 729 (1982). Since the instant action was filed in both assumpsit and trespass, all three factors will be examined.

Appellant first argues that the Court erred in concluding that the agreed upon extension was clearly documented. In this argument, appellant for the first time contends that there was a misunderstanding between the parties regarding the length of the extension. It is appellant's present assertion that counsel for appellant and counsel for appellee orally agreed by telephone to an extension of twenty business

[ 323 Pa. Super. Page 379]

    days from the date that appellant's counsel received a new copy of the complaint. Appellant asserts that the copy of the complaint was not received until March 25, 1981, and that twenty business days from ...


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