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AMERICAN EXPRESS COMPANY v. MICHAEL D. BURGIS (05/08/84)

filed: May 8, 1984.

AMERICAN EXPRESS COMPANY, APPELLANT
v.
MICHAEL D. BURGIS



No. 1400 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 2540 September Term, 1982.

COUNSEL

Louis Perez, Jr., Philadelphia, for appellant.

John M. Younge, Philadelphia, for appellee.

Cavanaugh, Brosky and Popovich, JJ. Brosky, J., files a concurring opinion.

Author: Popovich

[ 328 Pa. Super. Page 170]

This is an appeal by the appellant, American Express Company, from the Order of the Court of Common Pleas of Philadelphia County granting appellee's, Michael D. Burgis', Petition to Open a Default Judgment. We reverse.

The facts consist of the following: On September 21, 1982, appellant filed a complaint in assumpsit alleging that: 1) the appellee was the holder of a credit card issued to him by the appellant; 2) the appellee had made charges to the credit card in the amount of $4,579.00; and 3) the appellant had demanded payment of the amount stated, plus interest and attorney's fees, but the appellee had failed and refused to pay the sum due and owing.

On September 27, 1982, the complaint was served at the residence of Michael D. Burgis, located at 1318 South 15th Street, Philadelphia. Deputy Sheriff Nader, who effectuated delivery and documented the procedural compliance in the "Sheriff's Return of Service" slip, checked off the block in juxtaposition to the verbiage indicating that delivery was made at 3:00 p.m. to an "Adult in charge of Defendant's residence who refused to give [his/her] name or relationship."

In compliance with Pa.R.Civ.P. 237.1, appellant sent notice to the appellee, by letter dated October 21, 1982, informing him that failure to take any action "within ten days from the date of th[e] notice" could result in the entry of a judgment against him. The absence of any action on the part of the appellee by November 3, 1982, prompted the appellant to file a Praecipe. Therein, he sought the entry of a judgment "by default for want of an Answer" by the appellee in the amount of $6,213.70. Such a judgment was duly entered, with counsel for the appellee filing a Petition to Open on December 29, 1982. In the petition it was alleged, in relevant part, that:

4) Defendant avers that said Complaint was never properly served in accordance with the Rules of Civil Procedure.

[ 328 Pa. Super. Page 1715]

) That the Complaint was never served on him personally or left at his place of dwelling or business.

6) Further, that Defendant did not have the benefit of counsel to inform him of his rights.

In addition, counsel for the appellee submitted a document captioned "Memorandum of Law" that stated no more than: "The Court should be indulgent in opening decrees entered by default where a meritorius [sic] defense exists." However, nowhere was it asserted of what the "meritorious defense" consisted. In response to appellee's petition, appellant filed an Answer denying that appellee was not personally served with a copy of the complaint by the Deputy Sheriff. (See Appellant's "Answer to Defendant's Petition to Open Judgment," Points 4-6)

On March 28, 1983, appellee and Deputy Sheriff Nader were deposed. In the lower court's opinion to this Court, written after the instant appeal was filed, the judge wrote in pertinent part that:

Upon review of the depositions given by the defendant and the process server, this Court has found reason for giving the defendant's account of the facts credibility. The deposition of Michael Burgis, on both direct and cross examination, indicates that he was out of town on the date of service.

The deposition of the sheriff who served the Complaint, John W. Nader, shows that he cannot remember the person to whom he served the Complaint; nor could he remember if that person was male or female.

It is therefore possible that service was made at the wrong address. Nevertheless, this Court holds that the defendant has a reasonable excuse for not filing an Answer based upon his credibility established by the depositions.

(Lower Court Opinion at 4-5, 6 & 7)

[ 328 Pa. Super. Page 172]

Thereafter, by Order dated April 22, 1983, appellee's petition was granted for "good cause having been shown[.]" ...


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