No. 116 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at No. G.D. 81-26265
Jonathan Walters, Pittsburgh, for appellants.
John J.B. Jones, Pittsburgh, for appellee.
Cavanaugh, Johnson and Montgomery, JJ.
[ 331 Pa. Super. Page 218]
The history of this case is set forth in the Opinion which was filed in this matter on April 13, 1984, 326 Pa. Super. 474, 474 A.2d 339. Pursuant to our request, and after reconsideration, the lower court has prepared and filed a supplemental opinion, setting forth its conclusion that the Defendant-Appellants' Preliminary Objections were properly rejected by the Allegheny County Prothonotary as a result of the Appellants' failure to accompany them with a brief, as required by Allegheny County Administrative Order No. 43. We can discern no error in this holding, which appears to conform literally to Administrative Order No. 43. Accordingly, it is clear, in light of the discussion and conclusions set forth in our earlier Opinion in this case, that the unfiled preliminary objections could not serve as a bar to the entry of a default judgment in favor of the Plaintiff-Appellee.
[ 331 Pa. Super. Page 219]
Although the significant questions relating to the attempted filing of the Appellants' preliminary objections have been resolved, issues remain to be addressed concerning the Appellants' subsequently filed petitions to strike, or, in the alternative, to open the default judgment. It is well-established that a petition to strike a judgment is properly granted only when a defect in the original judgment appears on the face of the record. Equibank, N.A. v. Dobkin, 284 Pa. Super. 143, 425 A.2d 461 (1981). The decision of the lower court as to whether to grant a petition to open a judgment is based upon equitable considerations. Foerst v. Rotkis, 244 Pa. Super. 447, 368 A.2d 805 (1976). A court should open a default judgment only when three conditions have been met: (1) the petition must have been promptly filed; (2) the default which led to the judgment must be satisfactorily explained; and (3) the existence of a meritorious defense to the cause of action must be shown. Kabanow v. Kabanow, 239 Pa. Super. 23, 361 A.2d 721 (1976).
The only arguable basis for the Appellants' petition to strike was the contention that the judgment was defective because of the Appellee's alleged failure to file an affidavit of non-military service. We have already rejected that contention. See footnote 3 of our April 13, 1984 Opinion in this case.
With regard to the petition to open, it is first apparent, and uncontested by the Appellee, that the Appellants moved expeditiously to seek to have the judgment opened in this case, having filed their petition within a few days after notification that a judgment had been entered. We therefore direct attention to the second requirement, that the moving party show some reasonable explanation for its failure to file a timely response which would have precluded a default. On that point, we find no basis to disturb the lower court's rejection of Appellants' petition to open the judgment.*fn1
[ 331 Pa. Super. Page 220]
In their petition to open judgment, the Appellants set forth:
13. Defendants' failure to timely file its [sic] Preliminary Objections is excusable under the ...