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RIDGID FIRE SPRINKLER SERVICE v. S. SOLIS CHAIKEN AND SELMA CHAIKEN (09/07/84)

filed: September 7, 1984.

RIDGID FIRE SPRINKLER SERVICE, INC., APPELLANT,
v.
S. SOLIS CHAIKEN AND SELMA CHAIKEN, H/W, AND RONALD C. CARR



No. 2905 Philadelphia, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 4475 June Term, 1981.

COUNSEL

David C. Harrison, Philadelphia, for appellant.

Joseph Rappaport, Philadelphia, for appellees.

Cavanaugh, Wieand and Cirillo, JJ.

Author: Wieand

[ 333 Pa. Super. Page 216]

Ridgid Fire Sprinkler Service, Inc. has appealed from an order of the trial court opening a judgment obtained by default against Selma Chaiken. Because Mrs. Chaiken's petition to open was not timely filed and because she failed to offer a reasonable excuse for her default, we conclude that it was an abuse of discretion to open the judgment. Therefore, we reverse.

[ 333 Pa. Super. Page 217]

A petition to open a default judgment is an appeal to the court's equitable powers. Boyle v. Horstman, 311 Pa. Super. 109, 113, 457 A.2d 518, 520 (1983); Provident Credit Corp. v. Young, 300 Pa. Super. 117, 123, 446 A.2d 257, 260 (1982); Penneys v. Richard Kastner Co., 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. Bildstein v. McGlinn, 320 Pa. Super. 416, 418-419, 467 A.2d 601, 602 (1983); Academy House Council v. Phillips, 312 Pa. Super. 364, 369, 458 A.2d 1002, 1005 (1983); N.H. Weidner, Inc. v. Berman, 310 Pa. Super. 590, 592, 456 A.2d 1377, 1379 (1983). In determining whether a judgment by default should be opened, the court acts as a court of conscience. Kraynick Page 217} v. Hertz, 443 Pa. 105, 111, 277 A.2d 144, 147 (1971); Bildstein v. McGlinn, supra 320 Pa. Super. at 419, 467 A.2d at 603; Provident Credit Corp. v. Young, supra 300 Pa. Super. at 124, 446 A.2d at 261. "In order to open a default judgment, the Petition to Open must be: (1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense." Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa. Super. 145, 148, 439 A.2d 792, 794 (1982). See also: Sines v. Packer, 316 Pa. Super. 500, 503, 463 A.2d 475, 477 (1983); Triffin v. Thomas, 316 Pa. Super. 273, 277, 462 A.2d 1346, 1348-1349 (1983); Carson Pirie Scott & Co. v. Phillips, 290 Pa. Super. 353, 356, 434 A.2d 790, 791 (1981). "All three criteria must be met, and the three requirements must 'coalesce'." Keystone Boiler Works, Inc. v. Combustion & Energy Corp., supra, 294 Pa. Super. at 148, 439 A.2d at 794; American Vending Co. v. Brewington, 289 Pa. Super. 25, 28, 432 A.2d 1032, 1034 (1981).

Appellant filed a complaint in assumpsit against S. Solis Chaiken, his wife Selma, and Ronald C. Carr*fn1 to recover the unpaid cost of services rendered and fixtures installed upon real estate allegedly owned at various times by the several defendants. Service of process was made on Mr. and Mrs. Chaiken on July 10, 1981, when a deputy sheriff personally handed a copy of the complaint to Mrs. Chaiken at the Chaiken home. When the Chaikens failed to respond to the complaint, a notice of intent to take a default judgment was mailed by appellant to the Chaikens at their home on August 7, 1981. On August 24, 1981, judgment by default was entered against the Chaikens in Philadelphia, and notice thereof was sent to Mr. and Mrs. Chaiken by the prothonotary pursuant to Pa.R.C.P. 236. The judgment was thereafter transferred to Montgomery County on October 19, 1981, and notice of the entry of judgment in that county was also given. A Petition to Open the default judgment was filed by the Chaikens in Philadelphia County

[ 333 Pa. Super. Page 218]

    on December 10, 1981. The trial court granted the petition with respect to Mrs. Chaiken but refused to open the judgment against Mr. Chaiken. This timely appeal followed from the order opening the judgment against Mrs. Chaiken.*fn2 For purposes of this opinion, Mrs. Chaiken only will be referred to as the "appellee."

In a Petition to Open Judgment, appellee asserted that she had never had any ownership interest in the premises to which appellant had made repairs and that she had not been a party to any contract for such repairs. She alleged that she had been ill when the complaint was served, had mislaid the complaint, and had neglected to call it to her husband's attention. She cited as a reason for opening the judgment that appellant had failed to forward a copy of the complaint to her lawyer and that appellant had also failed to send to her lawyer a notice of intent to enter judgment by default. The trial court based its decision to open judgment on these considerations. Appellant contends that this was error. It is argued that appellee's default was unexplained and that her dilatoriness in failing to file promptly a petition to open should have precluded the opening of the judgment. Appellant contends also that it was error for the trial court to require that notice under Pa.R.C.P. 237.1(a) be given to counsel who had not previously entered an appearance of record on appellee's behalf.

Timeliness of a petition to open a default judgment is measured from the date of notice that the default judgment has been entered. Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974); Kabanow v. Kabanow, 239 Pa. Super. 23, 26 n. 3, 361 A.2d 721, 723 n. 3 (1976). Appellee conceded in depositions that she had received notice of the entry of judgment. Moreover, Joseph Rappaport, Esquire, representing himself to be the Chaikens' lawyer, had called appellant's counsel three ...


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