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MARK A. WOLFSKILL AND NANCY A. WOLFSKILL v. JAMES EGAN AND AGWAY (01/31/86)

filed: January 31, 1986.

MARK A. WOLFSKILL AND NANCY A. WOLFSKILL, APPELLANTS,
v.
JAMES EGAN AND AGWAY, INC.



APPEAL FROM THE ORDER ENTERED FEBRUARY 4, 1985 IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, CIVIL NO. 282 AUG. 1983, 182 JULY 1984 J.D.

COUNSEL

Neil L. Albert, Columbia, for appellants.

Richard L. Orwig, Reading, for appellees.

Wieand, Cirillo and Roberts, JJ. Wieand, J., files a dissenting statement.

Author: Cirillo

[ 350 Pa. Super. Page 224]

This is an appeal from an order of the Court of Common Pleas of Berks County granting appellees' petition to open a default judgment entered against them. Appellants obtained the default judgment after appellees did not timely file a responsive pleading. Now, appellants attack the petition as defective for several reasons, one being its failure to assert a meritorious defense to the underlying claim. The petition contained only a naked assertion that a defense did exist, unsupported by specifics. Appellees concede that such a hollow recitation is without effect if a duty to include a defense in the petition is imposed. We hold that appellees were obligated to assert a valid defense in the petition, and accordingly reverse.

[ 350 Pa. Super. Page 225]

In Alston v. Philadelphia Electric Co., 337 Pa. Super. 46, 486 A.2d 473 (1984), we recognized the long standing distinction between actions in trespass and assumpsit as they bore upon the requisite elements of a petition to open a default judgment. When the action sounded in assumpsit, i.e., contract, and a default judgment resulted, a petition to open the judgment was required to a) be filed promptly, b) demonstrate a reasonable excuse for the delay that precipitated the default judgment, and c) show the existence of a meritorious defense to the underlying substantive claim. If these conditions were met, good cause was proven and the judgment could properly be opened. Accord, McCoy v. Page 225} Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Atlas Aluminum Corp. v. Methods Research Products Co., 420 Pa. 407, 218 A.2d 244 (1966); Walters v. Harleysville Mutual Casualty Co., 417 Pa. 438, 207 A.2d 852 (1965); Autologic Inc. v. Cristinzio Movers, 333 Pa. Super. 173, 481 A.2d 1362 (1984); Chervenak, Keane and Co. v. Hotel Rittenhouse Associates, 328 Pa. Super. 365, 477 A.2d 487 (1984); American Express Co. v. Burgis, 328 Pa. Super. 167, 476 A.2d 944 (1984); Steinberg v. Sears, Roebuck and Co., 325 Pa. Super. 189, 472 A.2d 1072 (1984).

In contrast, when an action sounded in trespass, i.e., tort, a petition to open a default judgment only had to satisfy the first two prongs of the test; it was not necessary to plead a meritorious defense. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Kuntz v. Lanbar Hotel Co., Inc., 380 Pa. 90, 110 A.2d 249 (1955); Scott v. McEwing, 337 Pa. 273, 10 A.2d 436 (1940); Steinberg v. Sears, Roebuck and Co., supra; Hersch v. Clapper, 232 Pa. Super. 550, 335 A.2d 738 (1975).

The distinction was borne of practicality, being the result of a variance in pleading practices between actions in assumpsit and those in trespass. As our Supreme Court first explained in Scott v. McEwing, supra, an assumpsit action was not justiciable until an "affidavit of defense" was filed in response to the complaint. No such affidavit was required in a trespass action. Since assumpsit actions were the only ones calling for the pleading of a defense,*fn1 it logically followed that petitions to open default judgments would only have to show a meritorious defense when the actions sounded in assumpsit. In practice, however, the difference in petition requirements was often ignored. Since many cases were brought in assumpsit and trespass, there developed a summary recitation of the three prong test, unaccompanied by an explanation that it was only the

[ 350 Pa. Super. Page 226]

    presence of a claim in assumpsit that triggered all three prongs. In turn, such blanket reliance on all three aspects sometimes led to the improper result of requiring a petition to allege a valid defense even when the action was solely in trespass. See, e.g., Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Nonetheless, when the variance in requirements was not overlooked, it remained a sensible reflection of the underlying pleading difference between trespass and assumpsit actions.

The foundation upon which the distinction was based weakened in 1947. Pursuant to Pa.R.Civ.P. 1452, an "affidavit of defense" was no longer required. However, until the 1984 amendment to Rule 1001, it remained that in assumpsit all averments not specifically denied were deemed admitted, while in trespass (with certain enumerated exceptions), all ...


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