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filed: March 10, 1986.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3729 April 1984.


Charles W. Craven, Philadelphia, for appellant.

Lynda M. Scher, Philadelphia, for appellee.

Cirillo, Montemuro and Popovich, JJ. Montemuro, J., files a dissenting opinion.

Author: Popovich

[ 351 Pa. Super. Page 331]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying a petition to open judgment. We reverse and remand.

On April 19, 1984, the plaintiff/appellee, Patricia Hudgins, filed a complaint in trespass alleging that she sustained injuries when she fell on "slippery and/or sticky substances remaining on the floor" of the defendant/appellant, Jewel T Discount Store, in Philadelphia, Pennsylvania. Further, the complaint contained a standard notice to defend informing the defendant that if it did not take action

[ 351 Pa. Super. Page 332]

    within twenty days of service of the complaint, a judgment might be entered against it.

Service of the complaint was made by the Sheriff's Office at the defendant's Philadelphia store on April 24, 1984 by handing the document to the manager, Henry Hubbs. When no response was forthcoming from the defendant, counsel for the plaintiff sent a Notice of Intention to Take Default Judgment on May 18, 1984. The notice was mailed to the same address as the complaint was served, and the return receipt indicated that it was received by the manager/Hubbs on May 21, 1984.

When the defendant failed to act within the ten-day period recited in the notice, the plaintiff sought and was granted a default judgment on May 30, 1984.

The defendant filed a petition to open on June 5, 1984. Therein, it was alleged by the defendant that Hubbs had forwarded the complaint "within a few days" after its receipt to the district office in Blue Bell, Pennsylvania. Next, the defendant averred that the complaint was never received by its office in Blue Bell, and, if its district manager in Blue Bell had received the complaint, the information would have been sent on to its Chicago-based Special Services Department. Further, the defendant stated that a representative of Special Services had advised it that, as of June 4, 1984, the complaint had not yet been received.

In the remaining portion of the petition, as is relevant here, the defendant admitted receiving notice of the plaintiff's intention to seek a default judgment, but, it contended, Special Services was not advised of this fact until one day after the entry of the default judgment. Likewise, according to the defendant, the failure to act promptly was caused by the complaint allegedly being "lost in the mail between Blue Bell, Penna. and Chicago, Illinois."

After the plaintiff submitted a response to the petition to open, the court denied the defendant's request for relief. This appeal followed.

[ 351 Pa. Super. Page 333]

It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court and will not be overturned on appeal absent an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Prior to granting a petition to open in a trespass action, the petitioner must establish that: (1) the petition was promptly filed after the judgment was entered, and (2) a legitimate explanation exists for the default. If the equities are otherwise clear, a meritorious defense need not be demonstrated.*fn1 Hutchings v. Trent, 304 Pa. Super. 376, 450 A.2d 729 (1982).

In regard to the promptness with which the petition to open was filed, we do not take issue with the lower court's determination that, because it was filed within six days after entry of judgment, it was timely. However, the same result does not obtain in respect to the second prong, and the reason is that certain facts set forth in the petition were denied by the plaintiff. This put the burden of proof upon the moving party, i.e., the party asking that the judgment be opened. D'Amore v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966).

Instantly, the defendant alleged in its petition to open at points 2-4 that Hubbs mailed the complaint to the district manager in Blue Bell within a few days of its receipt, and that neither the district manager nor its Special ...

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