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JOHN & GLORIA VERSAK v. ANTOINETTE WASHINGTON AND KEVIN HILL (09/02/86)

submitted: September 2, 1986.

JOHN & GLORIA VERSAK
v.
ANTOINETTE WASHINGTON AND KEVIN HILL, APPELLANTS



Appeal from the Order of October 18, 1985, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3318 July Term 1985.

COUNSEL

Frank D. Branella, Philadelphia, for appellants.

Kevin Livesay, Philadelphia, for appellees.

Watkins, Hoffman and Hester, JJ.

Author: Hester

[ 359 Pa. Super. Page 456]

This appeal is from an order entered October 18, 1985, denying appellants' petition to open default judgment. We reverse and order that the judgment be opened.

On December 7, 1983, the automobile in which appellants, Antoinette Washington and Kevin Hill, were riding collided with the vehicle occupied by appellees, John and Gloria Versak. On December 14, 1983, appellees filed a claim in the Philadelphia Municipal Court against appellants for $476.18 in property damage. Appellants did not appear at the hearing scheduled for January 24, 1984, and the municipal court entered a default judgment for appellees in the requested amount. On January 25, 1984, the municipal court sent a notice to appellants, stating that a judgment had been entered against them and advising of the proper procedure to satisfy the judgment.

On February 6, 1984, appellants filed an appeal from the judgment of the municipal court to the Court of Common Pleas of Philadelphia County. On May 31, 1985, appellants filed a petition to open judgment in the municipal court, which was the correct procedure to obtain review of the judgment. The municipal court entered a rule to show cause why the judgment should not be opened, returnable June 20, 1985. On that date, the municipal court, without opinion, denied appellants' petition. The record contains no transcript of the proceedings held on June 20, 1985. On July 18, 1985, appellants filed an appeal from the refusal to open the default judgment to the Court of Common Pleas of Philadelphia County. This appeal followed the common pleas court's affirmance of the municipal court's determination.

In their petition to open judgment, appellants alleged the following: They forwarded their copy of the statement of claim filed in the municipal court in December, 1983, to their attorney. This statement, which contained notice of the January 24, 1984 hearing, was received by the attorney on an unknown date before February 6, 1984. Appellants believed that by forwarding the statement to the attorney,

[ 359 Pa. Super. Page 457]

    their interests were adequtely represented, and they did not attend the January 24th hearing. Upon receipt of the notice that judgment had been entered, the attorney, acting upon erroneous advice by the municipal court clerk, filed a direct appeal to the court of common pleas instead of a petition to open in the municipal court. In May, 1985, counsel for appellees advised appellants that he would raise the default judgment as a res judicata or collateral estoppel bar to a claim pending by appellants against appellees arising out of the same traffic accident. Appellants' counsel then realized that he had proceeded incorrectly in 1984. Appellants also allege that they were not negligent in causing the accident, but, on the contrary, alleged that appellees' negligence was the proximate cause of the incident. This presents a valid defense to the claim.

A petition to open default judgment should be granted if the petition has been promptly filed, the default can be reasonably explained or excused, and the existence of a meritorious defense to the underlying substantive claim is shown. Wolfskill v. Egan, 350 Pa. Super. 223, 504 A.2d 326 (1986).

The court of common pleas, sitting as an appellate court, found that appellants had a meritorious defense to the claim which was the subject of the default. The court refused to disturb the municipal court's decision, however, stating only that appellants had "failed to satisfy either of the ...


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