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PETRUZZI'S IGA v. JOSEPH PAVLICK (11/03/86)

filed: November 3, 1986.

PETRUZZI'S IGA, INC. AND PAUL J. PETRUZZI, APPELLANTS,
v.
JOSEPH PAVLICK



Appeal from the Order entered in the Court of Common Pleas of Luzerne County, Civil Division, No. 817 C of 1985

COUNSEL

David L. Glassberg, Hazleton, for appellants.

Brian C. Corcoran, Hazleton, for appellee.

Cirillo, President Judge, and Cavanaugh and Tamilia, JJ.

Author: Tamilia

[ 358 Pa. Super. Page 204]

Plaintiffs/appellants, Petruzzi's IGA, Inc. and Paul J. Petruzzi, appeal from the Order of the lower court granting defendant/appellee's petition to open a default judgment.

On March 7, 1985, appellants filed a complaint against appellee seeking damages which were allegedly incurred as a result of the destruction of appellants' rental property by appellee's negligence. On April 3, 1985, the local court granted appellee thirty days after appellant's response to discovery before it was required to answer the complaint. Appellee obtained a court Order on July 8, 1985 ordering appellants' attorney to turn over requested material by July 19, 1985. Following receipt of these documents, appellee deposed appellants on August 7, 1985.

Subsequently, the attorneys agreed between themselves that appellee's answer would be due October 4, 1985. However, appellee did not receive a transcription of the deposition of appellants from the reporting service until October 2, 1985. Appellee then asked appellants for another twenty-day extension in which to prepare his answer. Appellee requested, by letter, that appellants respond to the request

[ 358 Pa. Super. Page 205]

    as promptly as possible so that in the event appellants denied the request, appellee could petition the court for an extension. Appellants denied the request by phoning appellee's office on Friday afternoon, October 4, 1985, and leaving a message with appellee's secretary.

On Monday, October 7, 1985, at 9:00 a.m., appellants requested, and the prothonotary granted, a default judgment based on appellee's failure to answer. Notice by the prothonotary of the default judgment was filed at 9:02 a.m. No prior notice of the pending default was given to appellee as none was required under Pa.R.C.P. 237.1(a) because the default occurred after the specified time in a written agreement of extension. Eight minutes after the default judgment was filed, the lower court granted appellee an additional fifteen days to answer the complaint.*fn1

On October 8, 1985, appellee filed a petition to strike or open judgment. The lower court granted appellee's motion to open the judgment, concluding the three requirements of Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984), had been met*fn2 and, therefore, determined it was entitled to exercise its equitable discretion in deciding whether to open the judgment.

Our scope of review in a case such as this is very narrow. An appellate court will reverse the lower court only where there is a clear, manifest abuse of discretion or an error of law. ...


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