Appeal from the Order of Court entered April 21, 1986, in the Court of Common Pleas of Indiana County, Civil Division, at No. 1072 C.D. 1985.
Jay Y. Rubin, Indiana, for appellants.
Michael J. Toretti, Indiana, for appellees.
Del Sole, Kelly and Popovich, JJ.
[ 361 Pa. Super. Page 255]
Presented for our consideration is an appeal from the Order of Court, filed April 21, 1986, in which Appellants' petition to open a default judgment was denied.
The procedural history of this case may be adequately summarized as follows: On July 19, 1985, Appellees filed a complaint against Appellants for payment of materials and labor performed pursuant to a contractual agreement in which Appellees agreed to install sidewalks and curbs for Appellants. Preliminary objections were filed and argued. Thereafter, on January 22, 1986, the hearing court denied Appellants' preliminary objection and, by Order of Court, directed Appellants "to file an answer within 20 days from the date of [said] order or suffer a default judgment." (Appellants' Brief, p. 4). An answer to Appellees' complaint was not filed within this period. Subsequently, on February 12, 1986, Appellees filed a praecipe for entry of a default judgment with the Prothonotary of Indiana County. Appellants later filed a petition to open the judgment on February 14, 1986. Following argument on this petition, an Order of Court was filed on April 22, 1986 refusing Appellants' petition to open the default judgment. This appeal follows.
By their brief, Appellants raise two issues:
1. whether the Appellees were required to give notice of their praecipe to enter a default judgment, and if so, was failure to do so grounds for opening the judgment; and,
2. whether the hearing judge erred in denying Appellant's petition to open the default judgment without consideration of the equities affecting Appellants.
[ 361 Pa. Super. Page 256]
Initially we set forth our appellate scope of review. It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984).
Prior to granting a petition to open judgment, the petitioner must establish that: 1. the petition was promptly filed after the judgment was entered; 2. a legitimate explanation exists; and, 3. a meritorious defense to the underlying substantive claim is advanced. Wolfskill v. Egan, 350 Pa. Super. 223, 224, 504 A.2d 326, 327 (1986). We are satisfied that Appellants have met the first requirement of the three-pronged standard of review inasmuch as the petition to open judgment was filed ...