Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil, at No. 84-14149.
Arsen Kashkashian, Jr., Philadelphia, for appellants.
Milton A. Wollman, Philadelphia, for appellee.
Cavanaugh, McEwen and Montemuro, JJ. Cavanaugh, J., concurs in the result.
[ 362 Pa. Super. Page 231]
This is an appeal from an order of the Montgomery County Court of Common Pleas denying appellant's petition to strike and/or open a default judgment. On September 17, 1984, appellee Central Penn National Bank ("Central Penn") filed a complaint against appellant, as a surety, and others to recover monies due under a loan and suretyship agreement executed on June 22, 1977. On October 24, 1984, in response to a motion for a more specific complaint filed by appellant's co-defendants, Central Penn filed an amended complaint against appellant and his co-defendants but failed to serve process on appellant. Consequently, on April 18, 1985, appellee reinstated the amended complaint. On April 27, 1985, appellee personally served appellant at his principal residence. Appellant never filed any responsive pleadings. On May 18, 1985, pursuant to Pa.R.C.P. 237.1, appellee mailed to appellant at his principal residence a ten-day notice of praecipe for entry of default judgment. On May 30, 1985, a praecipe for judgment was filed, and a judgment by default was entered against appellant for $68,205.34.
On July 10, 1985, appellant filed a petition to strike and/or open judgment. He alleged that he never received the notice of praecipe for entry of default judgment because he was out of town when it was mailed. On August 14, 1985, appellee filed an answer to the petition. On October 21, 1985, without taking any depositions, appellant filed a praecipe to list the case for argument. After hearing oral argument on the petition and answer, the court of common pleas denied the petition.
Appellant raises a single issue on appeal: Is mailing of the notice to defendant's principal address sufficient to comply with the requirements of Pa.R.C.P. 237.1, or must the defendant actually receive such notice? The trial court found that actual receipt of the notice by defendant is unnecessary and that mailing the notice to an address known to be defendant's principal residence is sufficient. We agree and therefore affirm the order of the trial court.
[ 362 Pa. Super. Page 232]
Ordinarily, the entry of a default judgment is conclusive. A petition to strike judgment may be granted only when a fatal defect appears on the face of the record. Parliament Industries v. William H. Vaughn & Co., 501 Pa. 1, 459 A.2d 720 (1983). On the other hand, a petition to open is addressed to the equitable powers of the court and will not be overturned absent an error of law or a clear, manifest abuse of discretion. Hudgins v. Jewel T Discount Store, 351 Pa. Super. 329, 505 A.2d 1007 (1986). Moreover, a court generally may not open a judgment unless the petitioner meets the following requirements:
(1) the petition has been filed promptly;
(2) the failure to act on the original complaint can be ...