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filed: April 13, 1987.


Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. G.D. 85-10309.


Samuel P. Gerace, Pittsburgh, for appellant.

Barry M. Simpson, Pittsburgh, for appellee.

Brosky, Rowley and Popovich, JJ. Brosky, J., files a dissenting opinion.

Author: Popovich

[ 364 Pa. Super. Page 108]

This is an appeal from an order of the trial court which denied relief to appellant-defendant, Stop-N-Go Food Stores of Pittsburgh, Inc., after the filing of a petition to strike and/or open a default judgment. We affirm.

Appellant raises the following issues: (1) whether the default judgment was entered improperly because appellee-plaintiff,

[ 364 Pa. Super. Page 109]

John Marzullo, Jr., failed to file a notice of intent to take a default judgment; (2) whether appellant is entitled to reopen the judgment because it acted promptly and had a reasonable excuse and a complete defense to the appellee's claim; and (3) whether the default judgment was entered improperly for $14,575.27 because the appellee's claim was unliquidated.

We have reviewed appellant's contention and conclude that appellant is not entitled to relief. The third issue has been waived because appellant failed to present this theory at the trial level. Pa.R.A.P. 302(a). The other two issues must also be rejected.

On June 11, 1985, appellee filed a summons in civil action against his employer, Stop-N-Go Food Stores. On July 1, 1985, appellant filed a rule upon the appellee to file a complaint, and a complaint was filed five weeks later. On August 22, 1985, preliminary objections were filed on the basis that appellee failed to state a cause of action upon which relief could be granted. Appellee contended that his employer unilaterally changed the compensation program without additional consideration and breached the appellee's management contract.

These objections were granted in part and denied in part, and appellee was directed to file a more definite complaint. On October 16th, appellee filed an amended complaint. On November 15th, appellant filed a second set of preliminary objections to the amended complaint; these were dismissed without prejudice on December 6, 1985.

On January 13, 1986, appellant filed a motion for reconsideration, which was denied on January 24th. On February 18th a default judgment was entered. Appellant's petitions to strike and/or open judgment were denied, and this appeal followed.

Although appellant concedes the fact that an answer was not filed timely, appellant contends that appellee was

[ 364 Pa. Super. Page 110]

    required to file a notice of intent to enter a default judgment pursuant to Pa.R.C.P. 237.1. We do not agree.

Pa.R.C.P. 237.1(a) states:

Rule 237.1. Notice of Praecipe for Entry of Default Judgment

(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions No. 6 of 1974, P.L. 13, 41 P.S. ยง 101 et seq.

We have said that "[w]hether to strike a default judgment in an assumpsit action is left to the trial court, whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Paules v. Sminkey, 290 Pa. Super.Ct. 223, 227, 434 A.2d 724, 726 (1981)." Giallorenzo v. American Druggists Insurance Company, 301 Pa. Super. 294, 297, 447 A.2d 974, 975 (1982). We also recognize that "[j]udgments are stricken only for irregularity on the record. Once regularly entered, they can be opened only upon equitable principles." Estate of Blanche B. Levy By Levy v. CNA Insurance Company, 338 Pa. Super. 191, 198, 487 A.2d 919, 923 (1985). (Emphasis in original) (Citations omitted).

[ 364 Pa. Super. Page 111]

Thus, our concern is whether the record as filed by appellee "at entry is adequate to sustain the judgment, or is defective in some way." Parliament Industries, Inc. v. Page 111} William H. Vaughan & Co., Inc., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983) (citations omitted). In this case, because the record is not defective, we affirm the action of the trial court.

Our review of the record reveals that the parties executed a written agreement to file "an Answer or otherwise plead" by February 3, 1986. In a letter dated January 7, 1986, appellant's counsel forwarded a letter to appellee's counsel which confirmed the existence of a written agreement requiring appellant to respond to appellee's amended complaint. This letter stated the following:

"This will confirm an extension of time of thirty (30) days from January 3, 1986 for Defendant to file an Answer or otherwise plead to Plaintiff's Complaint. . . ." Record at No. 22, Exhibit C. (Emphasis added).

Appellant did not file an answer to the complaint; however, within the thirty day period appellant filed a "MOTION FOR RECONSIDERATION" on January 13, 1986, to the trial court's order which denied appellant's preliminary objections for the second time.

On January 24, 1986, the same date that the motion for reconsideration was denied, appellee's counsel drafted a letter which consisted of the following language:

January 24, 1986

Nicholas A. Pasciullo, Esquire

Jones, Gregg, Creehan and Gerace

16th Floor, Grant Building

Pittsburgh, PA 15219-2294

Re: Marzullo v. Stop-n-Go

Dear Mr. Pasciullo:

I was present before Judge Narick on January 24, 1986, at 9:30 at the date, time and place you designated in your letter of January 17, 1986. When, at 10 a.m., all other Motions had been presented, Judge Narick inquired as to the reason for my presence in the courtroom. I explained the situation and the Judge signed the Order attached to

[ 364 Pa. Super. Page 112]

    my Answer denying your Motion for Reconsideration and ordering $200.00 counsel fees.

A conformed copy of the Order of Court is enclosed herein. Pursuant to that Order, kindly forward to me a check payable to Brennan, Robins & Daley in the amount of $200.00 on or before February 3, 1986.

As you did ultimately schedule the argument on your Motion for Reconsideration, I will live with my extension of time of thirty days granted on January 3 1986, thereby expecting your ...

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