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MARIE B. HECK v. THOMAS A. HECK (12/10/87)

filed: December 10, 1987.

MARIE B. HECK, APPELLEE,
v.
THOMAS A. HECK, APPELLANT



Appeal from the Order of the Court of Common Pleas of Berks County, Civil at No. 5495 Equity DKT 1986, No. 217 March, No. March 1986 J.D.

COUNSEL

Lynne Z. Gold-Bikin, Norristown, for appellant.

Lind K.M. Ludgate, Reading, for appellee.

Montemuro, Popovich and Cercone, JJ.

Author: Montemuro

[ 370 Pa. Super. Page 536]

This case commenced with appellant's institution of a complaint in equity, filed February 24, 1986, requesting the court to set aside a post-nuptial agreement entered into by the parties. Appellee responded with preliminary objections which were overruled on June 2, 1986 by the trial court in an order requiring appellant to file an Answer within 20 days of the order. On June 27, appellee took a default judgment. Appellant's motion to open was denied on July 16, and a petition for reconsideration was filed on July 24. On July 25 appellant filed a notice of appeal to this court from the default judgment. On August 7 the trial court entered an order directing that the parties list the reconsideration petition for argument. However, on September 29 the court rescinded its August 7 order on the grounds that having failed to grant reconsideration within 30 days as is required by Pa.R.A.P. 1701(b(3)(ii),*fn1 it was divested of jurisdiction to consider the petition.

On appeal, appellant argues that the court's refusal to open the default judgment was an abuse of discretion. He bases this claim on appellee's failure to give notice of her

[ 370 Pa. Super. Page 537]

    intention to take default judgment under Pa.R.C.P. 237.1(b).*fn2

The law is well settled that:

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.

Rousley v. D.C. Ventre & Sons, Inc., 361 Pa. Super. 253, 256, 522 A.2d 569, 571 (1987). Further, "all three parts of the test should be evaluated in light of all the circumstances and equities of the case." Autologic Inc. v. Cristinzio Movers, 333 Pa. Super. 173, 178 n. 2, 481 A.2d 1362, 1364 n. 2 (1984); Provident Credit Corp. v. Young, 300 Pa. Super. 117, 131, 446 A.2d 257, 264 (1982).

The trial court, having correctly applied the elements of this standard, found that while the petition was indeed promptly filed and that appellant could mount a meritorious defense, nevertheless, he had failed to provide an acceptable excuse for neglecting to file his Answer within the appointed period. The explanation raised in the original petition to open was that appellant had been on vacation and was therefore unavailable to sign the Answer which had been ordered. The trial court correctly determined that this apologia was insufficient since ...


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