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JEANNE MCFARLAND v. H. CHRISTOPHER WHITHAM (07/27/88)

decided: July 27, 1988.

JEANNE MCFARLAND, INDIVIDUALLY AND JEANNE MCFARLAND, ADMINISTRATRIX OF THE ESTATE OF ROBERT C. MCFARLAND, DECEASED, APPELLANT,
v.
H. CHRISTOPHER WHITHAM, D.D.S., APPELLEE



Appeal from the Order entered May 13, 1986 in the Court of Common Pleas, Lehigh County, Civil Action, Law at No. 85-C-1181 and from the Order entered January 8, 1987 by the Superior Court of Pennsylvania at No. 01535, Philadelphia, 1986. 363 Pa. Super. 648; 522 A.2d 666 (1987).

COUNSEL

Joseph F. Leeson, Jr., William P. Leeson, Bethlehem, for appellant.

David E. Faust, Barbara S. Magen, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. McDermott, J., concurs in the result.

Author: Flaherty

[ 518 Pa. Page 497]

OPINION OF THE COURT

This is an appeal from a memorandum opinion and per curiam order of the Superior Court, 363 Pa. Super. 648, 522 A.2d 666 (1987), which affirmed an order of the Court of Common Pleas of Lehigh County granting a petition to open a default judgment. The default judgment had been entered in favor of the plaintiff, appellant Jeanne McFarland, in a wrongful death and survival action alleging malpractice of the defendant dentist, appellee H. Christopher Whitham, D.D.S. The facts of the case are as follows.

On October 1, 1985, the instant wrongful death and survival action was filed, and notice was given to file responsive pleadings within twenty days as provided by Pa.R.C.P. 1026. Responsive pleadings were not, however, filed; hence, on October 21, 1985 plaintiff mailed a notice of default to defendant and his insurance carrier, advising them that, unless appropriate actions were taken within ten days, a default judgment might be entered. Defendant unexplainably waited until October 24, 1985, well beyond the original twenty day period allowed, to retain counsel to represent him in the matter. Counsel immediately contacted the office of plaintiff's counsel and secured an extension, of unspecified but reasonable duration, to avoid entry of a default judgment. Plaintiff's counsel later confirmed this extension by letter dated November 12, 1985, stating that the extension would expire on December 4, 1985. On December 6, 1985, inasmuch as no answer to plaintiff's

[ 518 Pa. Page 498]

    complaint had yet been filed, a default judgment was entered. Soon after receiving notice that the judgment had been entered, defense counsel filed an answer to plaintiff's complaint, and, on December 16, 1985, filed a petition to open the judgment. After consideration of the merits, the Court of Common Pleas granted the petition.

The sole issue to be addressed in the present appeal is whether the court below committed an abuse of discretion in granting the petition to open judgment. See Kennedy v. Black, 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981) ("[A] petition to open a default judgment is within the sound discretion of the trial court; further, a reviewing court will not reverse a trial court's decision on the matter unless there was an error of law or a manifest abuse of discretion."). We believe that the trial court relied upon a plainly inadequate basis in opening the instant judgment, and, thus, that the default judgment must be reinstated.

It is well established that, before a default judgment can properly be opened, the moving party must show that 1.) the petition to open was promptly filed, 2.) a meritorious defense to the underlying claim exists, and 3.) the failure to act on the original complaint can be reasonably excused. Id.; Schultz v. Erie Insurance Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984); Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 583, 442 A.2d 689, 691 (1982). The latter element, requiring a justifiable explanation for having failed to respond in a timely fashion to the original complaint, see Schultz, 505 Pa. at 93, 477 A.2d at 472, was not fulfilled under the facts of this case. See also Nemeth, 497 Pa. at 585, 442 A.2d at 691 (sufficient justification required for failure to respond to original complaint); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (reasonable explanation or excuse required).

The only explanation offered by defense counsel for not having filed an answer to the complaint before entry of a default judgment was that, through inadvertence of an associate in his office, the letter from plaintiff's counsel ...


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