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07/02/97 PETERS TOWNSHIP SANITARY AUTHORITY v.

July 2, 1997

PETERS TOWNSHIP SANITARY AUTHORITY
v.
AMERICAN HOME AND LAND DEVELOPMENT COMPANY AND QUAIL RUN ASSOCIATES AND QUAIL RUN SANITARY CORPORATION, AND WILLIAM K. KERSCHBAUMER; QUAIL RUN SANITARY CORPORATION, APPELLANT



Appealed From No. 96-1367. Common Pleas Court of the County of Washington. Judge TERPUTAC.

Before: Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Emil E. Narick, Senior Judge. Opinion BY Judge Friedman.

The opinion of the court was delivered by: Friedman

OPINION BY JUDGE FRIEDMAN

FILED: July 2, 1997

Quail Run Sanitary Corporation (Quail Run), appeals from the opinion and order of the Court of Common Pleas of Washington County (trial court) denying Quail Run's Petition to Open Default Judgment. We reverse.

Peters Township Sanitary Authority (Peters Township) filed suit against Quail Run on April 10, 1996. When Quail Run failed to respond within twenty days, Peters Township mailed to Quail Run a notice of intention to enter judgment dated May 2, 1996, and filed a praecipe to enter judgment by default on May 14, 1996 at 12:07 p.m.. Quail Run filed preliminary objections to Peters Township's complaint approximately fifteen minutes later; however, unbeknownst to Quail Run, the default judgment had already been entered. On May 17, 1996, Quail Run filed the instant petition to open judgment.

The trial court disagreed with Quail Run's contention that opening the judgment was proper under Rule 237.3 of the Pennsylvania Rules of Civil Procedure, which states:

(a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file.

(b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense.

Pa. R.C.P. No. 237.3. (Emphasis added.) The trial court held that, because Quail Run attached preliminary objections, rather than an answer, to the petition to open, it had not complied with Rule 237.3. Additionally, the trial court implied that Quail Run's preliminary objections did not state a meritorious defense. Accordingly, the trial court denied the petition to open.

On appeal to this court, *fn1 Quail Run first argues that the trial court erred in strictly construing the term "answer" within the text of Rule 237.3, thereby rejecting the filing of a "pleading" in the nature of preliminary objections. According to Quail Run, a standard of liberality, not strictness, should be applied in ruling on a petition to open default judgment. See Pa. R.C.P. No. 126. *fn2 Further, Quail Run contends that examination of the default judgment provisions of Rules 1037 and 237, and their respective Commentary Notes, reveals that the court should accept a "pleading" in the form of preliminary objections with regard to Rule 237.3. The Explanatory Comment regarding Rule 1037 states:

Rule 1037. Judgment Upon Default or Admission. Assessment of Damages.

Subdivision (b) of Rule 1037 provided for the entry of judgment upon praecipe resulting from a default or admission. The rule spoke of failure to file "an answer." This left unclear the effect of filing preliminary objections. This rule is changed to refer to "a pleading," a term which under Rule 1017(a) includes both an answer and preliminary objections. The ...


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