Opinion by
Appellants contend that the lower court abused its discretion in refusing to open a judgment entered by default in favor of thе plaintiffs, Dr. and Mrs. Lawrence Alexander. We agree and, therefore, reverse.
On April 10, 1974, the plaintiffs filed a complaint in assumpsit and trespass against appellant-defendants Jesray Construction Company, Executive Park Homes, Inc., and Jessе Gutman, individually, alleging that defendants failed to comply with certain agreements relative to the construction of plaintiffs’ home. Plaintiffs further alleged that defendant Gutman fraudulently induced them to make settlement prior to the completion of the construction of their home. The complaint was duly served upon defendants on May 7, 1974. On May 28, 1974, the attorney for the defendants, Lawrence F. Flick, Esq. requested and received from plaintiffs’ counsel, Allan Dabrow, Esq., a thirty-day extension of time in which to filе an answer. No answer, however, was filed within the thirty-day period.
On July 12, 1974, at 9:27 a.m. plaintiffs’ counsel caused a default judgment to be entered against defendants for failure to enter an appearance or file an answer. At 4:28 p.m. on the very same day, defendants’ answer was filed. Five days later defendants filed a petition to open judgment. After plaintiffs filed their answer to the petition, and depositions were taken, the lower court dismissed the petition to open judgment. This appeal followed.
It is fundamental that “a petition to open a default judgment is addressed to the lower court’s equitable pоwers and is a matter of judicial discretion.” Hersch v. Clapper,
A default judgment should be opened when the petitioner has satisfied thе following three requirements: (1) the petition has been promptly filed; (2) the petitioner has offered a reasonable explanation for his failure to go timely forward with the action; and (3) the petition has set forth a meritorious defense. Hersch v. Clapper, supra; Spilove v. Cross Trans., Inc.,
In thе case at bar, the plaintiffs concede that defendants have satisfied the first requirement since the petition to оpen was filed five days after the taking of the default judgment. The plaintiffs contend, however, that defendants have not met the other two criteria for opening a judgment, namely, a reasonable explanation for the default and the demonstration of a meritorious defense. We conclude otherwise.
As previously noted, defendants’ counsel, Mr. Flick, requestеd and received a thirty-day extension of time from plaintiffs’ counsel, Mr. Dabrow, on May 28, 1974. It is at this point that the facts fall into disputе. Depositions were taken of both Mr. Flick and Mr. Dabrow. Mr. Flick stated that on July 8, 1974, he telephoned Mr. Dabrow and informed him that he was awaiting an affidavit for the answer and tfiat it would be filed no later than July 12, 1974. According to Mr. Flick, Mr. Dabrow consented to this additionаl extension of time. Mr. Dabrow, on the other hand, offered a different explanation of the events that transpired betwеen May 28, 1974, and July 12, 1974. Mr. Dabrow stated that he spoke to Mr. Flick on July 1, 1974, and was advised that the answer “was filed or would be filed that day.” Mr. Dabrow denied that he ever spoke to Mr. Flick on July 8, let alone granted him an additional extension of time.
The final element that must be established is that there exists a meritorious defense to the plaintiffs’ cause of action. As previously noted, the plaintiffs’ complaint is based both in assumpsit and trespass. In essence, the complaint alleges that defendants did not comply with certain agreements relаting to the construction of the plaintiffs’ home. Plaintiffs allege they complied, but that defendants, contrary to these agreements, have failed to perform certain required work, and have performed other necessary work in an improper and unworkmanlike manner. Plaintiffs further aver that defendant Gutman made false representations in order to induce рlaintiffs to make settlement prior to the completion of the construction of their home. Defendants’ answer to the com
While we do not wish to understate the necessity of setting forth with sufficient specificity facts to constitute a meritoriоus defense, the lower court need not try the case on the merits when considering an equitable petition to open a default judgment. Cherry Steel Corp. v. Ashbourne Country Club,
The order of the court below is reversed and the judgment by default opened.
Van der Voort, J., dissents.
Hoffman, J., absent.
Notes
. In fact, the lower court stated that if it had found that the appellants had a meritorious defense, it would probably have resolved this aspect of the case in the appellants’ favor.