450 Pa. 118 | Pa. | 1973
Opinion by
Appellants, Adalbert Sado and Florence M. Sado, his wife, had engaged a contractor, one Papiro, to accomplish certain improvements on their residential property. A dispute then arose between appellants and appellee, Hannah Carney, a next-door neighbor, with respect to an alleged encroachment and channeling of storm water. The dispute culminated in a complaint in equity, filed by appellee against appellants, seeking injunctive and other relief. The complaint was filed on October 21, 1970, and proper service was made on appellants on that date.
Mrs. Sado, apparently believing that any problems were the fault of the contractor, contacted him and he, in turn, contacted Wesley M. Neely, Esquire. Neely reviewed the complaint, prepared an answer and, to
Thereafter, on November 18, 1970, judgment for want of an answer was entered against appellants and they were so informed by registered mail on that date. Again, they took no action, and on January 15, 1971, the court below entered a final decree in response to appellee’s motion. It was not until February 3, 1971, that present counsel for appellants entered his appearance and filed a petition to open the final decree and allow appellants into a defense. Appellants have appealed the refusal .of the court below to open the final decree.
It has long been the law of Pennsylvania that a petition to open a decree in equity is an appeal to the court’s discretion and that that discretion may properly be exercised to grant such a petition if (1) the petition is promptly filed, (2) a defense is shown to exist on the merits, and (3) the default is reasonably
In their petition to open, appellants allege that they “do not speak, read and understand the English language very well and have difficulty expressing themselves in such language, as a result of which they did not file an Answer to the Plaintiff’s Complaint in Equity.” They further allege that they “were led by plaintiff to believe that the Complaint in Equity was withdrawn by her and the matters alleged therein were settled to the mutual satisfaction of all the parties concerned.” The record in this case not only fails to support those allegations, but directly refutes them. Mrs. Sado’s deposition was taken, and from it it appears that while her husband has difficulty understanding and speaking English and neither reads nor writes English, she is not similarly handicapped. Mrs. Sado was born in the City of Philadelphia and attended school in Philadelphia, albeit only through five grades. She does, however, read and write English and was able to understand the questions posed to her during the deposition and answer them clearly and without apparent difficulty. Moreover, if the deposition of Mr. Neely is credited, as it apparently was by the court below, the import of the proceedings was fully explained to her by a member of the bar, and she was not, as alleged, unaware of the possible consequences of a failure to respond to the complaint. Mrs. Sado’s deposition also indicates clearly that she had no conversations or contacts of any kind with appellee or appellee’s counsel which could have in any way substantiated the allegation that appellants were led by
As in Triolo v. Phila. Coca Cola Bot. Co., supra, “this is not a case where [appellee] lulled [appellants] into a false sense of security [citing cases]. Nor is this a case where [appellee] made a ‘studied attempt’ to obtain a default judgment [citing cases].” Appellants were informed of their position and their failure to act has not been reasonably explained. We need not, nor do we decide whether a defense on the merits was shown or whether appellants acted with sufficient promptness to satisfy the other two requirements of the rule, since we conclude that there has been no reasonable explanation of the default.
Decree affirmed. Each party to bear own costs.