225 Pa. Super. 159 | Pa. Super. Ct. | 1973
Opinion by
Appellant contends that the lower court erred in refusing to open a default judgment entered in favor of the appellee. The appellee, Harry W. Eble, Jr., entered into an automobile insurance contract with the appellant Criterion Insurance Company (hereinafter Criterion) to cover the period from April 24, 1971 to April 24, 1972. On January 15, 1972, the appellee received a notice, dated December 21, 1971, stating that appellee’s insurance was cancelled as of January 13, 1972 for failure to pay a premium. In response to this notice, the appellee sent the appellant a check for the unpaid premium on January 21st. On February 5,1972, Eble was involved in an automobile accident which he reported to Criterion’s Jenkintown office two or three days later. Despite this notification, appellant cashed the late premium check at its Washington, D. C. headquarters on February 11, 1972. Approximately one month later, the appellant notified the appellee that his policy had been cancelled on January 13, that a new policy would not be issued, and that appellant denied coverage for the accident.
The deposition of appellant’s attorney reveals that counsel possessed the information necessary to file the answer approximately twenty days prior to the entry of the default judgment. Indeed, Criterion’s counsel sent the answer to the Jenkintown office on June 29th and requested verification by the proper company official. When the papers were not returned by July 5th, counsel contacted appellant and learned that the papers
“[A] petition to open a judgment is a matter of judicial discretion, is an appeal to the court’s equitable powers, and is to be exercised only when three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; (3) the failure to appear [or failure to answer a complaint in the prescribed time] can be excused. A lower court’s ruling opening or refusing to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion.” Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A. 2d 128 (1971) (footnote and citations omitted). In the instant appeal, the court below concluded that the third requirement had not been met. Since we agree with that determination, there is no need to decide whether or not the first two requirements were met.
In essence, defense counsel offered two reasons to justify the delay in filing the answer: (1) He did not expect appellee’s counsel to literally comply with the deadline; (2) Criterion had to examine voluminous records before being able to discover the information needed to answer the complaint. Neither of these is a sufficient reason to justify opening a default judgment. Although Eble’s counsel was courteous and gave Criterion an extended period of time in which to answer the complaint, the appellee did not waive his right to enter a default judgment. “ ‘The exercise of generosity does not create a binding obligation for its continuance.’ ” Triolo v. Coca Cola Bottling Company, 440 Pa.
Accordingly, the lower court’s order must be affirmed.
Normally, a defendant has twenty days to answer such a pleading. Pa. Buies of Civil Procedure — Buie 1026.