60 A.2d 337 | Pa. Super. Ct. | 1948
Submitted April 16, 1948. Morton A. Oppenheimer, Herman L. Wexler and Ruth M. Oppenheimer, co-partners, trading as A.E. Oppenheimer Bro., appeal from an order making absolute a rule to open judgment contending that no depositions were taken regarding an issue of fact raised by the petition and answer.
Appellants, on November 5, 1945, filed their statement of claim in assumpsit against Harold Shapiro, appellee, claiming $2,202.00 as damages for breach of an agreement for the sale of certain merchandise. On December 21, 1945, the court made absolute a rule to require appellants to file a more specific statement of claim within fifteen days. No such statement was filed as directed and 498 days thereafter, to wit, on May 3, 1947, appellee filed a petition for a rule to show cause why a judgment of non pros should not be entered. Upon request of counsel for appellants, appellee agreed that his rule for non pros be discharged and appellants be permitted to file a more specific statement, which was done on May 21, 1947. On July 15, 1947, appellants entered judgment against appellee for want of an answer and on July 18, 1947, issued execution thereon. Appellee filed a petition to open the default judgment on July 22, 1947, to which was attached, as an exhibit, an answer to the merits of appellants' claim. Three days later *187 appellants answered the petition to open. The court made absolute the rule to open judgment on August 27, 1947, on the petition and answer without aid of depositions. This appeal followed.
When a responsive answer is filed and no depositions are takenor admissions made, it has been held error, under certain circumstances, to open a judgment: Hamilton v. Sechrist,
Appellants by their answer have admitted that they were required to file a more specific statement of claim within fifteen days; that they did not file their statement until almost a year and a half later; that appellants requested appellee to withdraw his rule for judgment of non pros because of the inadvertence of appellants' attorney; that such forbearance and indulgence were forthcoming because of the urgent pleas of appellants; and that prior to entry of the default judgment by the appellants they were advised that opposing counsel was away on vacation and would not return until the end of July.1 The only material averment denied by the appellants in their answer is that there was an agreement to extend the time for filing the affidavit of defense.
An order making absolute a rule to open a judgment entered by default and to let in a defense will be reversed on appeal only where there has been a clear and manifest abuse of discretion by the court below: Berkowitz *188 v. Kass,
We can readily understand how and why the court below, confronted with appellee's delay, working no prejudice, and the absence of fair reciprocation of professional courtesy on the part of appellants' counsel, was conscionably moved to open the default judgment in aid of substantial justice. Cf. Pinsky v.Master,
Order affirmed.