230 Pa. Super. 545 | Pa. Super. Ct. | 1974
Opinion by
This is an appeal from an order denying a petition to open a judgment taken by default. For the reasons stated hereinafter, we affirm the order of the court below.
Appellee instituted an action in assumpsit on November 28, 1973 to recover salary and sales commissions which he alleged were earned but unpaid. Service of a properly endorsed complaint was made upon the appellants on November 30, 1973. Thus, the due date of the answer was December 20, 1973.
Appellants filed a petition to open the judgment on January 7, 1974. This petition was subsequently denied by Judge Hirsh in the court below and this appeal followed.
“Snap” judgments taken quickly after the expiration of an answer’s due date are viewed by the courts with disfavor. This view results both from the fact that prejudice to the party taking the judgment can rarely be shown, and from the fact that such action is thought to be contrary to the true purpose of the default judgment.
The petition to open a default judgment is an appeal to the equitable discretion of the court which the court may exercise only when three factors coalesce: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.” McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973).
The appellants contend that all three requirements were met and that the lower court therefore abused its discretion in not opening the judgment. The lower court, however, found that the appellants satisfied only the first requirement and refused to open the judgment.
Appellant Madison argues that its failure to file a timely response was reasonably excused. Madison alleges that an answer was prepared which was to be verified by Madison’s president on December 21, 1973, and then filed. However, due to inclement weather he was unable to travel to Philadelphia on that day to
Judge Hirsh found that “Defendant Madison presents neither deposition nor affidavit to substantiate this bare allegation [inability to verify due to inclement weather and inability to contact appellee’s counsel] which, taken on its merits, simply does not impress this Court.” Memorandum Opinion at 3. In meeting the requirement of showing a reasonable excuse for its failure to file a timely response “the petitioner must support his position with clear and sufficient proof . . . .” Retzbach v. Berman Leasing Co., 222 Pa. Superior Ct. 523, 526, 294 A.2d 917, 918 (1972) (concurring opinion). The lower court reasonably found that Madison failed to offer such support. Additionally, even if it had filed on December 21, 1973 the answer would not have been timely.
Moreover, this Court cannot help but note inconsistencies in Madison’s position. It grounds its petition on the argument that but for the inclement weather the answer would have been verified and filed, and notes its good faith and dispatch (“when the verification is indeed signed on the next succeeding workday” Brief for appellant at 8). The answer presented to
As to appellant Triad, it claims that it intended to file preliminary objections to the complaint contesting the jurisdiction of the court over it, a New Jersey corporation. No explanation of the failure to file timely preliminary objections is offered.
tludge IIiksh also found that the appellants failed to show a meritorious defense. Appellant Triad has never attempted to show any defense other than its preliminary objections to jurisdiction. As noted previously, these were denied by the court. No other defense is even averred. Madison asserts only that “there had been an accord and satisfaction.” It is clear that the petition to open must set forth its defenses “in precise, specific, clear and unmistaken terms,” Ab v. Continental Imports, 220 Pa. Superior Ct. 5, 9, 281 A.2d 646, 648 (1971), and must set forth the facts on which the defense is based. Young v. Mathews Trucking Corp., 383 Pa. 464, 119 A.2d 239 (1956). We cannot say that the lower court abused its discretion in finding that both
This court is reluctant to grant its approval to a snap judgment taken on the twenty-first day. However, we have examined the record to “ascertain whether there are present any equitable considerations in the factual posture of the case,” Kraynick v. Hertz, supra at 111, 277 A.2d at 147, which would permit us to have this cause heard on the merits. We can find none. We find only a record peppered with inconsistencies and a failure to comply with the requirements for obtaining an order to open the judgment.
Because the decision of the court below was authorized by law and supported by the facts, we are unable to find an abuse of discretion on the court’s part.
Order affirmed.
Pa. R.C.P. 1026 states that “[e]very pleading subsequent to the complaint shall be filed within twenty (20) days after service of the preceding pleading----”
The cover letter sent with each of the complaints previously forwarded stated: “I am sending this copy without any prejudice
The prothonotary's stamp shows that the default judgment was entered at 2:51 P.M. on December 21. Mr. Jenkins entered an appearance later that afternoon.
Pa. R.O.P. 1037(b) permits the entry of a default judgment “against the defendant for failure to file within the required time an answer to a complaint...
“ ‘The true purpose of the entry of a default- is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff
Preliminary objections were eventually filed and dismissed by order of tbe court dated February 5, 1974. Eecord at 30(a).