Opinion by
This is an appeal from the order of the Court of Common Pleas of Potter County opening a judgment entered by default in fаvor of Westinghouse Credit Corporation, the plaintiff-appellant, and against Gilbert Wenzel and Richard Wenzel, individually, trаding and doing business as Gilbert Wenzel Company, the defendants-appellees.
The plaintiff filed a Writ of Replevin with Bond on Dеcember 16, 1969, for certain household appliances delivered to the defendant on a floor plan for whiсh they were not paid. Appliances in the total value of $1,-762.75 were seized under the Writ and delivered to the plaintiff leaving a balance alleged to be due of $1,-523.50. The balance of the appliances of that value werе not found on the premises which was an alleged *89 violation of the floor plan agreement between the parties.
The plaintiff then filed a complaint on January 5, 1970, demanding payment of $1,523.50 for appliances not replevined and interest of $157.72 plus costs. Preliminary objections were filed on behalf оf the defendant on January 16, 1970 and dismissed on July 8, 1970, Avith the right to the defendant to file new objections Avhich were dismissed on May 25, 1971, Avith the direсtion to the defendants to file an answer within twenty (20) days.
Before the twenty (20) days expired, defendant’s attorney requested an additional ten (10) days to file an answer which was granted. More than a month after the time plus the extension had expirеd, the plaintiff entered judgment for default of an answer on August 3, 1971, and filed a Writ of Execution and also Attachment Execution оn a bank account. Defendant filed a petition to open judgment on August 7, 1971, and after hearing, the court below opened the judgment and this appeal followed.
The general rule is that one who petitions to open a defаult judgment must act promptly and aver a meritorious defense. The action of the court below will not be reversed unlеss a clear abuse of discretion appears or an en*or of law is committed.
Alliance Discount Corp. v. Shaw,
As was held in Triolo, supra, at page 167: “A petition to open a judgment is an appeal to the court’s discretiоn and this 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 explained or excused.” In Triolo, the judgment was entered when answеrs to interrogatories were not filed twenty (20) days after the due date specified in the order of the court below and almost four (4) months after the date the answers were originally due. In Farrell, supra, it was held that the defense was of doubtful validity and reversed the order of the court below opening judgment. In Ab, supra, and Seltzer, supra, this Court in both cases reversed the order opening judgment below because of dilatory conduct on the part of the defendant Avithout proper explanation оr excuse and the failure to set forth meritorious defenses. In the Ab case, judgment was entered almost six (6) months after the answer Avas due, while in Seltzer, there Avas a seven (7) month delay in the filing of answers to interrogatories.
What we said in
Ab,
supra, is especially applicable in the instant case: “It would have been good practice, especially under the circumstanсes in this case, if in fact a meritorious defense existed, to have attached an answer setting it forth in the petition tо open, but although he prepared the petition to open he never prepared an answer.” Seе,
Britton v. Continental Mining & Smelting,
The delay of counsel in this case where the only explanation seems to be inadvertence points up thе prob *91 lem of the courts in the face of public criticism of the legal profession and the court for inordinate delay.
This case to collect a debt due under a contract began on September 16, 1969, and falls well within the publiс criticism of legal delays. At the hearing on the preliminary objections, a case was also heard in which National Sales Company, Inc., Eochester, New York, was plaintiff with the same defendant. Eiehard Wenzel claimed in the hearing оf the one case that Gilbert Wenzel was the owner involved in the appliance business while Gilbert Wenzel in the other ease claimed Eiehard Wenzel was the owner of the appliance business. This impossible position was never еxplained to the court and the preliminary objections were very properly dismissed.
There was never any denial of the amount due on the floor plan, but at the hearing it was indicated that the defendant claimed certain credits for failure of warranties. The plaintiff contends that if such credits are due they are due from the service comрany with which the plaintiff dealt and that even if the credits are against the plaintiff such a claim is not a defense, but a counterclaim which was never asserted either in the petition to open or at the hearing. So, it seems cleаr that meritorious defense was not set forth in precise, specific, clear and unmistaken terms as required by the law.
Young v. Mathews Trucking Company,
The defendant failed to explain his delay in filing the answer except that if was inadvertent and that he did not think counsel would enter judgment. In
Walters v. Harleysville Mutual Casualty Co.,
The order of the Court of Common Pleas opening the default judgment is reversed.