Ashbourne Country Club v. Cherry Steel Corp.

• Citation: 323 A.2d 231,227 Pa.Super. 433
• Parties: ASHBOURNE COUNTRY CLUB, Appellant, v. CHERRY STEEL CORPORATION, Appellee.
• Decision Date: 03 April 1974
• Court: Superior Court of Pennsylvania

Page 231

323 A.2d 231

227 Pa.Super. 433

ASHBOURNE COUNTRY CLUB, Appellant, v. CHERRY STEEL CORPORATION, Appellee.

Superior Court of Pennsylvania.

April 3, 1974.

Petition for Allowance of Appeal Denied Sept. 20, 1974.

Gary Green, Philadelphia, with him William G. Klenk, II, and Sidkoff, Pincus, Greenberg & Golden, Philadelphia, for appellant.

Robert C. Fernandez, with him Anthony J. Scirica, and McCrory, Scirica, Wentz & Fernandez, Norristown, for appellee.

Before WRIGHT, President Judge and WATKINS, JACOBS, HOFFMAN, CERCONE and SPAETH, JJ.

WATKINS, President Judge.

This is an appeal from an order of the Court of Common Pleas of Montgomery County from the denial of a petition to open a default judgment.

The judgment in question was entered by default in favor of the appellee, Cherry Steel Corporation, and against the appellant, Ashbourne Country Club, in the amount of $24,927.91. It was entered on May 5, 1972. The appellant had entered into a contract with Structures International, Inc. for the construction of an indoor tennis facility. Structures had entered into a contract with the appellee whereby it became a subcontractor for a part of the job. No price was agreed upon under the contract. Appellee performed the work under the contract and was not paid by the contractor or the appellant because they alleged that the appellee's work was not performed according to specifications. An outside firm, Pittsburgh Testing Laboratories, was hired to determine if appellee's material met specifications and they determined they did not.

The appellee filed an intention to file a mechanic's lien on both parties. The owner and the contractor agreed between themselves that the contractor's lawyers would defend the action. Appellee filed a mechanic's lien and complaint naming only the appellant as a defendant. On the 21st day after the filing of the complaint, appellee entered judgment by default against the appellant because of its failure to file responsive pleadings. Twelve days later, appellant filed its petition to open. The court below after hearing denied the petition to open and this appeal followed.

The question before us is whether the court below abused its discretion in denying the petition to open the default judgment. On appeal, the decision of the lower court in opening or refusing such a motion will be reversed only when an abuse of discretion exists. Westinghouse Credit Corporation v. Wenzel, 223 Pa.Super. 87, 289 A.2d 759 (1972).

The requirements for opening a default judgment are well established. The petition to open the judgment must be timely filed, there must be a reasonable excuse or explanation as to why the defendant did not answer the complaint, and a defense on the merits must be shown. Spilove v. Cross Transportation, 223 Pa.Super. 143, 297 A.2d 155 (1972).

The appellee admits that the first requirement was met by the appellant in that the petition to open was timely filed. The appellant answers and explains its failure to file in time by showing that it and the general contractor who were both served with the intention to file the...