Instapak Corp. v. S. Weisbrod Lamp & Shade Co., Inc.

• Court: Superior Court of Pennsylvania
• Writing for the Court: Before WATKINS; SPAETH; HOFFMAN; PRICE; PRICE; HOFFMAN
• Citation: 248 Pa.Super. 176,374 A.2d 1376
• Parties: INSTAPAK CORPORATION, Appellant, v. S. WEISBROD LAMP & SHADE CO., INC., Appellee.
• Decision Date: 29 June 1977

Page 1376

374 A.2d 1376 248 Pa.Super. 176 INSTAPAK CORPORATION, Appellant,
v.
S. WEISBROD LAMP & SHADE CO., INC., Appellee. Superior Court of Pennsylvania. Argued March 17, 1976.
Decided June 29, 1977.

Page 1377

[248 Pa.Super. 178] Arthur L. Pressman, Philadelphia, for appellant.

Marc R. Gordon, Philadelphia, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.

SPAETH, Judge.

This is an appeal from an order opening a default judgment. We have concluded that in opening the judgment the lower court abused its discretion. Accordingly, we reverse and remand for further proceedings.

On May 23, 1975, appellant commenced the action by filing a complaint in assumpsit. On July 9, the complaint was reinstated. A Sheriff's return of service indicates that a copy of the complaint was served on appellee on July 10. Subsequent returns indicate that appellee was also served on July 17, and July 21. On July 31 appellant took a default judgment. On August 4 appellee served on appellant a copy of a Petition to Open the Default Judgment along with a notice to respond. On August 14 both appellee's petition to open and appellant's answer to the petition were filed. ¹ On September 3, without benefit of argument or further proceedings, the lower court ordered the judgment opened.

Before granting the petition to open the judgment, the lower court was obliged to make three findings: (1) the petition was filed promptly after the judgment; (2) the [248 Pa.Super. 179] petition discloses a meritorious defense; ² and (3) there was a reasonable excuse for the failure to have filed an answer within the prescribed time. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Here there is no dispute that the petition was filed promptly, and that it discloses a meritorious defense (in fact, a counterclaim to the underlying action was alleged in the proposed answer to the complaint attached to the petition). The issue is whether the lower court could find that there was a reasonable excuse for appellee's failure to have filed an answer to appellant's complaint within the prescribed time.

The petition to open, when read in a light favorable to appellee, alleges that appellee was served with the complaint a total of three times; that at the time of the first service appellee's business was closed for vacation; ³ that confusion resulted from the multiple service; and that through its counsel appellee believed that it had twenty days from July 17 ⁴ (the date of the second service) to file an answer, rather than twenty days from July 10. If appellee had proved these allegations, and if the lower court had found on the basis of them that appellee had a reasonable excuse for having failed to file an answer within twenty days of July 10, we should not reverse, for the decision to grant a petition to open a judgment is within the sound discretion of the lower court and will not be reversed absent

Page 1378

a mistake of law or abuse of discretion. Johnson v. Yellow Cab Co. of Philadelphia, 226 Pa.Super. 270, 307 A.2d 423 (1973); Samuel Jacobs Distributors, Inc. v. Conditioned Air., Inc., 223 Pa.Super. 466, 301 A.2d 907 (1973); Moyer v. [248 Pa.Super. 180] Americana Mobile Homes, Inc., --- Pa.Super. ---, 368 A.2d 802 (filed Dec. 15, 1976). Cf. Lewis v. Reid, --- Pa.Super. ---, 366 A.2d 923 (1976). The difficulty is, however, that appellee did not prove its allegations.

As has been mentioned, appellant filed an answer to the petition to open. In the answer appellant denied that appellee's counsel had had any mistaken belief about the date by which an answer had to be filed. According to the answer the following occurred. On July 16 appellee's counsel telephoned the office of appellant's counsel to request an extension of time in which to respond to the complaint. Appellant's counsel was out of town but the call was taken by a partner of appellant's counsel. The partner relayed the request for an extension to appellant's counsel, who denied it. These allegations were supported in appellant's answer by (1) a copy of a letter from appellant's counsel's partner to appellee's counsel, dated July 17, which purported to confirm the results of the alleged telephone conversations, and (2) an affidavit of the partner.

Appellant's allegations thus tend to show that appellee's counsel did not have any mistaken belief about the date by which an answer had to be filed. If appellee's counsel initiated negotiations on July 16, regarding an extension of time, that fact would be inconsistent with the position taken by appellee in its petition to open, that it was not aware of service until July 17.

Therefore, at the time the lower court granted the petition to open the judgment it had before it pleadings that raised a material issue of fact was appellee aware of the July 10, service and its consequent duty to respond within twenty days of that date? We are not informed by the lower court whether it accepted appellant's or appellee's version of the facts on that issue. ⁵ The important point, [248 Pa.Super. 181] however, is that the lower court was not in a position to accept one version in preference to the other.

Pa.R.C.P. 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event...