Toplovich v. Spitman

• Decision Date: 29 March 1976
• Citation: 361 A.2d 425,239 Pa.Super. 327
• Parties: Paul E. TOPLOVICH, Jr. and Patricia Ann Toplovich v. Walter C. SPITMAN and Patricia A. Spitman, Appellants.
• Court: Pennsylvania Superior Court

Page 425

361 A.2d 425

239 Pa.Super. 327

Paul E. TOPLOVICH, Jr. and Patricia Ann Toplovich v. Walter C. SPITMAN and Patricia A. Spitman, Appellants.

Superior Court of Pennsylvania.

March 29, 1976.

Michael E. Dunlavey, Orton & Nygaard, North East, for appellant.

Douglas Rozelle, Corry, for appellee.

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

VAN der VOORT, Judge.

Appeal is taken to this Court from an Order of the lower court denying appellant's petition to open judgment. The record shows appellee's complaint in equity was filed on May 8, 1975 and service thereof made on May 9, 1975. On May 28, 1975, appellants' counsel asked for and received from counsel for appellee a one week's extension of time in order to answer the complaint. On May 29, 1975, appellants' counsel entered his appearance. By counsels' agreement, appellants' answer became due on June 6, 1975, a Friday. On the following Tuesday, June 10, 1975, appellees filed a praecipe for judgment, which judgment was entered on their behalf. The record reflects that appellants' answer was filed on June 12, 1975. On June 19, 1975, appellants filed a petition to open the judgment. This relief was denied by Order of July 9, 1975.

Preliminarily we deny appellants' motion before our Court to quash appellees' brief, finding that the record is sufficiently complete for our purposes. ¹

'As we have had occasion to reiterate several times recently, a petition to open a judgment is a matter of judicial discretion, is an appeal to the court's equitable powers, and is to be exercised only when three factors coalesce:

(1) The petition has been promtply filed;

(2) A meritorious defense can be shown (footnote omitted);

(3) the failure to appear can be excused.' Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130--131 (1971). Our considerations as to the presence of absence of these requirements is tempered by our application of equitable principles, for we sit as would a chancellor in equity to determine how best justice can be served. Kanai v. Sowa, 109 Pa.Super. 426, 167 A. 429 (1933) and Oppenheimer v. Shapiro, 163 Pa.Super. 185, 60 A.2d 337 (1948). Our deliberations of an equitable nature will be addressed to a weighing of the prejudices inflicted upon the opposing parties by whatever inaction of counsel occasioned the right of the seccessful party to obtain judgment. See Borjes v. Wich, 171 Pa.Super. 505, 90 A.2d 288 (1952).

It is clear that appellants have met the first two requirements. Filing the petition to open judgment nine days following entry of judgment, and placing it for argument on July 9, 1975, is prompt action. Appellants have posited a meritorious defense by way of laches, fraud, mistake, and lack of clean hands. We view these as defenses which, if proved, could defeat appellees' claim for relief based upon an alleged breach of a clause in a deed (whereunder certain rights and entitlements were eserved to appellees) causing appellees to lose these rights.

We are particularly troubled by appellants' treatment of the third requirement, viz: excuse for the delay. Appellants' counsel proposes that it is solely due to his careless failure to sign the answer and forward it timely by mail to the Warren County Prothonotary that appellants' answer was not filed within the agreed period of extension. We are cognizant of the added burdens upon attorneys who practice some distance from the site where their papers must be filed, but it must be their duty to compensate for this when dealing with the mails. It is evading the point now to argue that the responsive pleading was in the mail on June 10, 1975, the day on which appellees obtained judgment, and to claim that action was therefore prior to the...