Triffin v. Thomas

• Decision Date: 01 July 1983
• Citation: 316 Pa.Super. 273,462 A.2d 1346
• Parties: Robert J. TRIFFIN, T/A General Funding, Appellant, v. Anita THOMAS, Ind. and T/A Anita Thomas, First Lady of Mirrors.
• Court: Pennsylvania Superior Court

Page 1346

462 A.2d 1346

316 Pa.Super. 273

Robert J. TRIFFIN, T/A General Funding, Appellant, v. Anita THOMAS, Ind. and T/A Anita Thomas, First Lady of Mirrors.

Superior Court of Pennsylvania.

Argued March 1, 1982.

Filed July 1, 1983.

Robert J. Triffin, Philadelphia, appellant, in propria persona.

Sheldon C. Jelin, Philadelphia, for appellee.

Before WIEAND, BECK and HOFFMAN, JJ.

WIEAND, J.: ^*

The present appeal was taken from an order opening a default judgment. Because the order was based solely on petition and answer, without evidence from which a determination of disputed factual issues could be made, we reverse and remand for further proceedings.

It is now well settled that when a respondent effectively denies material allegations in a petition to open judgment, the petitioner must support his position with evidence. Bell v. Jefferson Republican Club, 304 Pa.Super. 157, ---, 450 A.2d 149, 151 (1982). Accord: Philadelphia City Employees Federal Credit Union v. Bryant, --- Pa.Super. ---, ---, 456 A.2d 1060, 1062 (1983); Hutchings v. Trent, 304 Pa.Super. 376, ---, 450 A.2d 729, 731 (1982); Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 135, 403 A.2d 577, 580 (1979); Zinck v. Smashy's Auto Salvage, Inc., 250 Pa.Super. 553, 556, 378 A.2d 1287, 1288 (1977); Johnson v. Leffring, 211 Pa.Super. 84, 87, 235 A.2d 435, 436-437 (1967). The procedure for establishing such evidence is contained in Pa.R.C.P. 209. ¹ Pursuant to that rule "the petitioner must either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer. Or, the respondent may, after fifteen days, in order to expedite the proceedings, obtain a rule to show cause why the petitioner should not take depositions or order the cause for argument on the petition and answer." Bell v. Jefferson Republican Club, supra at ---, 450 A.2d at 151 (citations omitted). Accord: Paules v. Sminkey, 290 Pa.Super. 223, 227, 434 A.2d 724, 726 (1981); Duffy v. Gerst, 286 Pa.Super. 523, 538, 429 A.2d 645, 653 (1981); Shainline v. Alberti Builders, Inc., supra at 137, 403 A.2d at 580-581; American Corporation v. Cascerceri, 255 Pa.Super. 574, 580 n. 6, 389 A.2d 126, 129 n. 6 (1978); Zinck v. Smashy's Auto Salvage, Inc., supra at 556-557, 378 A.2d at 1288; Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., 248 Pa.Super. 176, 181-182, 374 A.2d 1376, 1378-1379 (1977); Maurice Goldstein Company v. Margolin, 248 Pa.Super. 162, 166-167, 374 A.2d 1369, 1371 (1977).

Robert J. Triffin, t/a General Funding, filed a complaint containing averments that he had purchased from Inter County Publishing Co., t/a "The Leader", a claim against Anita Thomas, t/a Anita Thomas First Lady of Mirrors, for newspaper advertising in the amount of $576 plus interest at the rate of 1 1/2 percent per month. The complaint was served upon the defendant, appellee herein, on February 19, 1981. On March 25, 1981, the plaintiff, appellant herein, caused a default judgment to be entered against the defendant-appellee for want of an answer. ² On April 27, 1981, appellee filed a petition to open the judgment, in which it was alleged, inter alia, that the default had occurred because of a late delivery of the complaint to appellee's attorney and that appellee had "never ordered the advertising." The petition also contained an averment that appellant had failed to register his fictitious name ³ and that interest at the rate of 18 percent per annum was usurious. On May 18, 1981, appellant filed a "Reply and New Matter," in which he denied the allegation that the advertising had not been ordered and averred that "after reasonable investigation, plaintiff is without knowledge or information sufficient to form a belief as to the truth" thereof. For the same reason he denied that the interest included in the default judgment was usurious. In "New Matter," he contended that appellee had failed to explain adequately the default. Both parties filed memoranda of law, and on July 8, 1981, without receiving evidence via depositions or in any other manner, the court granted appellee's petition and opened the judgment.

A petition to open a default judgment in assumpsit is an appeal to the equitable power of the court. Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130 (1971); Penneys v. Richard Kastner Company, Inc., 297 Pa.Super. 167, 169, 443 A.2d 353, 354 (1982); Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super. 353, 356, 434 A.2d 790, 791 (1981). As a general rule, this power will not be exercised unless three factors coalesce: (1) the petition must have been promptly filed; (2) a meritorious defense must exist; and (3) there must be a reasonable excuse for the failure to file a timely answer. Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 583, 442 A.2d 689, 691 (1982); Kennedy v. Frank L. Black Jr., Inc., 492 Pa. 397, 401, 424 A.2d 1250, 1252 (1981); Balk v. Ford Motor Co., supra at 140 & n. 3, 285 A.2d at 130-131 & n. 3; Philadelphia City Employees Federal Credit Union v. Bryant, supra at ---, 456 A.2d at 1062; Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 334 & n. 1, 446 A.2d 641, 642 & n. 1 (1982); American Vending Company, Inc. v. Brewington, 289 Pa.Super. 25, 28, 432 A.2d 1032, 1034 (1981); Shainline v. Alberti Builders, Inc., supra at 133-134, 403 A.2d at 579. An appellate court will not reverse a trial court's ruling, whether opening or refusing to open a default judgment, unless it is shown that the court committed an error of law or manifestly abused its discretion. Kennedy v. Frank L. Black Jr., Inc., supra at 401, 424 A.2d at 1252; Balk v. Ford Motor Co., supra at 140, 285 A.2d at 131; Philadelphia City Employees Federal Credit Union v. Bryant, supra at ---, 456 A.2d at 1062; Penneys v. Richard Kastner Company, Inc., supra at 169, 443 A.2d at 354; Carson Pirie Scott & Co. v. Phillips, supra at 356, 434 A.2d at 791; Duffy v. Gerst, supra at 532-533, 429 A.2d at 650; Cruse v. Woods, 279 Pa.Super. 242, 245, 420 A.2d 1123, 1124 (1980); Shainline v. Alberti Builders, Inc., supra at 134, 403 A.2d at 579.

The petition to open the default judgment in this case was filed on April 27, 1981, and appellant concedes that the requirement of promptness was met. However, appellant is correct when he argues that the record in its present state does not permit a determination that appellee's default should be excused. The petition contains averments that the defendant-appellee was informed erroneously regarding the exact date of service and that the answer to the complaint was timely prepared but inadvertently delivered late to the prothonotary for filing by counsel. These averments have been effectively denied by appellant. After appellant's answer to the petition was filed, neither party proceeded under Pa.R.C.P. 209 to provide the court with the facts required to decide the petition to open. The failure to take depositions did not automatically trigger Rule 209 and operate as an admission by appellee of the averments of fact contained in the answer. Such facts will be deemed admitted only when the petitioner has ordered the cause for argument on the pleadings or when the petitioner has ignored a rule absolute to move for depositions. Philadelphia City Employees Federal Credit Union v. Bryant, supra at ---, 456 A.2d at 1063; Hutchings v. Trent, supra at ---, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra at ---, 450 A.2d at 151; Shainline v. Alberti Builders, Inc., supra at 137 n. 4, 403 A.2d at 580 n. 4. Here, as in Instapak Corporation v. S. Weisbrod Lamp & Shade Company, Inc., supra, "appellee as the moving party did not proceed by rule or by agreement of counsel to take depositions; neither did appellee order the cause for argument on petition and answer; neither did appellant as respondent take a rule on appellee to show cause why it should not either proceed to take depositions or order the cause for argument on petition and answer. Instead, with only the petition and the answer, the lower court granted the petition. That decision was premature." Id. at 181-182, 374 A.2d at 1379 (footnote omitted) (emphasis supplied). It could not properly act until it was in a position to determine the disputed facts. See: Hutchings v. Trent, supra at ---, 450 A.2d at 731; Bell v. Jefferson Republican Club, supra at ---, 450 A.2d at 151-152; Duffy v. Gerst, supra at 538-539, 429 A.2d at 653-654; J.C.S. v. D.M.S., 277 Pa.Super. 612, 622, 419 A.2d 1319, 1324 (1980); Shainline v. Alberti Builders, Inc., supra at 137-138, 403 A.2d at 580-581; America Corporation v. Cascerceri, supra at 580 n. 6, 389 A.2d at 129 n. 6; Zinck v. Smashy's Auto Salvage, Inc., supra at 556-557, 378 A.2d at 1288; Maurice Goldstein Company v. Margolin, supra at 166-167, 374 A.2d at 1371. Rule 209 placed no time limits on either party to proceed, and until either party took action that would enable the court to make a factual determination, or until some other force spurred matters along, ⁴ the court could not properly act on appellee's petition.

The averment in the petition to open that appellee did not order the newspaper advertising, if correct, is a complete defense to appellant's claim for the price thereof. It is fundamental that for an agreement to exist there must be an offer and acceptance which signifies that there has been a "meeting of the minds." Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa.Super. 436, 439-440, 406 A.2d 1120, 1122 (1979). Without such assent there can be no enforceable agreement. Rissmiller v. Evangelical Lutheran Congregation, 268 Pa. 41, 110 A. 740 (1920); Courier Times, Inc. v. United Feature Syndicate, Inc., 300 Pa.Super. 40, 54, 445 A.2d 1288, 1295 (1982); Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, supra. Thus, it is inconsequential that appellant's assignor...