BEAM v. Carletti

Opinion by Jacobs, J., This is an appeal from the order of the court below opening the default judgment taken by appellants. The issue is whether the lower court abused its discretion in making that order. We find that it did, and reverse. The present action was commenced on September 28, 1972, when appellants filed a complaint in trespass. The complaint, which notified the defendant to plead within 20 days from service or risk a default judgment, was properly served on defendant-appellee on October 5, 1972. No pleading from defendant was forthcoming and on January 26, 1973, appellants filed a praecipe for entry of judgment by default. By a letter dated January 25,1973, appellants’ counsel notified defendant that a judgment by default had been entered against him. In a February 1, 1973, letter, defendant’s counsel informed appellants’ counsel that he would like to discuss settlement of the case or petition to open judg *170 ment. Appellants’ counsel made no reply to this letter. On July 18, 1973, appellants’ counsel wrote to defendant’s counsel stating that lie bad tbe matter listed for assessment of damages, but was still willing to discuss and possibly settle tbe issue of damages. In another letter on July 23, 1973, appellants’ counsel notified defendant’s counsel that a bearing for assessment of damages was to be held on August 22, 1973. On August 10, 1973, appellants’ counsel also notified tbe defendant of tbe August 22nd bearing. Because defendant’s counsel could not attend tbe bearing on August 22nd, a continuance was granted. Finally, on August 29, 1973, defendant filed a petition to open tbe judgment. A bearing on that petition was held on October 9, 1973, and tbe lower court, on December 11, 1973, opened tbe judgment. This appeal followed. It is a well-settled rule that a default judgment will not be opened by tbe court unless tbe defendant has satisfied each of tbe following requirements: a petition to open a default judgment has been promptly filed; tbe petition satisfactorily explains tbe defendant’s failure to act prior to entry of tbe default judgment; and tbe petition sets forth a meritorious defense. McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973). However, no meritorious defense need be set forth to open a default judgment in a trespass action. Kilgallen v. Kutna, 226 Pa. Superior Ct. 323, 310 A.2d 396 (1973). Since tbe present case is an action in trespass, tbe defendant was required only to explain bis default and any delay in moving to open tbe judgment. Id. If these prerequisites have not been satisfied, the lower court has abused its discretion in opening tbe default judgment. McCoy v. Public Acceptance Corp., supra. To resolve this case, we need only review tbe requirement that a defendant must explain his delay in moving to open tbe default judgment. Admittedly, tbe *171 defendant in this case became aware of the default judgment against him the last week of January 1973, but no petition to open that judgment was filed until 7 months later on August 29, 1973. To explain this delay, defendant’s counsel in the petition to open averred that he immediately (in February of 1973) communicated with counsel for appellants and requested a discussion on the merits of the case, but that no reply was received until July 25, 1973, when appellants’ counsel informed him that he would only discuss the amount of damages. During the hearing on the petition to open, defendant’s counsel argued that appellants were under a duty to respond to his February 1973 communication and the delay in filing the petition to open was due to appellants’ failure to reply. 1 A similar argument was made in Zellman v. Fickenscher, 452 Pa. 596, 307 A.2d 837 (1973), where the defendants, soon after judgment had been entered against them, communicated with plaintiffs attorney by letter and sought to have him enter into a stipulation to open judgment. No response was forthcoming, and almost 8 months later defendants petitioned to open the judgment. The Court found this excuse for the delay to be unconvincing and stated that “the mere sending of a letter without any response from the other side certainly does not justify their remaining inactive for nearly eight months and not moving promptly to open the judgment.” Id. at 599-600, 307 A.2d at 839. In the present case, appellants were under no duty to respond to the letter from defendant’s counsel. More *172 over, there are no facts on the record which indicate that appellants sought to lull the defendant into inaction after they had obtained judgment against him. Compare Good v. Sworob, 420 Pa. 485, 218 A.2d 240 (1966). Because the defendant had no reasonable explanation for his failure to promptly file a petition to open, we hold that the lower court erred in opening the judgment. Order reversed. Footnotes [1] In Ms brief, defendant’s counsel appears to have shifted his argument and claims that counsel for the parties on several occasions, between February and July 1973, informally discussed settlement. However, these facts were not averred in the petition to open, introduced at the hearing, or found in any part of the record. Therefore, we cannot consider them or their effect on this case.