TRIOLO v. PHILA. COCA COLA BOT. CO., 440 Pa. 164 (1970)

270 A.2d 620

Supreme Court of Pennsylvania.April 22, 1970.
October 9, 1970.

Practice — Judgments — Opening — Default reasonably explained — Discretion of court below — Failure to file answers to interrogatories.

1. A petition to open a judgment is an appeal to the court’s discretion, and this discretion may properly be exercised to grant such a petition if: (1) the petition is promptly filed; (2) a defense is shown to exist on the merits; and (3) the default is reasonably explained or excused. [167]

2. In this case, in which it appeared that plaintiff filed interrogatories on defendant and, no answers having been received from defendant, after notice to defendant, plaintiff filed a motion for sanctions; that the court below entered an order directing defendant to file answers within thirty days and further providing that if the answers were not filed within the time prescribed plaintiff could enter judgment against defendant; that, after various communications between counsel for plaintiff and counsel for defendant, no answers having been filed, plaintiff entered judgment against defendant, twenty days after the due date specified in the order of the court below and almost four months after the date the answers were originally due; and that the court below granted defendant’s petition to open the judgment which had alleged basically, that it had been confused by counsel for plaintiff and believed that counsel was not serious about enforcing the order of the court below; it was Held that (a) defendant’s default in the instant case was not “reasonably explained”; and (b) the order of the court below opening the judgment should be reversed.

Before BELL, C. J., JONES, COHEN, EAGEN, O’BRIEN, ROBERTS and POMEROY, JJ.

Appeal, No. 162, Jan. T., 1970, from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov.

Page 165

T., 1968, No. 171, in case of Charles Triolo v. Philadelphia Coca Cola Bottling Co. Order reversed; reargument refused November 12, 1970.

Trespass. Before SLOANE, J.

Petition by defendant to open default judgment granted. Plaintiff appealed.

David Gold, for appellant.

Martin J. Corr, with him Liebert, Harvey, Herting, Short Lavin, for appellee.

OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:

On August 8, 1967, a soda pop bottle allegedly exploded in appellant’s grocery store, causing appellant the loss of his right eye. Suit was instituted against appellee, Philadelphia Coca Cola Bottling Company, on November 8, 1968. On February 14, 1969, appellant filed interrogatories[1] on appellee, the interrogatories noting that an answer was required to be filed within twenty days. See Pa. R. C. P. 4006. On April 11, 1969, appellant, not having yet received appellee’s answers, wrote a letter to counsel for appellee requesting the answers and advising appellee that a motion for

Page 166

sanctions would be filed if the answers were not submitted by April 18. No answers were received and appellant filed his motion on April 24.

On May 20 the court, per Judge BARBIERI, ordered appellee to file answers within thirty days. The order further provided that if the answers were not filed within that time, appellant could, by filing a praecipe, enter judgment against appellant. On June 16, four days before the answers were due, counsel for appellant and appellee engaged in a telephone conversation in which, among other things, appellant again requested the answers. Counsel for appellee stated that the interrogatories were out to the client for answer. No answers were filed on the June 20 deadline.

On June 27 counsel for appellant again wrote counsel for appellee requesting the answers. On July 8 counsel for appellant attempted to contact counsel for appellee by telephone; the latter never returned the call. On July 10 — twenty days after the due date specified in Judge BARBIERI’s order, and almost four months after the date the answers were originally due — appellant entered judgment against appellee.

On August 1 appellee filed a petition to open the judgment, alleging basically, that it had been confused by counsel for appellant and believed that counsel was not serious about enforcing Judge BARBIERI’s order.[2]

Page 167

Additionally, appellee alleged that it had “a valid defense” to appellant’s claim. The court granted the petition to open. This appeal followed and we reverse.

It is well settled that a petition to open a judgment is an appeal to the court’s discretion, and that this discretion may properly be exercised to grant such a petition if: 1) the petition is promptly filed; 2) a defense is shown to exist on the merits; and 3) the default is reasonably explained or excused. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (citing cases); Kramer v. Philadelphia, 425 Pa. 472, 229 A.2d 875 (1967); Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359
(1963) (citing cases).

We do not believe that the default in the instant case was “reasonably explained.”[3] Judge BARBIERI’s order, and appellant’s several requests, clearly indicated appellant’s desire for answers to the interrogatories. This is not a case where appellant lulled appellee into a false sense of security, se Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966). Nor is this a case where appellant made a “studied attempt” to obtain a default judgment, see Fox v. Mellon, supra. Appellant carefully, and explicitly, preserved his rights. He certainly cannot be foreclosed from exercising them simply because he was courteous and extended the time limits. See Kramer v. Philadelphia, 425 Pa. at 477, 229 A.2d at 877.

As this Court stated in McDonald v. Allen, 416 Pa. 397, 400, 206 A.2d 395, 396 (1965): ” ‘ “The exercise of generosity does not create a binding obligation for its continuance.” ‘ ” Appellee knew of Judge BARBIERI’s order and does not now complain that it was an improper

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one under the circumstances. He cannot be heard to say that he did not think appellant was serious in his desire to enforce his rights.

The order of the Court of Common Pleas, Trial Division, of Philadelphia is reversed.