ZEHR v. MARCH, 407 Pa. 471 (1962)

181 A.2d 428

Zehr, Appellant, v. March.

Supreme Court of Pennsylvania.April 25, 1962.
May 21, 1962.

Judgments — Default — Opening — Failure of counsel to file timely answer.

In this action in equity in which a default judgment was entered for the want of an answer and thereafter defendants petitioned to open the judgment, averring a full and complete defense, and it appeared that local counsel did not understand the facts sufficiently to prepare an answer and defendants’ principal counsel because of illness did not prepare an answer, it was Held that the court below did not abuse its discretion in opening the judgment.

Mr. Justice COHEN filed a dissenting opinion.

Page 472

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

Appeal, No. 219, Jan. T., 1962, from order of Court of Common Pleas of Montgomery County, June T., 1960, No. 7, in case of Matthew M. Zehr v. William S. March, Thomas M. Bray, Don F. Tarlecki et al. Order affirmed; reargument refused June 13, 1962.

Equity.

Judgment entered in favor of plaintiff and against defendant for failure to answer complaint, defendant’s petition to open judgment granted and order entered, opinion by FORREST, P. J. Plaintiff appealed.

J. Leon Rabben, with him Leonard F. Markel, and Tubis and Rabben, for appellant.

W. J. C. O’Donnell, with him John P. Yatsko, and O’Donnell O’Donnell, for appellees.

OPINION PER CURIAM, May 21, 1962:

The order of the court below is affirmed on the opinion of President Judge FORREST of the Court of Common Pleas of Montgomery County.

DISSENTING OPINION BY JUSTICE COHEN:

Since the petition to open judgment in this case did not contain and the defendants did not prove a meritorious defense, and since the failure on the part of defendants’ counsel to represent diligently the defendants has not been properly excused, I would reverse the action of the lower court in opening the judgment.

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