Conti v. Shapiro, Eisenstat, Capizola, O'Neil, Lisitski & Gabage, PA

HOFFMAN, Judge:

Appellant contends that the lower court abused its discretion in denying his petition to open a judgment entered against him. We disagree and, accordingly, affirm the order of the lower court.

On February 11, 1977, appellee and her husband filed a complaint in trespass against appellant and others, alleging that she had been injured when she fell on the sidewalk outside appellant’s shop. Although appellant was duly served, no appearance was entered on his behalf. After engaging in some discovery with the other parties, appellee filed a certificate of readiness, whereupon the case proceeded to arbitration. Appellant failed to appear at the hearing which was held on July 13, 1978. Consequently the panel found in favor of appellee against appellant and awarded her $1,500. Judgment was entered on the arbitration award on September 29, 1978. Appellee immediately began execution proceedings by filing a praecipe for a writ of execution. On October 13, 1978, the Sheriff of Philadelphia levied upon appellant’s property. On November 27, 1978, appellant petitioned to open and/or strike the judgment against him, alleging that he had first learned of the judgment when the Sheriff levied upon his property and that his failure to appear at the hearing was excused because he had no notice and he reasonably believed that his insurer had undertaken his defense. The lower court denied his petition. This appeal followed.

Petitions to open judgments are equitable in nature and are addressed to the sound discretion of the lower court. See, e.g., Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., 271 Pa.Super. 566, 568, 414 A.2d 628, 629 (1979). Our Court will not reverse an order denying such a petition unless the record shows a clear abuse of discretion. Forest v. Rotkis, 244 Pa.Super. 447, 368 A.2d 805 (1976). Moreover, in a trespass action, a petition to open may be granted only if: (1) the petition was timely filed, and (2) there exists a legitimate explanation or excuse for the failure which occasioned the judgment. See Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., supra, 271 Pa.Super. at 569-70, 414 A.2d at 629-30. The lower court denied appellant’s petition because it found that appellant had failed reasonably to explain his failure to appear at the arbitration hearing.

Appellant contends that the lower court erred because his failure to appear was excused by the fact that he lacked notice of the hearing and that he reasonably believed that his insurer had undertaken his defense. We disagree. Although appellant testified at his deposition that he took the complaint and other relevant papers he subsequently received to his insurance agent, who allegedly assured him that he was covered appellant “offered no explanation as to why the insurance carrier failed to act.” Bethlehem Apparatus Co., Inc. v. H.N. Crowder, Jr., Co., 242 Pa.Super. 451, 455, 364 A.2d 358, 360 (1976) (petitioner lacked justifiable reliance upon insurer). Mere allegation of negligence on the part of an insurance carrier will not constitute justification to open a default judgment. DiNenno v. Great Atlantic & Pacific Tea Co., Inc., 245 Pa.Super. 498, 502, 369 A.2d 738, 740 (1976). Unlike those cases in which appellate courts found petitioner-insureds’ reliance to be justified, e.g., Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Forest Hills Transfer & Storage Co., Inc. v. Beaver Valley Builders Supply, Inc., supra, appellant has not offered any evidence to explain the failure of the insurance company to undertaken his defense. Cf. Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars, 237 Pa.Super. 419, 352 A.2d 134 (1975) (insurer advised petitioner by letter that it had entered an appearance for him prior to entry of default judgment). Consequently, we cannot conclude that the lower court abused its discretion in denying appellant’s petition to open.^* See Murphy v. Smith, 415 Pa. 512, 204 A.2d 275 (1964).

Order affirmed.

SPAETH, J., files a concurring and dissenting opinion.

* Appellant contends also that the lower court erred in refusing to strike the judgment. We disagree. A petition to strike may be granted only when a fatal defect appears on the face of the record, and the facts are not controverted. Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 416 A.2d 549 (1979). In search of such a defect, a court will only look to the record as it existed when the judgment was entered. Linette v. Linette, 434 Pa. 441, 254 A.2d 7 (1969). From our review of the record, we find no fatal defect.