J-A13021-20
2020 PA Super 191
ERIC SCALLA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
KWS, INC., A MEMBER OF THE :
THIELE GROUP, :
:
Appellant : No. 2003 EDA 2019
Appeal from the Order Entered April 12, 2019
in the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 171202802
BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*
CONCURRING OPINION BY STRASSBURGER, J.:
FILED AUGUST 11, 2020
I join the Majority Opinion with respect to the first two prongs of the
tripartite test to open a default judgment. See Majority Opinion, at 5-20.
However, because I would not reach the merits of the third prong, I
respectfully concur.
As the Majority explains, this Court has required a defendant to set forth
a meritorious defense in “precise, specific, and clear terms” to satisfy the third
prong of the test. Majority at 21, citing Castings Condominium Ass’n v.
Klein, 663 A.2d 220, 224 (Pa. Super. 1995) (“Klein must plead an arguable
meritorious defense sufficient to justify relief if proven. The defendant does
not have to prove every element of her defense[;] however, she must set
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A13021-20
forth the defense in precise, specific and clear terms.”) (citation omitted); see
also Penn-Delco Sch. Dist. v. Bell Atl.-Pa, Inc., 745 A.2d 14, 19 (Pa.
Super. 1999) (same). Further, in Smith v. Morrell Beer Distributors, Inc.,
we stated the following.
Although timely filed, the petition [to open a default judgment]
did not set forth allegations of a defense that, if proven at trial,
would entitle [a]ppellants to relief. Instead of alleging facts of
record in the petition that support a meritorious defense,
[a]ppellants set forth in their petition conclusions of law and
challenges to [a]ppellee’s proof. Motion to Open Default
Judgment, 1/12/10, at ¶¶ 2-9. In sum, [a]ppellants allege that
they have “a strong defense for this matter and it is highly likely
that plaintiff will not prevail on this case in chief.” Id. at ¶ 8. We
conclude that [a]ppellants’ petition does not set forth a
meritorious defense supported by verified allegations of fact.
29 A.3d 23, 28 (Pa. Super. 2011).
On the other hand, and as KWS argues in its brief, this Court has
“accepted a broadly worded answer as sufficient to set forth a potentially
meritorious defense, noting that ‘[t]here is no requirement that the answer
attached to a petition to open be any more specific than the typical broad
answer to a complaint.’” Stabley v. Great Atl. & Pac. Tea Co., 89 A.3d 715,
720 (Pa. Super. 2014) (finding general averment of comparative negligence
in answer and new matter, in conjunction with assertions made by defendants
at hearing on petition to open default judgment, satisfied meritorious-defense
prong), quoting Attix v. Lehman, 925 A.2d 864, 867 (Pa. Super. 2007)
(concluding “broad averments of contributory negligence in defendant’s
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J-A13021-20
answer and new matter [attached to a petition to open default judgment were]
sufficient to plead a meritorious defense”); see also KWS’s Brief at 37-42.
As the Majority points out, the three-part test is conjunctive and a trial
court cannot open a default judgment based on the equities of the case when
a defendant has failed to establish all three prongs of the test. See Majority
at 11 n.4; Seeger v. First Union Nat. Bank, 836 A.2d 163, 167 (Pa. Super.
2003). Accordingly, because it is not necessary to the disposition and this
Court has been inconsistent in its treatment of the meritorious-defense prong,
I would not address the third prong of the test here. For these reasons, I
respectfully concur.
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