# American Express Co. v. Burgis

> Supreme Court of Pennsylvania · May 8, 1984 · 328 Pa. Super. 167

URL: https://www.frixlaw.com/law-library/cases/9635578

## Case

- **Full name:** AMERICAN EXPRESS COMPANY, Appellant v. Michael D. BURGIS
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 8, 1984
- **Citations:** 328 Pa. Super. 167; 476 A.2d 944; 1984 Pa. Super. LEXIS 4813
- **Precedential status:** Published
- **Opinion:** Concurrence by Brosky
- **Judges:** Cavanaugh, Brosky, Popovich, Brqsky
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9635578

## How later opinions describe it (automated extraction)

- stating “as to whether sufficient evidence was produced to establish that the ‘adult’ was actually in charge of appellee's residence, we note that it is appellee's burden to prove otherwise”

## Opinion text

*180 BROSKY, Judge,
concurring:
I agree with the majority that the petition to open should not have been granted, but wish to clarify the context within which we are considering the issues of whether appellant raised a meritorious defense and the promptness of his response to the entry of the default judgment. I wish to emphasize that it was only because of our initial determination that proper service of the complaint was made that it became necessary to address these issues.
Ordinarily, three factors must coalesce before a default judgment can be opened: “(1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. Where, as here, however, a defendant asserts that he was never served with the complaint and therefore had no notice of the proceedings against him, we believe that a court must determine whether such assertion is true before considering any other factors. If valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him. We have not hesitated to open judgments and give defendants an opportunity to file answers in cases where process was not properly served.
Liquid Carbonic Corp. v. Cooper & Reese, Inc., 272 Pa.Super. 462, 466 , 416 A.2d 549, 551 (1979) (citations omitted) (emphasis added).
Thus, if we had determined that valid service had not been made, it would have been pointless to also consider whether the petition to open was timely filed and a meritorious defense shown. This is so because even were we to consider these requirements and find that they had not been met, the judgment would have to be opened, nevertheless, since the lower court would never have had jurisdiction due to the invalid service. Id.; see Mischenko v. Gowton, 307 Pa.Super. 426 , 453 A.2d 658 (1982) (Brosky, J.).
*181 On the other hand, the argument could also be made that having found a valid service we again need not consider the requirements of a meritorious defense and a timely filed petition because the absence of a reasonable excuse for the default (the claimed failure to serve the complaint) precludes the opening of the judgment. However, as noted by the court in Provident Credit Corp. v. Young, 300 Pa.Super. 117 , 446 A.2d 257 (1982), a valid service does not always show actual knowledge of the suit. Consequently, even where proper service is found, a reasonable excuse for the default may still exist and, as explained by Young and the majority, that determination must be made in conjunction with an examination of the other requirements of the tripartite test.
Thus, the rule that emerges from the preceding discussion is as follows: If in considering a petition to open a judgment a court concludes that an assertion of invalid service is true, the judgment must be opened without consideration of any other factors. If, however, the court concludes that proper service was made, it must then consider all three parts of the tripartite test in the light of all of the circumstances and equities of the case before deciding whether to open the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9635578. Public record. Not legal advice.