
    Atlas Aluminum Corporation, Appellant, v. Methods Research Products Company.
    
      March 22, 1966:
    Argued January 7, 1966.
    Before Bell, CL J., Musmanno, Jones, Cohen, Eagen, O’Brien and Roberts, JJ. . .
    
      William C. Beatty, with him Joel Friedman, Abraham F. Freedman, Arnold Levin, and Freedman, Borowshy & Lorry, for appellant..
    
      Harry J. Bradley, with him John S. J. Brooks, and Brooks, Oliver, Macartney & Holl, for appellee.
   Opinion

Per Curiam,

- This is an appeal from the order of the lower court opening judgment and allowing defendant to enter the defense of statute of limitations.

On April 7, 1965, plaintiff filed its.complaint in assumpsit alleging breach of warranty by defendant. On May 12, .1965 the complaint was reinstated, and on. June'1.1, 1965, a-,copy, .endorsed.-,with' notice- to .plead. Avithin twenty days, w.as- served upon defendant. .

On July 2, ;1965, -the. twenty-first day after service, at. 9 :04 a.m,,. plaintiff ..filed' praecipe. for default. judgment for failure to file an answer, and .judgment vyas. entered by the prothonotary. On the same day -at- 2:36 p.nr --.defendant’s attorney entered his appearance. Thereafter, counsel for both parties entered into pm. successful negotiations....to...stipulate .to the opening of the default judgment. On September 14, 1965, defendant finally filed a petition to open, judgment,.alleging that its failure to file a timely, answer was due to the mistaken belief that it was proceeding in a timely manner, On September 24, 1965, after. argument,. judgment was- opened,.-and. on-September 28, 1965 defendant filed an answer and new matter raising -the affirmative-de^ fen'se Of- statute-of limitations.

A. petition to open judgment is addressed to the sound discretion of .the court, is .an appeal to the court’/ equitable powers, and is determined by the application of , equitable principles,,-. In. order to prevail, petitioner must .act promptly, ; aver meritorious defense,: .and plead a sufficient excuse for the default. Ehnes v. Wagner, 388 Pa. 102, 130 A. 2d 171 (1957).

.. The court below found- that the petition to open judgment was filed promptly even though it was filed more than seventy, days after'the date of .default and more than forty days after negotiations for a stipulation to open judgment had ceased; that the defense of statute of limitations was meritorious and was,properly raised .even though pleaded for the first time in -defendant’s answer and new matterand that defendant’s, excuse for its default was acceptable.

It is apparent that ...the failure to file the petition expeditiously makes this case difficult to resolve. Certainly we cannot condone the tactics of defendant’s counsel; nór cao we, as we. must in order, to reverse, determine that the court below was guilty of a manifest abuse of discretion in opening the judgment. Accordingly, we shall affirm the order of the court below and permit the defendant'to raise the defense of statute of limitations.

Order affirmed.

Mr. Chief Justice Bell and Mr. Justice Roberts dissent.  