Summary
In King v. Fayette Aviation, 323 A.2d 286 (Pa. Super. 1974), this Court held that the trial court erred in opening a default judgment entered against the defendant for failure to answer.
Summary of this case from Knudsen v. BrownsteinOpinion
November 14, 1973.
April 3, 1974.
Practice — Judgment by default — Defendant's failure to file answer in three months to complaint endorsed with notice to plead — Defendant's "burden of litigation" explanation — Grant of one extension of time for filing answer — Failure to answer complaint not reasonably explained — Trial limited to damages.
1. Complaints were served on the defendants with notice to plead within twenty days. Within the twenty-day period counsel for defendants obtained a twenty-day extension to file the answers. No answers were filed and approximately three months later default judgment was entered for plaintiffs. It was Held that the court below erred in opening the default judgment.
2. In the circumstances of this case it was Held that the "burden of litigation" explanation given by counsel for defendants for failure to file an answer for over three months was unacceptable.
3. Merely because an extension of time has already been granted, counsel has no justification for assuming the extension will last indefinitely.
4. Where the amount of damages depends on variable factors, the damages are not a "sum certain", and a trial is required on damages notwithstanding that judgment has been entered by default.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, CERCONE, and SPAETH, JJ. (SPAULDING, J., absent).
Appeal, No. 508, April T., 1973, from order of Court of Common Pleas of Westmoreland County, Oct. T., 1971, No. 313, in case of John King and Ralph H. Christner v. Fayette Aviation, a Pennsylvania Corporation, and Keystone Aeronautics Corp., a Pennsylvania Corporation. Order reversed.
Proceedings upon petition by defendants to open judgment entered by default.
Order entered granting petition to open judgment, opinion by RIAL, J. Plaintiffs appealed.
John W. Pollins, III, with him Hammer Pollins, for appellants.
Thomas W. Smith, with him Dickie, McCamey Chilcote, for appellees.
JACOBS, J., filed a dissenting opinion.
Argued November 14, 1973.
This is an appeal from an order granting the appellees' petition to open a default judgment for failure to answer appellant's complaints.
Appellants filed a complaint on October 28, 1971, claiming that the appellees were liable under an oral bailment contract for damages to a small aircraft. The complaints were served on appellees on November 1, and November 4, 1971, with notice to plead within twenty days. On November 9, appellees' counsel secured a twenty day extension in order to prepare and file an answer. On February 8, 1972, appellant's counsel entered a judgment by default.
Appellees' counsel filed a petition to open the judgment on March 9, 1972. A commissioner was appointed to take testimony, make findings of fact and recommendations. He conducted a hearing at which counsel for both parties testified. The commissioner recommended that the judgment be opened and found that all elements necessary for doing so were present: the petition was promptly filed; it averred a meritorious defense; and, the default in answering the complaint was reasonably explained. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). The court below dismissed appellant's exceptions to the findings and recommendation, and opened the judgment.
The commissioner found that counsel's other court commitments established an adequate excuse under the circumstances to justify opening the judgment. While we will not pass on the credibility of counsel's assertion, we cannot accept a "burdens of litigation" explanation for a failure to prepare and file an answer for over three months. See Balk v. Ford Motor Company, supra, 446 Pa. at 143; Retzback v. Berman Leasing Company, 222 Pa. Super. 523, 527 (1972) (concurring opinion). Appellant's cause of action was not a particularly complicated one and the preparation of an answer should not have been an unusually difficult or time consuming matter. An extension of time had already been granted and counsel had no justification for assuming that the extension would last indefinitely. Pappas v. Stefan, 451 Pa. 354, 357 (1973). If counsel was so pressed for time it would have been a simple matter for him to have asked for another extension of time or have another attorney in his law firm prepare an answer. We find counsel's explanation for his total inaction for three months to be lacking sufficient merit to justify opening the judgment.
The Commissioner also found that appellees' counsel believed that he would be notified before appellant's counsel took any action. There is, however, no evidence on the record that appellant's counsel did or said anything that would support such a belief. He had already been given a twenty day extension, and had no reason to expect that appellant's counsel would notify him prior to taking any action.
While we conclude that the court below erred in opening the judgment and order that it be reinstated, appellant is not entitled to a judgment in the amount claimed. Since the amount of damages depends upon the reasonable value of the aircraft and its salvage value, the damages are not a "sum certain" and a separate trial is necessary. Evans v. Allied Discount Co., 199 Pa. Super. 239, 184 A.2d 345 (1962); Pa. R.C.P. Nos. 1037(b), 1047(a).
The order of the court below is reversed, the judgment of liability reinstated and the case remanded for a trial on damages.
I respectfully dissent.
The discretion traditionally accorded the lower court in matters involving the opening of judgments seems to me particularly appropriate in cases where the reasonableness of an attorney's conduct involves local practice and custom. If, in the case at bar, local practice and custom included an understanding that a judgment would not be taken under the present circumstances absent notification to opposing counsel, the lower court was justified, in the exercise of its sound discretion, in holding the technical lapse of appellees' attorney excused. Cf. Good v. Sworob, 420 Pa. 435, 218 A.2d 240 (1966). For that reason, I believe that the order of the court below should be affirmed.