Summary
holding that defendant's failure to hire legal counsel for eighteen months and failure to take necessary action to protect his legal interests were not acceptable excuses for its failure to file a timely answer
Summary of this case from Wilson v. AdelstonOpinion
Argued December 16, 1982
January 28, 1983.
Judgment — Petition to open default judgment — Scope of appellate review — Error of law — Abuse of discretion — Excusable neglect — Failure to protect interests.
1. In a trespass action a court in its discretion may grant a petition to open a default judgment when the petition is promptly filed and the reason for the delay is excusable. [138]
2. The decision of a court of common pleas to grant or deny a petition to open a default judgment will be overturned on appeal only when an error of law was committed or a clear, manifest abuse of discretion occurred. [138-9]
3. A petition to open a default judgment may properly be denied even when promptly filed when the failure of the municipal defendant defaulted to appear was not the result of a clerical error or mere oversight, mistake or neglect but was the result of a total failure of the municipality to protect its interests by appointing counsel or by taking any step to respond to the notice given of the intention of the plaintiff to seek a default judgment. [140-1]
Argued December 16, 1982, before Judges BLATT, CRAIG and DOYLE, sitting as a panel of three.
Appeal, No. 543 C.D. 1982, from the Order of the Court of Common Pleas of Delaware County in case of Sandra Steuber and Philip Steuber v. Township of Chester, No. 80-15675.
Complaint in trespass in the Court of Common Pleas of Delaware County seeking damages for personal injuries. Notice and praecipe for default filed. Default judgment entered. Defendant filed petition to open or strike judgment. Petition denied. REED, JR., J. Defendant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Joseph Goldberg, with him Robert R. Harris, Margolis, Edelstein Scherlis, and Christopher F. Gorbey, for appellant.
Marc S. Weisberg, for appellees.
The Township of Chester appeals an order of the Court of Common Pleas of Delaware County which denied the township's petition to open a default judgment in trespass.
The relevant facts leading to the default judgment are as follows:
On October 24, 1980, Mr. and Mrs. Philip Steuber filed their complaint in trespass against the township for personal injuries that Mrs. Steuber had received as a result of a fall she sustained, allegedly caused by the township's negligent maintenance of certain property.
Mrs. Steuber's accident occurred on March 21, 1978. Subsequently, on October 31, 1978, she suffered severe pain in her back while vacuuming carpets in her home, which she attributes to the accident.
On November 3, 1980, the Delaware County sheriff served the complaint upon a township employee at the township's administration building. That employee, in turn, forwarded the complaint to the township administrator.
In its opinion, the common pleas court notes that the sheriff served the township by handing a copy of the complaint to the chief of police on November 3, 1980. However, the township's and the Steubers' briefs indicate that the sheriff served the complaint on a township employee who, in turn, brought it to the attention of the township administrator.
On December 31, 1980, after hearing nothing from the township, the Steubers served notice upon the township, by certified mail, that they intended to file a praecipe for a default judgment against the township after the expiration of the ten-day period required by Pa. R.C.P. No. 237.1.
Pa. R.C.P. No. 237.1 provides:
(a) No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.
. . . .
(c) The notice required by subdivision (a) shall be substantially in the following form: [emphasis added]
. . . .
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:
. . . .
The township contends that the Steubers failed to comply with Pa. R.C.P. No. 237.1(c).
Counsel for the Steubers sent the following notice, by certified mail, to the Township of Chester:
January 5, 1981
Township of Chester
Municipal Building
[address omitted here]
Attn: Legal Department
Re: Sandra and Philip Steuber v. Township of Chester
To Whom It May Concern:
Please be advised that the Complaint in the above captioned matter was served upon the Township of Chester on November 3, 1980. To date no answer has been interposed.
This will advise that if an answer or other response of pleading is not interposed within ten days of the date of this letter, I will enter a default judgment against you.
[Attorney's Signature.]
This letter notified the township that it was in default and that the Steubers intended to seek a default judgment within ten days if they did not hear from the township. Furthermore, the letter was directed to the legal department. Therefore, we conclude that the letter "substantially" followed the form suggested under Pa. R.C.P. No. 237.1(c).
The township again failed to respond, and on February 19, 1981, the Steubers praeciped the common pleas court for a default judgment, which the court granted on February 25, 1981.
On January 23, 1981, counsel for the Steubers filed a praecipe for a default judgment with the Office of Judicial Support of Delaware County. However, because of a defect in the pleadings, that office returned the pleadings to the attorney for correction. Subsequently, on February 19, 1981, the Steubers' counsel forwarded the corrected praecipe to that office.
On March 9, 1981, the township filed a petition to open the default judgment, which the common pleas court denied on February 17, 1982.
A petition to open a default judgment is addressed to the common pleas court's equitable powers and is a matter of judicial discretion. Hersch v. Clapper, 232 Pa. Super. 550, 335 A.2d 738 (1975). In a trespass action, before a court may open a default judgment, it must find that: (1) the petition to open was promptly filed, and (2) the reason for the delay was reasonably explained or excused. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). DiNenno v. Great Atlantic Pacific Tea Co., Inc., 245 Pa. Super. 498, 369 A.2d 738 (1976).
Although the trial court concluded that the township failed to present a meritorious defense, this requirement applies only in an assumpsit action; in a trespass action, a meritorious defense is demanded only when the other equities are not clear. See Tice v. Nationwide Life Insurance Co., 253 Pa. Super. 118, 384 A.2d 1257 (1978).
The common pleas court concluded that the township met the timeliness requirement because its petition to open was filed twelve days after the default was taken. Therefore, we need only focus on the question of whether the township has reasonably explained or excused its failure to file a timely answer. See DiNenno.
In making this determination, we are guided by the principle that the common pleas court decision will not be overturned on appeal absent an error of law or a clear, manifest abuse of discretion. Tice v. Nationwide Life Insurance Co., 253 Pa. Super. 118, 384 A.2d 1257.
In considering an appellate court's scope of review in a case involving a petition to open a default judgment, our Superior Court said:
"It is not enough that we would decide differently were we the court of initial jurisdiction. There must be a demonstration that the trial court applied erroneous legal principles to the factual situation presented, or that the court was biased or prejudiced against the defendant." Campbell v. Heilman Homes, Inc., 233 Pa. Super. 366, 373, 335 A.2d 371, 374 (1975) (Dissenting Opinion by HOFFMAN, J., in which JACOBS and SPAETH, JJ., joined).
Tice at 122, n. 4, 384 A.2d at 1259, n. 4 (1978).
The township seeks to justify its failure to answer the complaint by explaining that the township had been without a solicitor for a period of eighteen months, from October 1979 to January 1981, as a result of political wrangling among the township's board of supervisors. The township analogizes the inertia of its officials to the situation in Campbell v. Heilman Homes, Inc., 233 Pa. Super. 366, 367, 335 A.2d 371, 373 (1975) (default judgment opened where employee inadvertently failed to relay complaint to the main office of his employer), to support its position that it is excused from the delay because the delay was "an unintentional omission to act."
After the sheriff served the complaint on a township employee on November 3, 1980, that employee forwarded the complaint to the township administrator. The administrator, believing that the complaint involved a traffic accident, forwarded the complaint to the police chief. The police chief investigated the allegations of the complaint and, finding nothing, returned the complaint to the township administrator, who then did nothing.
The police chief testified that, after receiving the notice of a potential default in January, 1981, he failed to act because he felt the problem was that of the township administrator. The administrator simply reported the matter to the township's Board of Supervisors.
Furthermore, the township contends that it was not responsible for any subsequent delay once the newly appointed solicitor began his duties on January 5, 1980, citing Maruccio v. Houdaille Industries, Inc., 254 Pa. Super. 560, 386 A.2d 91 (1978) (school district's failure to answer complaint was reasonably excused by its belief that it was properly being represented by its solicitor). Moreover, the township also asserts that the six-week delay after January 5, 1980 was excusable because the solicitor, who had inherited a backlog of work, immediately forwarded the pleadings to the township's insurance carrier once he uncovered the complaint and notice to praecipe in late January, 1980.
The delay, however, considered in its entirety, was not the result of a clerical error by a supporting staff member, see Campbell. Nor was it merely an oversight, mistake or neglect of counsel. See, e.g., Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (1966); Moyer v. Americana Mobile Homes, Inc., 244 Pa. Super. 441, 368 A.2d 802 (1976); Alexander v. Jesray Construction Co., 237 Pa. Super. 99, 346 A.2d 566 (1977).
Rather, in appraising the township's responsibility in this delay, we find Bethlehem Apparatus Co., Inc. v. H. N. Crowder, Jr. Co., 242 Pa. Super. 451, 364 A.2d 358 (1976) controlling. There, our Superior Court held that an appellant failed to justify his failure to answer where:
[T]he appellant has failed to show that it acted in a manner which would reasonably result in the protection of its legal interests.
Id. at 456, 364 A.2d at 360.
Certainly the township's failure to hire legal counsel for eighteen months, the failure of its top officials to take necessary action, and the subsequent failure of the newly appointed township solicitor to respond to the Steubers' notice of their intention to seek a default judgment, indicate that the township did not reasonably protect its legal interests.
"[M]istake or inadvertence of counsel (without more), see Westinghouse Credit Corp. v. Wenzel, 223 Pa. Super. 87, 289 A.2d 759 (1972), or demands on the time of counsel, see Goldstein v. Graduate Hospital, 441 Pa. 179, 272 A.2d 472 (1971) [citations omitted] are not patently reasonable excuses and failure to open based upon these explanations is not an abuse of discretion." St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mutual Ins. Co., 239 Pa. Super. 492, 502, 362 A.2d 1052, 1058 (1976).
Therefore, we cannot say that the trial court abused its discretion in denying the township's petition to open the default judgment. Accordingly, the decision of the common pleas court is affirmed.
ORDER
NOW, January 28, 1983, the order of the Court of Common Pleas of Delaware County, Civil Action, Law, at No. 80-15675, in trespass, dated February 17, 1982, is hereby affirmed.