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HomeMy WebLinkAbout94-00333 MIRIAM L. HBRRING, plaintiff I IN THB COURT O~ COMMON PLEAS I CUMBBRLAND COUNTY, PBNNSYLVANIA I I I I I I I v. CIVIL ACTION NO, HILLS STORBS COMPANY, t/d/~/a HILLS DBPARTMBNT STORB, CiVil 11q~ No. .3 33 Defendant JURY TRIAL DBMANDBD NOTICB You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 NOTICI~ Le han demandado a usted en la corte. si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demand as en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en 1a peticion de demanda. Usted puede perder dinero 0 BUS propiedades 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOGADO IMMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAHE POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE COURT ADMINISTRATOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 240-6200 ;'"' ...... MIRIM L. HBRRING, I IN THB COURT OP COMMON PLBAS Plaintiff I CUMBBRLAND COUH'l'Y, PBNNSYLVANIA I v. I CIVIL ACTION NO. I JqqLf HILLS STORBS COMPANY, I 13:3 C,'\l1 t/d/b/a HILLS DBPARTMENT I STORB, I Defendant I JURY TRIAL DBMARDBD COMPLAINT 1. Plaintiff, Miriam L. Herring, (hereinafter "Herring") is an adult individual residing at 104 East Front street, Lewisberry, PA 17339. 2. Defendant, Hills stores Company, (hereafter "HillS") is a foreign business corporation organized under the laws of the state of Delaware and trades and does business as Hills Department store, (hereinafter "Premises"), 3431 simpson Ferry Road, Camp Hill, Cumberland County, Pennsylvania. 3. On or about November 28, 1992, Herring entered the Premises for the purpose of shopping for merchandise available for sale to her and other customers. 4. After entering the Premises, Herring proceeded into an area within the premises wherein ladies pocketbooks were displayed for sale to her and other customers. 5. Herring proceeded to begin to inspect said merchandise. 6. While Herring inspected said merchandise, another individual attempted to access the area in which Herring was situated. 7. Said individual was unable to access the area in which Herring was situated in that the space of said area was limited, narrow and/or inadequate and unable to physically accommodate more than one person that being Herring. 8. Upon realizing said individual was attempting to access said area, Herring attempted to exit the area in the same direction in which she had entered. 9. While carefully and lawfully attempting to exit said area, Herring tripped on a part of a display platform located in said area which protruded into and/or obstructed the path used by her and other customers for purposes of ingress and egress of said area and fell on the floor injuring herself. 10. Herring suffered a fracture of her pubic ramus causing her extreme pain and suffering, emotional distress, loss of mobility, loss of enjoyment of her daily activities, loss of the pleasures of life and past and future medical expenses. 11. said protrusion and/or obstruction constituted a dangerous and/or defective condition which had been allowed to exist and remain on the Premises with knowledge of Hills. 12. Said lImited, narrow and/or inadequate space constituted a dangerous and/or defective condition which had been to exist and remain on the Premises. 13, At all times set forth herein and the Premises were under the exclusive possession, custody and control of Hills. 14. At all times set forth herein and for a sufficient period of time prior thereto, Hills had or should have had notice and/or knowledge of said dangerous and/or defective conditions. 15. The injuries and damages which are set forth herein were caused solely by and were the direct and proximate result of the negligence of Hills, in any or all of the following respects: (a) In failing to keep the Premises in a safe condition for persons lawfully using same; (b) In permitting the dangerous and/or defective conditions to exist and remain on the Premises when Hills knew or in the exercise of reasonable and/or ordinary care should have known of the danger involved; (c) In failing to warn Herring of the dangerous and/or defective conditions set forth hereinabove; (d) In failing to remove, cover, blockade or otherwise eliminate the dangerous and/or defective conditions of which Hills knew or in the exercise of reasonable and/or ordinary care should have known; (e) In permitting persons, and Herring, in particular, to traverse the Premises when Hills knew or in the exercise of reasonable and/or ordinary care should have known that it was dangerous to do so and involved an unreasonable risk of harm to persons so doing; (f) In failing to notify or warn Herring of the dangerous and/or defective conditions so that the hazard involved could be avoided; (g) In maintaining and/or operating the Premises in such a manner as to constitute a danger to persons lawfully thereon; (h) In failing to make reasonable inspection of the Premises to discover the dangerous and/or defective conditions or in inspecting so carelessly so as not to have discovered said conditions; (i) In permitting the physical arrangement of the materials, displays, shelves and/or aisles to exist and remain on the Premises, which created the dangerous and/or defective conditions; (j) In failing to exercise that degree of care and regard for the rights and safety of Herring as was required under the circumstances; (k) In being otherwise negligent and careless in other acts as may be determined during the course of discovery to be conducted pursuant to the Pennsylvania Rules of civil Procedure. WHEREFORE, Plaintiff, Miriam L. Herring, demands judgment be entered against Defendant Hills stores Company in an amount in excess of Twenty Five Thousand ($25,000.00) Dollars, plus costs of suit and such other relief as allowed by law or that may be adjudicated as just and proper. Respectfully submitted, LAWS, STARUCH & PISARCIK By: ;l~~.~~:* tjd. Michael J. Wilson, Esq. Atty. I.D. No. 52680 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 REIFF, MORRISSEY & ASSOCIATES VERIFICATION I, Miriam L. Herring, do hereby certify that I am authorized to make this verification and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. This verification is made subject to the penalties of 18 Pa.C.S. section 4909 (relating to unsworn falsification to authorities). ~~~j~ M r am L. Herr ng ,.>4, ~"'l.'" ""l ~ '"'lS 1t- ~ "-.l ~ <'<') ~ i -l.3 '~ ~ f .: t ~ ;: ~ a; ~ >. - -:yr: iE ~ " G 0 Q WC..:j4' \J) '" ':,I:r;:' :;, 0 \c) .:t' ~r: ,_'.., .. ;.L. Co .'~ 'Cl In N -.._J 1.."\ \ ' " - OJ .~'I :::,.. ::;- " ~ I '0 . ,.'7J;.c \ ...... ..:"::r;~ :z ..,J, ,~ => ~ <", '-' ~ MIRIAM L. HERRING, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . . . vs. : No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant RULE AND NOW, this ~ day of March, 1994, upon presentation of the within motion to open judgment, and upon motion of Thomas G. Parisi, Esquire and O'Pake, Malsnee, Orwig & Parisi, u ~P.C., attorneys for the Defendant in the above-captioned matter, ill it ~a rule is hereby issued upon the Plaintiff, Miriam L. Herring, .. " ~to show cause why the judgment entered in the above-captioned a: o ~matter should not be opened. z ~ :I ui ~ b " ... !.! i:: o J :5 RULE RETURNABLE: ~o~~ S..DtAJ I LR..... All proceedings herein to stay mea J. ,,", ~-.' - r L HtR 29 4 09 ;'H '9~ Jr Flel: UI ': ,1HON:'TAI;Y CUI':!:!" ~IID C"UIiTr Pf.'iN$'(L',t.NIl. , . ,-.... MIRIAM L. HERRING, plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant : ORDER AND NOW, this day of , 1994, the judgment entered in the above-captioned matter is hereby ordered opened. u a: iIi it if .. " a: a: o W w ~ .... .. ::Ii W " if b .. ... :f ~ o ~ :5 BY THE COURT: J. MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant PETITION TO OPEN OR STRIKE JUDGMENT The Petition of Defendant Hills stores Company, by and through their attorneys Thomas G. Parisi, Esquire and O'Pake, Ma1snee, Orwig & Parisi, P.c., respectfully represents: U 0. 1. Plaintiff herein filed a Complaint in the above- vi ~ captioned matter on or about January 2(." 1994. .. Cl !E a: o ~by handing to Mr. Melvin Shepperd, a non-management employee of z III ~Defendant, Hills Stores Company. 2. The Complaint was served on or about January 27, 1994, iii ~ 3. The Complaint in question was forwarded to Defendant's b 5main office in canton, MA, and subsequently forwarded to a ~ ~ ~claims administration firm. ~ 4. By telephone call of March 7, 1994, the claims adjustment firm had notified counsel, Thomas G. Parisi, Esquire, of the Complaint, and indicated all materials were being forwarded, but that the Complaint was already outside of the 20 day period. 5. Counsel for Defendant, Thomas G. Parisi, Esquire, placed a telephone call to the office of Plaintiff's attorney, Michael J. Wilson, Esquire at the law office of Laws, Staruch & Pisarcik on March 7, 1994, and left a message that he would be entering his appearance in the above-captioned matter, and asking Attorney Wilson to contact him, as well as requesting an extension of time for filing of a responsive pleading. 6. Defense counsel, Thomas G. Parisi, immediately prepared an Entry of Appearance form, which was mailed to the Cumberland county Prothonotary's office on March 7, 1994. 7. Said Entry of Appearance was filed and time stamped on March 8, 1994 by the Cumberland County Prothonotary's office, and a copy of the Entry of Appearance, with time stamp, is attached hereto as Exhibit "A", and incorporated herein by u .. reference. iii ~ 8. Defense counsel, Thomas G. Parisi, Esquire also .. " ~immediately dictated a letter to Plaintiff's attorney, Michael a: o ~Wilson, not having received a response from him, which letter z en ~was mailed on March 8, 1994. ui ~ 9. Plaintiff's counsel claims to have filed a default b ~judgment on March 8, 1994 against Defendant Hills Stores ~ ~ o J Company. ~ 10. Defendant and Defendant's counsel of record have received no official notice of judgment having been entered. 11. The default judgment violates Rule 237.1 of the Pennsylvania Rules of Civil Procedure, in that a 10 day notice was not provided to counsel of record. 12. The default judgment in question violates Rule of civil Procedure 237.1 in that any notice which may have been sent to the Defendant did not provide 10 days from the date of notice to the date of entry of default judgment. 13. The Defendants have a clear defense to the Complaint in question in that there was no negligence on the part of Defendant Hills stores Company which resulted in injuries to the Plaintiff in this matter. 14. The Defendants hereby attach As Exhibit "B" and incorporate by reference a copy of the Answer which was prepared and would have been filed in the above-captioned matter. 15. Plaintiff's counsel had previously entered into negotiations with Mr. Dean A. Lapson, the claims adjustor in the above-captioned matter, and was aware of and had previously u ~corresponded with Mr. Lapson with regard to possible settlement iiI a: if in this matter. .. " ~ 16. No notice of the Complaint, nor of the intention to a: o ~fi1e a Praecipe for Entry of a Default Judgment was forwarded to z III ~Mr. Lapson by Plaintiff's counsel. w i 17. The judgment in this matter was a "snap" judgment b etaken by the Plaintiff in order to avoid the issue of negligence ~ ~and liability with regard to Plaintiff's injuries. ~ 18. Defendant believes and therefore avers that the snap judgment was particularly rushed upon contact by attorney for the Defendant in this matter. 19. The interests of justice, and full and fair litigation of controverted issues, should allow the judgment to be opened in this matter, and the issue of liability to be decided by trial. WHEREFORE, the Defendant respectfully requests this Honorable Court to open or strike the judgment which has been entered in this matter, and allow a defense. Defendants also request this Court to stay any further proceedings until decision has been made as to this Petition to Open or strike Judgment. Respectfully submitted, --1h-"""'G\~ ~, ~~~~ Thomas G. Par si, Esquire U 0: uS i< 11: .. " i a: o oj w ~ ~ :I oj '" 11: b Ul Ii I:: o ~ VERIPICATION I, THOMAS G. PARISI, ESQUIRE, attorney for Defendant in the foregoing action, verify that I am authorized to take this verification and that the statements made in this Petition to Open Judgment are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. section 4904, relating to unsworn falsification to authorities. u ~ i ~UYl1q~ (. r~\~ f rf\ .. Dated: ...!..:..JC\^ ci. 2t , 1994 o ' ~ It o W w z Ul .... ~ w ~ o Ul .. \I ~ l!; ~ MIRIAM L. HERRING, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant CERTIFICATE OF ADDRESSES I hereby certify that the addresses of the attorneys of record for the parties in this action or the parties themselves if unrepresented are as follows: For Plaintiff, Miriam L. Herring: u .: i1i ii: if .. " ~ a: o W w z '" ... .. ::I W " if b on .. \I ~ ~ o ~ ~ Michael J. Wilson, Esq. Laws, Staruch & Pisarcik 20 Erford Road, Ste. 215 Lemoyne, PA 17043-1163 For Hills Stores Company t/d/b/a Hills Department Stores: Thomas G. Parisi, Esquire O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 O'Pake, Malsnee, Orwig & Parisi, P.C. Date: March 28, 1994 , By ---rh~ ~ C\. ~\J1 THOMAS G. PARISI, ESQUIRE 1815 Bernville Road Reading, PA 19601 MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . vs. No. 333-C-1994 . . HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . . . CERTIFICATE OF SERVICE I, Thomas G. Parisi, hereby certify that I served a copy of the foregoing Petition to Open Judgment upon the following, by first-class United states mail, postage prepaid, on this date. u r.: iIi ii: if .. Cl ~ It o ui w z ~ .. ::I ui i b .. .. ~ DATED: o I ~ Michael J. Wilson, Esq. Laws, Staruch & pisarcik 20 Erford Road, Ste. 215 Lemoyne, PA 17043-1163 ..=Ih ~ c: '\ (,. ~o.-.'J../ . March 29, 1994 exhibit A O'PAKE, MALSNEE, ORWIG & PARISI, P.C. BY: THOMAS G. PARISI, ESQUIRE Identification No. 38512 1815 Bernvi11e Road Reading, PA 19601 (215) 372-2424 ATTORNEY FOR: Defendant MIRIAM L. HERRING, plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSY~VANIA CIVIL ACTION - LAW . . . . vs. No. 333-C-1994 . . HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . ENTRY OF APPEARANCE -:: ... u .. ;;i it ~TO THE PROTHONOTARY: .. " ~ II: o ~Department Stores, the Defendant in the above case, and I ~ idesignate 1815 Bernville Road, Reading, Berks County, ui iPennsylvania, as the place where papers, process and notices may b ::l be served. \I ~ ~ o J ~ ' ~ -:,. - ~ Enter my appearance for Hills Stores Company t/d/b/a Hills 7hdYY'lG.> ~. 'r~'IA Thomas G. Paris : Esq. Attorney for Defendant DATED:J1)~..J.,], Ll'j~ exhibit B --- MIRIAM L. HERRING, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. : No. 33J-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . ANSWER TO PLAINTIFF'S COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 5 of Plaintiff's Complaint. Proof thereof, if relevant, is demanded. 6. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 6 of Plaintiff's Complaint. Proof thereof, if relevant, is demanded. 7. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 7 of Plaintiff's Complaint. Proof thereof, if relevant, is demanded, 8. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 8 of Plaintiff's Complaint. Proof thereof, if relevant, is demanded. 9. Denied, After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 9 of Plaintiff's complaint. Proof thereof, if relevant, is demanded. In further response, it is denied that the display platform in question protruded or obstructed the path used by customers for purposes of ingress and egress from such area. 10. Denied. After reasonable investigation, Defendant is without sufficient knowledge or information to form a belief as to the truth of the averments contained in paragraph number 10 of Plaintiff's Complaint. Proof thereof, if relevant, is demanded, 11. Denied as a conclusion of law to which no response is required. In further response the display platform did not constitute a dangerous nor a defective condition in any way. 12. Denied as a conclusion of law to which no response is required. In further response it is denied that the area in question was unreasonably narrow or inadequate. 13. Admitted. 14. Denied as a conclusion of law to which no response is required. In further response, it is denied that the condition in question was dangerous or defective. 15. Denied. It is denied that any injuries which may have been suffered by the Claimant were as a direct and proximate result of any negligence on the part of Hills: (a) It is denied that Hills failed to keep the premises in a safe condition for persons lawfully using the same: (b) It is denied that Hills permitted a dangerous or defective condition to exist and remain on the premises in any way. It is further denied that Hills knew or in the exercise of reasonable ordinary care should have known of any alleged danger; (c) It is denied that Hills was negligent for failing to warn Herring of the condition. Hills hereby incorporates their answer to subparagraphs (a) and (b) above; (d) It is denied that Hills was negligent or had any duty to remove, cover, blockade or otherwise eliminate the condition. It is .f.urther denied that the condition was dangerous or defective. Defendant Hills hereby incorporates their answers as set forth to subparagraphs (a) and (b) above; (e) It is denied that Hills was negligent in permitting persons to traverse the premises. Defendant Hills answers to subparagraphs (a) and (b) are incorporated herein; (f) It is denied that Hills was negligent in failing to notify or warn Herring of any dangerous or defective condition. It is denied that there was any dangerous or defective condition; . (g) It is denied that Hills was negligent in maintaining and/or operating the premises. It is further denied that the operation of the premises constituted a danger to persons lawfully thereon; (h) It is denied that Hills was negligent in failing to make reasonable inspection of the premises to discover dangerous or defective conditions. In further response, it is denied that there were dangerous or defective conditions on the premises which resulted in Plaintiff's injuries; (i) It is denied that Hills was negligent in permitting the physical arrangement of the materials, displays, shelves or aisles. It is further denied that said materials, displays, shelves or aisles created a dangerous or defective condition; (j) It is denied that Hills was negligent in failing to exercise a degree of care and regard for the rights and safety of Plaintiff as was required under the circumstances. It is denied that Hills was negligent in any way. WHEREFORE, Defendants Hills stores Company demands judgment to be entered in their favor and against the Plaintiff. Respectfully submitted, O'PAKE, MALSNEE, ORWIG & PARISI, P.C. Thomas G. Parisi, Esq. Attorney for Defendant Attorney I.D. 38512 1815 Bernville Road Reading, PA 19601 VERIFICATION I, , verify that I am authorized to make this verification for Hills Department store, Inc. in the foregoing matter, that I have reviewed the foregoing Answer to Plaintiff's Complaint, and to the extent it is based upon information which I have given to counsel said Answer to Plaintiff's Complaint is true and correct to the best of my knowledge, information and belief. To the extent that the language of the Answer to Plaintiff's Complaint is that of counsel, I have relied upon counsel in making this verification. This statement is made subject to the penalties of 18 Pa. C.S. section 4904 relating to unsworn falsification to authorities. Dated: MIRIAM L. HERRING, plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW VB. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . : CERTIFICATE OF SERVICE I, Thomas G. Parisi, hereby certify that I served a copy of the foregoing Answer to Plaintiff's Complaint upon the following, by first-class United States mail, postage prepaid, on this date. DATED: March ___, 1994 ~ < Z lIl< III &'1;:; ..... .Q r.:l . ..:l:>< ..... :.: QI 0 l1<lIl 'tl - H III ~ Z ~~ .....lIl ~ r.:l "-l .a.J[:l-g Eo< o r.:l< "-l III - 0 1 - 1l1<..:l ..t :><0 III H . 0 .a.J ZEo<'tl ~ ~ B cl:l J ~ o ~+; -I: <lIll: 0 U ~Z " ..t l1< Q) ZIll :EEo<"-l ZEo< ~~ J l~ r... zo H~ OZ2l ~&3 o OH ~l1< Ur.:l o Eo< ~ :E O:E .~ J ~ Eo< UU r.:l lIlEo< " ":3 If) ~ < :<: r.:l~ 00 III ~c: 2a~ 00 ~< Eo< 0 8 Z..:l , ~~ ..., ;j ~< <~ ..:l . Z III lIlO 0 r.:llilH ~ > H o Q.; :<: r.:lU lIllll Eo< ~ 0 Eo<lll H ..:l..:l H :E ~ ..:l..:l Eo< ~B H HH r.:l :E :<::<: l1< .. . . .. . MAR 29 1991( Dated: May 16, 1994 /lfJv. tJ~ Michael J. Wilson, Esq. MIRIAM L. HERRING, . IN THE COURT OF COMMON PLEAS , Plaintiff . CUMBERLAND COUNTY, PENNSYLVANIA . . . v. . NO. 333-C-1994 . HILLS STORES COMPANY t/d/b/a . . HILLS DEPARTMENT STORES, . . Defendant . . PLAIHTIWW'S OBJBCTION TO RBQUBST WOR HBARING Plaintiff, Miriam L. Herring, by and through her counsel, Michael J. Wilson, does hereby object to Defendant's Request for Hearing in the above-captioned matter, and requests the matter be resolved by oral argument and the pleadings and filing of record. aJ-:r. tJ~ Michael J. Wilson, Esq. Attorney for plaintiff CBRTIWICATB OW SBRVICB I, Michael J. Wilson, hereby certify that I served a copy of the foregoing Objection to Request for Hearing upon the following, by first-class United States mail, postage prepaid, on this date. Thomas G. Parisi, Esq. O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 .",.. C"I - ;::: ?;,... .'- -. - ~~i';~ , --:"...... ;::) N ,"V) ;:...:' '.~ ;,. - -' ~ ::;,.. .... MIRIAK L. HBRRING, I IN THB COURT OF COHMON PLEAS plaintiff I CUMBBRLAND COUNTY, PBHHSYLVANIA . . v. I NO. 333 C 1lIt4 I HILLS STORBS COMPANY t/d/b/a I HILLS DBPARTMBHT STORBS, I CIVIL ACTION - LAW Defendant I PRAECIPE TO LIST FOR ORAL ARGUMENT To: Prothonotary Please list the above matter for oral argument as to Defendant's Petition to Open/strike Judgment, the accompanying Rule to Show Cause, and Plaintiff's Answer thereto. LAWS, STARUCH & PISARCIK Attorneys for Plaintiff Dated: M.4V 2., I tit:} c.! /!iI-I' \1:' tt/..e-- BY: Michael J. Wilson, Esq, Atty J.D. 52680 20 Erford Rd, suite 215 Lemoyne, PA 17043 (717) 975-0600 . ,. . CERTIFICATE OF SERVICE I, Michael J. wilson, Esquire, hereby certify that a true and correct copy of the foregoing PRAECIPE TO LIST CASE FOR ORAL ARGUMENT was forwarded ~"'-!!. prepaid on this ~ following: by United States first class mail, postage day of ~M{ . 1994, to the Thomas G. Parisi, Esq. O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 LAWS, STARUCH & PISARCIK Attorneys for plaintiff ;I;~'J": /./ r.L-- Michael J. Wilson, Esquire 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 .".. en - = c:.._ N N >-,.. .r ,... ~", ';":-: 'JI, <,):r; ',.~ ;: t~r.'" M - .... ::= -, , ~ ,.;" <# KIRIAH L. HERRING, I IN THB COURT O~ CONKON PLBAS Plaintiff I CUKBBRLAHD COUIITY, PBHIISYLVUlIA . . v. I NO. 333 C 19114 I HILLS STORBS COKPANY t/d/b/a I HILLS DBPARTKBHT STORBS, I CIVIL ACTION - LAW Defendant I ORDBR AND NOW this after consideration of the in Defendant's Petition to Plaintiff's Answer thereto day of , factual and legal arguments set open or strike Judgement and 1994, forth IT IS HEREBY ORDERED that the Rule to Show Cause is dissolved and Defendant Petition is hereby DENIED IT IS FURTHER ORDERED that the above-captioned proceedings go forward to a trial on the issue of damages upon praecipe of either party listing the matter for trial. Judge KIRIAN L. HERRING, Plaintiff I IN THB COURT O~ CONKON PLBAS I CUKBBRLAHD COUIITY, PBHHSYLVUlIA . . v. I NO. 333 C 1994 I I I CIVIL ACTION - LAW I HILLS STORBS COMPANY t/d/b/a HILLS DBPARTKBHT STORBS, Defendant AHSWBR TO PBTITION TO OPBH OR STRIltB JUDGIlIHT AND RULB TO SHOW CAUSB 1. Defendant was served the subject complaint on January 27, 1994. 2. The Sheriff's Return indicates that Deputy Sheriff Timothy Reitz served Defendant by handing to Melvin Sheppard a true and attested copy of the Complaint and Notice on such date. See Return attached hereto as Exhibit A. 3. The Sheriff's Return further indicates that Melvin Sheppard represented himself to be a "Customer Service Supervisor" which Plaintiff asserts was a manager, clerk or other person for the time being in charge of the place of business. 4. After waiting until February 25, 1994, a period of 29 days following the date of service of process, Plaintiff's counsel had not been contacted by Defendant or any person on behalf of Defendant. 5. On February 25, 1994, Plaintiff's counsel mailed a 10-day notice of intention to enter a default judgment, required under the Pennsylvania Rules of civil Procedure (pa. R.C.P.), to Defendant at the place of business it was served. 6. The 10-day default notice was mailed on said date by certified mail, return receipt requested, parcel number P 845 589 911, to ensure actual receipt of it by Defendant. See Praecipe for Entry of Default Judgment with attached proof of certified mailing. 7. On February 26, 1994, Melvin Sheppard signed for and received said notice on behalf of Defendant. See Praecipe for Entry of Default Judgment with attached receipt (PS Form 3811). 8. On March 8, 1994, eleven days following the mailing of said notice and forty days after service of process, Plaintiff's counsel had not been contacted by Defendant or any person on behalf of Defendant. 9. Plaintiff's counsel specifically denies receiving any message from Defendant's counsel on March 7, 1994, and, in fact, was in Cumberland, Maryland all day at a deposition of record. 10. On March 8, 1994, Plaintiff filed a Praecipe for Entry of Default Judgment and was granted a default judgment by the Prothonotary on the issue of liability with damages to be assessed at trial. See Praecipe for Entry of Default Judgment. 11. Said Praecipe was not filed until 11:41 a.m. on said date. . . . 12. Plaintiff's counsel received no contact from Defendant or anyone on its behalf during the morning hours prior to the filing of the Praecipe despite Defendant's counsel's assertions that he left a message the previous day and received no return call. See paragraph 5 of Defendant's Petition. 13. Defendant admits it did not notify its counsel of the Complaint until a telephone call on March 7, 1994. See paragraph 4 of Defendant's Petition. 14. Defendant admits it did not file any responsive pleading prior to entry of the default judgment but rather only filed an entry of appearance. See paragraphs 6 and 7 of Defendant's Petition. 15. Plaintiff's counsel first received notice of the entry of appearance and a letter from Defendant's counsel (see para1raphs 7 & 8 of Petition) on March 10, 1994, which date followed the mailing of the default notice (February 25, 1994) and entry of default judgment (March 8, 1994). 16. Plaintiff's counsel mailed Defendant a copy of the Praecipe and entry of default at its place of business on March 8, 1994. See Certificate of Service attached to said Praecipe. 17. Plaintiff disputes Defendant's allegation that it has a "clear defense to the Complaint in question in that there was no negligence on the part of Defendant" since it never sought to enter such defense in a timely manner despite having forty days after service of process in which to take such action. See paragraph 13 of Defendant's Petition. 18. Plaintiff disputes the proposed Answer attached to the sUbject Petition on the basis that it is conclusory and "boilerplate" in nature thereby lacking any clear defense and/or specificity of fact that there was no negligence by Defendant. 19. In fact, Defendant delayed an additional twenty- one days after entry of the default judgment before filing the subject Petition. See docketed filing date on Petition. 20. Defendant correctly avers that Plaintiff's counsel had entered into negotiations with an individual named Dean A. Lapson ("Lapson") who purported to be an outside claims adjuster for Defendant. 21. Plaintiff disputes the factual and/or legal relevance of Defendant's averment regarding Lapson. 22. In the event it is determined Plaintiff's counsel's communications with Lapson are factually and/or legally relevant, Plaintiff's counsel's initial written contact with Lapson was July 6, 1993. See attached letter at Exhibit B. 23. Lapson responded by letter dated July 13, 1993. See attached letter at Exhibit c. 24. Plaintiff's counsel's next wrote to Lapson on July 28, 1993. See attached letter at Exhibit D. 25. Lapson responded by letter dated August 8, 1993. See attached letter at Exhibit E. 26. Plaintiff's counsel next wrote to Lapson on three (3) separate occasions - August 18, September 30, and November 30, 1993. See attached letters at Exhibits F, G, and H. I I li I 27. In said letter dated November 30, 1993, Plaintiff's counsel warned Lapson that a Complaint had been drafted and would be filed within three weeks. 28. Plaintiff's counsel received no further contact, orally or in writing, from Lapson following his aforementioned letter dated August 8, 1993. 29. Upon receiving no further contact from Lapson, Plaintiff's counsel reasonably determined that Lapson was no longer administering the subject claim. 30. plaintiff specifically denies that she had any legal obligation or duty to notice Lapson of the Complaint or subsequent proceedings. 31. Plaintiff specifically denies that the failure to serve notice of the Complaint upon Lapson constitutes a reason to open or strike the default judgment under Pennsylvania law. 32. At all times relevant herein, Lapson never represented to Plaintiff or her counsel that he was authorized to accept service of process on any other legal proceedings on behalf of Defendant. 33. At all times relevant herein, Plaintiff and her counsel complied with the requirements concerning the commencement of an action, service of process, and notice and entry of a default judgment set forth in the Pennsylvania Rules of civil Procedure. WHEREFORE, Plailltiff prays this Honorable Court deny the Petition to Open or strike the default judgment and affirm said judgment and further order that the proceedings go forward to a trial on the issue of damages upon praecipe of either party. Respectfully submitted, LAWS, STARUCH & PISARCIK By: /!fJo: /, Je-e Michael J. JI:C:on, Esq. 20 Erford Road, Suite 215 Lemoyne, PA 17043 (717) 975-0600 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Michael J. Wilson, hereby certify that I served a copy of the foregoing Answer to Petition to Open Judgment upon the following by first-class United States mail, postage prepaid, on the date set forth below. Thomas G. Parisi, Esq. O'Pake Malsnee Orwig & parisi, P.C. 1815 Bernville Road Reading, PA 19601 Date: M,4'1 2- /I~if --;rid/? -- Michael J. Wilson, Esq. , 1994 VERIFICATION I, Michael J. Wilson, Esquire, state upon personal knowledge or information and belief that the averments (or denials) set forth in the Answer to Petition to Open or strike Judgement and Rule to Show Cause are true. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. Date: M.4 y 2- Iq9i I /%t.-f'~ It/d- Michael J. Wilson, Esquire ............................................. ..~.I_. ;.;UI,"~:J.".;.:t'lI..Jrl;.'" : I...,,, " ... -i ';,1 :.1.1 tI; . ~ I ,.: I . . . ; . . , ;.. .. -.: ;: :. ..1.',.' :,.. ....::.,.:l,.,...: ",,;; I": I: I:;; :.;: .;.. . .: 1.:;. ~~'...h....,.....~ .w.:. '."'0..4-.'f ;-1.,,_.'1_" . ". ..........,..-.-.......................... - SHERIff'S RETURN CCloIMONWEALW OF PENNSYLVANIA: COUNTY Of CLMBERLAND VS Kills Stores Company, t.d.b.a Hills Department Store In the Court of Common Pleas of Cumberland County, Pennsylvania No. 333 Civil Term, 1994 Complaint in Civil Action Law and Notice Mirian L. Herring Timothy Reitz , ~~lCIr Deputy Sheriff of Cunberland County, Pennsylvania, who being duly sworn according to law, says, that he served the within Complaint in Civil Action Law and Notice Hills Stores Company t/d/b/a upon Hi 11" Deoartment Store , the defendant, at 10,42 "'0 'clock A .M. EST / ~ on the 27th day of January , 19 94at - l431 Simoson ferry Road, Camp Hill . , Cunberland County, Service Supervisor Melvin Sheppard Customer for Hills Stores Company t/d/b/a Hill's Department Store Pennsylvania. by handing to a true and attested copy of the Complaint and Notice and at the same time directing his attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge 14.00 8.40 So answers: 2.00 24.40 Pd. by Atty. 1-27-94 R. Thomas Kline. Sheriff bY~~ Deputy ,Sheriff Sworn and subscribed to before me this day of 19 A.D. !'"'ruLllulluL~u...1 EXHIBIT A . ~ . Law.!, Staruch (I Pbarcik ^rrORNEYS ^T VlW w. scorr ST^RUCH CEMRO J. PIMRCIK. MICH^EL J. WILSON 20 ERfORO 1l0^0 SUITE 215 wayne, PmlU)lvania 17043 July 6, 1993 C71n 975-0800 fAll 1717l 975-3871 Hr. Dean Lapson Royal Insurance Co. 501 Holiday Drive pittsburgh, PA 15220 Re: Miriam L. Herring Claim No. 251GG00001632 Insured: Hills Department store Dear Mr. Lapson: On June 23, 1993, I had a telephone conversation with you concerning the claim of the above-referenced individual. As you are aware, our firm represents her in the settlement of this matter. During our conversation, you indicated that your company and Hills had recently evaluated the claim and that you needed to consult a file to determine what the store's position was concerning its disposition. You further informed me that Hills is self-insured and that your company has authority to settle up to an amount of $2,500.00. Furthermore, you indicated that although Hills is in bankruptcy proceedings, this particular claim is post-petition and, therefore, not affected by the automatic stay. Since I have not heard anything further from you, I have written this letter essentially to request your company's and Hills' position concerning possible settlement. If your client is willing to settle, I will consult my client and forward to you under separate correspondence a fair and reasonable settlement offer given the nature and extent of her injuries. If you have any questions or comments in the meantime, please call me. In the event you have already corresponded with me addressing the issues raised herein, I will respond to that correspondence. Very truly yours, Michael J. Wilson MJW:pdr cc Miriam L. Herring EXHIBIT B . rose 501 Holiday Drive Foster Plaza 04 Pittsburgh, PA 15220 Tel: 412 922-3740 Fax: 412 922-3163 , WI ~ I. , P (I , . , r J Rui/,,"UlutJons Smutte.""".., July 13, 1993 Mr. Michael J. Wilson Laws, Staruch & Plsarclk Attorneys at Law 20 Erford Road, Suite 215 Lemoyne, PA 17043 RE: OUR FILE: INSURED: CLAIMANT: DATE OF LOSS: 251-GG00001632 Hills Department Store Miriam L. Herring 11/28/92 Dear Mr. Wilson: Please be advised that I am In receipt of your correspondence, dated July 6, 1993, and thank you for the same. Kindly be advised that I have reviewed this file and have discussed It with the Hills people regarding settlement. My file reflects approximately $2,000 In unpaid medical bills. Please be advised that we view this case as very questionable liability. The facts would Indicate that your client caught her heel on a fixture, she tripped and the cart fell on top of her. Unfortunately, she sustained a fracture of the left pelvis. In review of the file, we are willing to extend an offer of $2,000 to settle this claim. I would appreciate It If you would get back to me, as soon as possible, after discussing this offer with your client. Also. I do not have a copy of the hospital bill and I would greatly appreciate It If you could send me a copy for our review. Of course, If there are any other medical bills that you have not sent to our attention, please do so at this time. I thank you In advance for your cooperation and look forward to speaking with you regarding settlement of this claim. Very truly yours, 4/(iV~ -' t:.;;; F. Lapson Claim Service Representative DFL : kd cc: Ms. Heidi Wellman Hills Stores Company EXHIBIT C Laws, Stan&ch (J Pisarcik AITORNEYS AT LAW W. SCOIT STARUCH CERARD J. PISARCII( MICHAEL J. WILSON 20 EIUOIlD ROAO SUITE 21~ Umo:iI1e, Penns,11I4IIia 17043 l1In 975'0000 FAX (7m 97~.3071 July 28, 1993 Dean F. Lapson Claims Service Representative RIse Incorporated 501 Holiday Drive Foster Plaza No. 4 Pittsburgh, PA 15220 Re: Your file: 251-GG00001632 Insured: Hills Department Store Claimant: Miriam L. Herring Date of Loss: November 28, 1992 Dear Mr. Lapson: I have received your letter dated July 13, 1993 in which you have offered $2,000.00 to settle any claim my client may have against your insured. I acknowledge your position concerning the question of liability in this matter, however, from what I have been told concerning the accident, I believe your client was negligent in allowing certain conditions to exist at the store which were the proximate cause of my client's fall and injury. Obviously, you are aware of the extent of my client's injuries, however, you may not be aware of the fact that my client was substantially bed ridden for a period of three months to allow her fractured pubis bone to heal. In addition, my client tells me that she is still not able to walk in the same manner she had prior to the accident, although it appears that the injury itself has healed correctly. I have discussed the matter with my client and she has authorized me to submit a counteroffer in the amount of $20,000.00 to settle the claim. I would appreciate a prompt response as to whether your company will accept the offer, continue to negotiate, or refuse to negotiate. Please call me if you wish to speak to me concerning settlement of the claim or if you have any other questions. Very truly yours, Michael J. Wilson MJW:pdr cc Miriam L. Herring Raymond Biley, Esq. EXHIBIT D Rise 501 Holiday Drive Foster Plaza #4 pittsburgh, PA l5220 Tel.: 4l2922-3740 800 245-2232 Fax: 412 922-3163 i,.~orpor"',J RiJ' InnULww.... oX"",*, lJ Cumulll"K August 8, 1993 Laws, staruch & Pisarcik Attorneys at Law ATTN: Michael J. Wilson 20 Erford Road, suite 215 Lemoyne, PA 17043 RE: CLAIMANT: OUR FILE NO.: DATE OF INJURY: INSURED: MARIN~ L. HERRING 25l/GG00001632/00 11/28/92 HILLS STORES COMPANY Dear Mr. wilson: Please be advised that I am in receipt of your correspondence dated July 28th, 1993 and thank you for the same. It is understood that my offer of two thousand dollars ($2,000.00) has been rejected. Please be advised that in a final attempt to resolve this matter I am willing to increase my offer to two thousand, five hundred dollars ($2,500.00). Kindly discuss this new offer with your client and advise me as to whether or not it is acceptable. Of course, in the meantime should you have any questions feel free to contact the undersigned. Very truly yours, I~ Dean F. Lapson Claims Service Rep. DFL/en EXHIBIT E Laws, Staruch (J Plsarcik ArrORNEYS AT lAW W scorr STARUCH CEIlARD J. PISARCIK MICHAEL J. WILSON 20 ERfORO ROAD SU ITE 215 Lemo:Yne. Penns,lmnIa 17043 (717) 875'0000 fAX (717) 875'3071 August 18, 1993 Dean F. Lapson Claims service Representative RIse Incorporated 501 Holiday Drive Foster Plaza #4 Pittsburgh, PA 15220 Re: Claimant: Miriam L. Herring Your File No.: 251/GG00001632/00 Date of Injury: 11/28/92 Insured: Hills stores Company Dear Hr. Lapson: This letter is in response to your letter dated August 8, 1993. Please be advised that my client does not accept your offer in the amount of $2,500.00. Her reasons for not accepting are clearly set forth in my letter to you dated July 28, 199J. In the continuing effort to attempt to settle this matter, however, my client would be willing to lower her offer ~o settle the claim. Please consider a counteroffer of $19,000.00. If you have any questions or comments, please call me. Very truly yours, Michael J. Wilson HJW:pdr cc Miriam L. Herring Raymond Bily, Esq. EXHIBIT F Law.., Stanu:h e Pisarcik ^TTOP.NEYS ^T LAW " W. SCOTT ST^P.UCH CEMP.D J, PIS^P.CIK. tolICH^EL J. WILSON 20 EIUOP.D IUl^D sUln 215 Lemo,ne. Penruylwnia 17043 11171075-0800 FAX (7.71 075-3871 september 30, 1993 Dean F. Lapson, Claims service Representative RISC Incorporated 501 Holiday Drive Foster Plaza #4 Pittsburgh, PA 15220 Re: Claimant: Miriam L. Herring Your File No.: 251/GG00001632/00 Date of Injury: 11/28/92 Insured: Hills stores Company Dear Hr. Lapson: I am writing as a follow up to my letter to you dated August 18, 1993, concerning settlement of the above-referenced matter. I would appreciate a response from you concerning whether Hills intends to make any attempt to settle the matter. I see no point in initiating litigation if the matter can be settled through negotiations over the next several weeks. If Hills does not want to settle or I do not receive some response from you continuing negotiations towards settlement, I will proceed to file suit. If you have any questions or comments, please call me. Very truly yours, Michael J. Wilson HJW:pdr cc Miriam L. Herring Raymond Bily, Esq. EXHIBIT G ~~~-~',- Laws, Smruch (/ PisaTcik ^TTOkNEYS ^T LAW W. SCOTT ST^kUCH CEMRD J. PIMkCl1t MICH^EL J. WILSON 20 EkFOkD kO^D SUITE 215 I.erno,ne. Penns,11IlIrIia 17043 C7ln 975-0000 FAA l7In 975-3871 November 30, 1993 Dean F. Lapson Claims Service Representative RISC, Inc. 501 Holiday Drive Foster Plaza #4 pittsburgh, PA 15220 Re: Claimant: Miriam L. Herring Your File No.: 251/GG00001632/00 Date of Injury: 11/28/92 Insured: Hills stores Company Dear Hr. Lapson: My last correspondence with you was dated September 30, 1993. In that letter I asked whether your insured was willing to make any attempt to settle the matter prior to litigation. I am writing to you now to inform you that a Complaint has been drafted in this matter and will be filed during the next three weeks. If you client wishes, it can still make a reasonable offer of settlement, which my client will seriously consider in order that both parties can avoid the time and expense of litigation. In reviewing the file, I note that our last offer was $19,000.00. I have received permission from my client to lower that offer to $17,500.00. Please consult with your client and let me know as soon as possible whether settlement is likely. Very t~uly yours, Michael J. Wilson cc: Miriam L. Herring Raymond Bily, Esq. MJW:tsk EXHIBIT H - :..! - ..: -=" en . or:: 4_~__ .... N >-,... ~t: ~- :,j.f I.~!~; ('. r _ J-'<!j~\. -.) '.. ::.^!:~:l . ..~ . t~.\ '-,: :.~' ~ < " c") -: ., r'...."'.....,. ',"N.""'" MA,{ 1 3 199~ tY- MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . . . vs. : No. 333-C-1994 . . HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . . . . . OBJECTION TO PRAECIPE TO LIST FOR ORAL ARGUMENT AND REQUEST FOR HEARING The Defendant, Hills Stores Company, by and through their counsel, Thomas G. Parisi, Esquire and O'Pake, Malsnee, orwig & u 0: Parisi, P.C. does hereby object iiI ii: if Argument in the above-captioned .. " !IE before this Honorable Court. a: o oj w Z III :t ~ oj " if b on '" !o! ~ ~ o ~ ~ to the Praecipe to List for Oral matter, and requests a hearing Il~ "-;yy,) (t. P c...:, l Thomas G. Par si, Esquire Attorney for Defendant CERTIFIC~TE OF SERVICE I, Thomas G. Parisi, hereby certify that I served a copy of the foregoing Objection to Praecipe to list for Oral Argument upon the following, by first-class United states mail, postage prepaid, on this date. Michael J. Wilson, Esq. Laws, Staruch & Pisarcik 20 Erford Road, Ste. 215 Lemoyne, PA 17043-1163 /hs<Yv., (\ ~ ~ .~ ~ Dated: May 9, 1994 ') ,,0 ','\\ ,~~ \\~i \1 t.."" ",t'. . . ,~~. '.~' ',.: '",\'1 " . . .... - ,~ ' rl' :3' . . ,I'" f~"'~\" ,: ..,......... frltAI\I'\,J,.... ,..-J uF ,,,,,uT..~N o I'L'v I '" I'\' , I~l ~..1 ('po 11., ,..;) "T J <) l) (''''' MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . : vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . . . : I, Melvin Shepperd, being duly sworn according to law declare the following to be true and correct. 1. I am a customer service representative for Hills Stores Company, t/d/b/a Hills Department Stores, at their store u located in at 3431 Simpson Ferry Road, Camp Hill, Cumberland ..: ii5 ~ County, Pennsylvania. 0; .. " !i ~assisting customers with regard to questions, w w z ~matters with which they may need assistance. " 2 W '" if ~ Stores Company t/d/b/a Hills Department Stores. ~. \I .. .. o ~ S owned or operated by Hills Stores Company, either under the 2. I am an hourly employee, whose duties including problems or other 3. At no time was I ever a management employee for Hills 4. At no time was I in charge of any place of business trade name of Hills Department stores or any other name. I never represented myself to be the person in charge of Hills Department Store. ,,' C[) {: :l~,/LtJ/(I}~-K/ ~elvin Shepperd . ( , Sworn and subscribed before me rc:{ . / t~~ d.y ~f Nflr . ~7(t(AJL~ , 1994 ':~:":,-'-- ..-. _u.. . J .. "",," 1If:'1.\ E. "', . ". """. I CAMP li:ll r."1,,'. .t." ..' ,....,)...,) I MY W:'~Js~r:1lj ~X;.l',; '. I. '{f., 1'itJ', f .' .-.----......------. a:. - ~ 'if, cO ~t: .,~ \-= ~ ". t~~; .~;'~ :. {: ..... : I ;' .~" .r 'A ~ :s:: .: I,: ~ ~~I . .~.(... :;J u 0:,.;.' '" (", f r lh.Df'r-J I T I .-V rI.I\II~r'\J . :, _. r r 'f\ I .. ~ T.:> <\f'I.v/'>Of',,)(~ ':).J \) (7 ' (Yf ,..J '........:...m"., MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW . . vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant I, Steven Heldman, being duly sworn according to law state that I am the store manager for the Hills Department Store located at 3431 simpson Ferry Road, Camp Hill, Cumberland County, Pennsylvania. At no time was Melvin Shepperd ever a manager, or a clerk U .: ~ or other person who at any time would be in charge of the place 1f ~ of business of Hills Department Store. ;: a: o ui LU ~ would be the person for the time being in charge of the Hills :IE ~ Department Store located at 3431 simpson Ferry Road, Camp Hill, 1f ~ Cumberland County, Pennsylvania, would be the following: '" u ~ ~ o ,. :5 The only other persons who at any time, in my absence, Norm Kievit Rodney Roadcap Brad Myers ~ '~.e;u1~,,~ Stev n Heldman '-' Sworn and suLscribed before me this .J3 r).. day of /vi 11'-/ 1 ')f;~ ~1(UA1U4J f, :.)i:.;,:: ~,[:\~ ., ,. \ ~~~ f;~;:[~B~~~.~~C~'i;~:'~':'~ c3~~Y- MY CC>>1M1~SICN EXrm~ 'UG. 2f, '~~ ~_._ ~ _____~ ___ '.p . ~__4_ , 1994 I I I i ~ ! - j a- lii cO ...~ "'- ..t ~... ....t .. =~!~~~: .!:. \...0-) r--I ~ = .' ....:, . u.7... <.>- MIRIAM L. HERRING, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW . . vs. : No. 333-C-1994 . . HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . : . . CERTIFICATE OF SERVICB I, Thomas G. Parisi, hereby certify that I served a copy of the foregoing Petition to Open Judgment upon the following, by certified mail, return receipt requested, on April 5, 1994, and ti 0: the ui it f .. " i a: o W w z Ul -J < - ::l! W " ~ b " ~ !l ~ ~ o ~ return receipt has been received by me. Michael J. Wilson, Esq. Laws, Staruch & Pisarcik 20 Erford Road, Ste. 215 Lemoyne, PA 17043-1163 Ih d"'rn q ';) (" ~ctJ"\~~ a; - ~ lrI ,.. ,..~ "">- . ~~ l.AJo~" ~ Z'~':z 4..100.._ ;-:ro ::.. ~-"-..r:. ..I .;;.. ~: )0.. . ,- ,t.fl ,.!.::..~ ,...I~.:r _.::)I41 ;:::.3;n.. t4.~ <:> - - ...., - <t: ... '""" - ....~"".... ,'ow.. .~.,; :~I.';..':.;; C,_:;;' , ,. ~ '.' - ... ..-..... . .........v........ '" . .. .... .,' .'.-,....,."... ~".;. ......~.. .;' '..... ,~..~., .'........._..............w............... SHERIFF'S RETURN aM1ONWEAL'Ill OF PENNSYLVANIA: COUNTY OF CLMBERLAND VS Hills Stores company, t.o.b.a Hills Department Store In the Court of Common Pleas of Cumberland County, Pennsylvania No. 333 Civil Term, 1994 Complaint in Civil Action Law and Notice Mirian L. Herring Timothy Reitz . ~hHijc.sdSclDr Deputy Sheriff of CUmberland County, Pennsylvania, who being duly sworn according to law, says, that he served the within Complaint in Civil Action Law and Notice Hills Stores Company t/d/b/a upon Hills Department Store ,thedefendant. at 10142 'o'clock A .M. EST / K~ on the 27th day of January 19 94at . - 1431 Simpson Ferry Road, Camp Hill , . Cumberland County. Service Supervisor Melvin Sheppard Customer for Hills Stores Company t/d/b/a Hill's Department Store Pennsylvania. by handing to a true and attested copy of the Complaint and Notice and at the same time directing his attention to the contents thereof and the "Notice to Plead" endorsed thereon. Sheriff's Costs: Docketing Service Affidavit Surcharge l4.00 8.40 2.00 24.40 Pd. by Atty. 1-27-94 So answers: Sworn and subscribed to before 1m R. Thomas Kline. Sheriff by :7;fi~Y,:L ~r Deputy, Sheriff thi5 JIAA- day ofel .(L,,, ~I 19 q'f A.D. C) ~l... 0 n1.dp,-,-, .wi?:.,. 7, t"rothullulCl.LY'-' O'PAKE, MALSNEE, ORWIG & PARISI, P.C. BY: THOMAS G. PARISI, ESQUIRE Identification No. 38512 1815 Bernville Road Reading, PA 19601 (215) 372-2424 ATTORNEY FOR: Defendant MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . . ENTRY O~ APPEARANCB ti 0: iii ~TO THE PROTHONOTARY: .. Cl ~ II: o ~Department Stores, the Defendant in the above case, and I z Ul -' ;designate 1815 Bernville Road, Reading, Berks County, aU ~pennsylvania, as the place where papers, process and notices may o ~ be served. \I ~ ~ o ~ ~ .. Enter my appearance for Hills Stores Company t/d/b/a Hills .1hdYY\G.~ ~. l>a....:l~ Thomas G. Paris : Esq. Attorney for Defendant DATED:.J1) "'^ c..J.- 7. ~ 1j ~ -g:. - "'- ,- Jc.~ .' ;;:; "'. ~ en ,.::> : '''-'.,-' . , '-.- - - = ~ -. = , . KIRIAN L. HERRING, Plaintiff I IN THB COURT OF COMHON PLBAS I CUJUlBRLAHD COUNTY, PBHIISYLVUlIA I I CIVIL ACTION - LAW I I NO. 333 CIVIL 1994 I I va. HILLS STORBS COMPANY, t/d/~/a HILLS DBPARTKBHT STORB, Defendant PRABCIPB FOR BNTRY OF DBFAULT JUDGKBNT To: Prothonotary, Court of Common Pleas, cumberland County Enter judgment in favor of Plaintiff and against Defendant above named who has neither pleaded to the complaint, which has been filed and as to which the time for pleading thereto has expired, nor appeared at any time in the action. It is certified that a written notice of intention to file this praecipe was mailed by certified mail return receipt requested on February 25, 1994 to the defendant after the default occurred and at least ten (10) days prior to the date of the filing of this praecipe. A copy of the notice of intention to this praecipe is attached hereto as Exhibit A. notice is attached as Exhibit B. An affidavit of mailing of the ;1/:.e./ -:r: te,/./ Michael J. Wilson Attorney for Plaintiff Laws, Staruch & pisarcik 20 Erford Road, Suite 215 Lemoyne, PA 17043 (717) 975-0600 Judgment entered. Damages to be assessed at trial. . (-- ^'t....4Lti4 Lot- r.I.CillH'... J.... Prothonotary , ::0 "'" -, = .".. CT) - = or:T :;:;! ~"I-o ~, .. 'l.l ! ~ ;- ..~ ..., ,,' ,~ ..:.;, . . MIRIAM L. HERRING, plaintiff IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA . . vs. CIVIL ACTION - LAW No. 333 civil 1994 . . HILLS STORES COMPANY, t/d/b/a HILLS DEPARTMENT STORE, Defendant IMPORTANT NOTICE TO: HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORE 3431 simpson Ferry Road camp Hill, PA 17011 DATE OF NOTICE: February 25, 1994 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT HAY BE ENTERED AGAINST YOU WITHOUT A HEARING, AND YOU HAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET HELP. Court Administrator 4th Floor, Cumberland county Courthouse S. Hanover Street CarliSle, PA 17013 (717) 240-6200 NOTICIA IMPORTANTE A: HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORE 3431 Simpson Ferry Road camp Hill, PA 17011 FECHA DE NOTICIA: February 25, 1994 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACTUA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA REGISTRADO CONTRA USTED SIN UNA AUDIENCIA Y USTED PODRIA PERDER SU PROPIEDAD 0 OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTICIA A SU ABOGADO EN EXHIBIT A By: l1f;.tLf-r. ltl,,i--- Michael J. Wilson, Esquire Attorney ID No. 52680 20 Erford Road, sutiet 215 Lemoyne, PA 17043 (717) 975-0600 SEGUIDA. SI USTED NO TIENE ABOGADO 0 NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABOGADO, VAYA 0 LLAHE A LA OFICINA ESCRITA ABAJO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. LAWS, STARUCH & PISARCIK Attorneys for plaintiff CERTIFICATE OF SERVICE I, Michael J. Wilson, Esquire, hereby certify that a true and correct copy of the foregoing IMPORTANT NOTICE was forwarded by certified mail, return receipt requested no. P 845 589 911, on this 25th day of February, 1994, to the following: Hills Department Store 3431 Simpson Ferry Road camp Hill, PA 17011 LAWS, STARUCH & PISARCIK /J7~1: tJ~ Michael J. Wilson, Esquire 20 Erford Road Lemoyne, PA 17043 (717) 975-0600 va. IN THB COURT 01' COMMON PLBAS I CUKBBRLAND COUNTY, PBHHSYLVUlIA I I I I I I CIVIL ACTION - LAW MIRIAM L. HBRRING, plaintiff . . HILLS STORBS COMPANY, t/d/b/. HILLS DBPARTKBHT STORB, Defendant NO. 333 CIVIL 1994 UI'IDAVIT Commonwealth of Pennsylvania Cumberland County Michael J. Wilson being duly sworn, deposes and says: I am the attorney for Plaintiff in the above-captioned action. On February 25, 1994 I personally mailed to the Defendant the notice of intention to file a praecipe for entry of default judgment in the subject action. I personally mailed said notice by certified mail return receipt requested. The original mailing receipt and original return receipt are attached to this Affidavit. I hereby affirm that the foregoing statements are true and correct to the best of my knowledge information and belief. l/!tw/;r !C{,e- Michael J. Wilson Pa. Atty. ID: 52680 ACKNOWLEDGMENT STATE OF PENNSYLVANIA : COUNTY OF <::.u........S.:lt:'r \c.....cl : ss On this, the 'Y, 'in day of \'\'\.("u ch , 199~, before me, the undersigned officer, personally appeared Michael J. Wilson known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. In witness whereof, I hereunto set my han~ and official . . . \.. ,-.-\----\ )~~~ ~P~b~~ . ..\v. .'(/ ; seal. NoI~1r..1i ~ Mariom L 5'''''1, NJ'.a'Y PlbIIc l.....,.'n. So",. Cun>l>,"",'ld Coun!y My~'OIl !:>;ircs Cec. 28, 1996 My commission Expires: . -.'.'. C.', ~,- .:.":::-.,,,">-\~- 5~1 *u..a.OJI.~;t~11 . ',', ~,f) FEB 2 8 19~' Itf'l. i l .1,',;J" . .....,..,.~ DOMESTIC IllTURN ,'.. -" , "... ",',/,'. ~ '>..,,,,,"4' _,', . r II 4 5 ,; 8 9 ; 11 ~ Certified Mall Receipt x:. No Insurance Coverage Provided __ 00 nol use lor Intornatlonal Moil ':'--::LD~':::'\ (Soo Reverse) Soot 10 e.. . Vel ....... C"lItltKJree ~IDelfVelyfH ...... ~ ~ " .., TOTAL o &f", ~ ''Ot!I1'I' CO) E of :r .... "'("':' ,-wI~,,_ 1 , " , I 'J 1/ 'I '"',I t., , .~" t~ .i.' ~- , I,:.j :'-',1 lll' , I- i" i. f LAWS, STARUCH & PISARCIK CERTIFICATE OF SERVICE I, Michael J. Wilson, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe was forwarded by u.s. mail, on this 8th day of March, 1994, to the following: Hills Department Store 3431 Simpson Ferry Road Camp Hill, PA 17011 4/tJ/::/:lf/JZ- Michael J. Wilson, Esquire 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 , 5 I): " ,j ~ " A JI _ Ot-:r.~~ _ I 'J.,. .,~ ,..,.. . = .. ". t::' :) ... ~ " '1\ -+ ~ . ~rJ .....;~ .,. J 0, J' ~".. r'" -.....-,. -. MIRIAM L HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACfION - LAW HILLS STORES COMPANY l/d/b/a HILLS DEPARTMENT STORES, Dcfcndant NO. 333.C.1994 IN RE: DEFENDANT'S PETITION TO OPEN OR STRIKE DEFAULT JUDGMENT BEFORE HOFFER. BAYLEY AND HESS. JJ. ORDER AND NOW, this 1 61 day of July, 1994, thc pctition of thc dcfcndant to opcn thc within judgmcnt is hcrcwith GRANTED. BY THE COURT, ~'A/L Kcvin A. Hcss, J. Michacl J. Wilson, Esquirc For thc Plaintiffs I ~..L ? / '-'/N-. A p. Thomas G. Parisi, Esquirc For thc Dcfcndant c~<V :rlm d a; - ':;~ ".: e.- ....; l.tl .-t >:'0 ,.., -' "-' -1 -' MIRIAM L HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACfION . LAW HILLS STORES COMPANY t/dlb/a HILLS DEPARTMENT STORES, Defendant NO. 333 CIVIL 1994 IN RE: DEFENDANT'S PETITION TO OPEN OR STRIKE DEFAULT JUDGMENT BEFORE HOFFER. BAYLEY AND HESS. JJ. OPINION AND ORDER Statement of Facts Plaintiff, Miriam L Herring. filed a negligence complaint against defendant Hills Department Stores on January 26, 1994. The next day the complaint WlIS served by handing it to Melvin Sheppard, a Customer Service Representative at Hills Department Store in Camp Hill, Pennsylvania. When no responsive pleading WllS filed within the twenty days allotted under Pa.R.C.P 1026(a). plaintiff, after nine days, filed and mailed the notice of praecipe for entry of default judgment on February 25, 1994, as required under Pa.R.C.P. 237.1(a). This notice was sent lIS certified mail and was received and signed for on February 26, 1994. by Melvin Sheppard at the same place of business. Defendant's claim adjustor notified defense counsel of the complaint on March 7. 1994. Defense counsel alleges that he telephoned plaintiffs counsel the same day and left a message stating that he would be entering his appearance and requesting an extension of time within which to file a responsive pleading. Plaintiffs counsel denies receiving any such message. The entry of appearance was filed on March 8. 1994, and notification of such was mailcd to plaintiffs counsel on the same day. Also on March 8, plaintiff filed a praecipe for entry of default judgment, one day after the ten-day limit for responding to the notice of praecipe for entry of NO. 333 CIVIL 1994 default judgment. Pa.R.C.P. 237.I(a).' Defense euunsel was not sent a copy of the praecipe because plaintiff was unaware of any attorney of record on the mailing date of March 8, 1994. Defense counsel later learned of tbe praecipe through correspondence from plaintifrs counsel and, thus, nnticipated receiving ufficial notice of the judgment. When no notice of the judgment wns received within twenty days, defense counsel reviewed the court docket entries and filed n petition to open or strike judgment on March 29, 1994. The petition was served on April 14, 1994, nnd plaintiff/respondent filed an answer, a rule to show c.'1use, and an order for argument on May 2, 1994. On May 9th, defendant/petitioner objceted to the order for argument under Pn.R,C.P. 209 and requested a hearing. Respondent objected to the request for hearing un May 16, 1994. Oral arguments were heard on May 25, 1994. A petition to strike judgment may be grantcd only when a fatal defect appears on the face of tbe record. Mnlakoffv, Zambar. Inc., 446 Pa. 503, 288 A.2d 819 (1972). An example of such a defect is failure to mail notice of praecipe of entry of default judgment. PennWest Farm Credit. ACA v. Hare, 410 Pa.Super. 422, 600 A.2d 213 (1991). Defendant argues that original service of process upon its customer service representative was improper under Pa.R.C.P. 424 and constitutes a fatal defect on tbe face of the record, The relcvant part of the rule states that scrvice upon a corporation can be made upon "the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation...." Pa.R.C.P. 424(2). Although the propriety of service is in dispute in this case, there is no fatal defect on the 'The rule states that the 10-day response timc commences with the mailing of the notice, not reception of the notice. Entry of plaintifrs praecipe on March 8. 1994, was 11 days from thc mailing of tbe notice on February, 25, 1994. and was not in violation of Rule 237.1. 2 ; ..."...._..m NO. 333 CIVIL 1994 face of the record. Striking the judgment is not proper when factors oul~ide the record must be considered in order to reach a conclusion. Frunklin Interiors v. Wall of FlIme Manallement Co.. 510 Pa. 597, 511 A.2d 761 (1986). A court genernlly will open a default judgment only when the petitioner a) promptly files the petition, b) shows a meritorious defense to the original claim for rclief, and c) provides a reasonable excuse for not responding to the original complaint. McFarland v, Whitman, 518 Pa. 496,498,544 A.2d 929, 930 (1988). Factual determinations with respect to whether petitioner satisfies these criteria arc made after the respondent answers the petition. Pa.R.C.P. 209 permits the court to assume avermenl~ of fact, depending upon the actions of the parties. The rule provides: Rule 209. Duty of Petitioner to Proceed After Answer Filed If, after the filing and service of the answer, the moving party docs not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on p~tition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule. 3 NO. 333 CIVIL 1994 Pa.R.C.P. 209. Generally, if the petitioner does not proceed within fifteen days after the answer is filed, respondent can then move for a rule to show cause. If, nfter n henring, the court mnkes the rule absolute, the petitioner then must proceed within fifteen dnys. Fnilure to proceed will allow the respondent to order the cause for nrgument, nnd the court will then deem as true nil properly pleaded responses in the nnswer. The responde lit here has failed to utilize the protection offered her by Rule 209 by listing the cause for argument without forcing the petitioner to either list the cause for argument or take depositions to contradict responde lit's answer. Since respondent listed the cause for argument based on the petition and answer ;lIone, the factual averments properly pleaded in the petition are accepted as true. Teodori v. Werner, 490 Pa. 58, 63, 415 A.2d 31, 33 (1980), The court thus accepl~ as true petitioner's factual allegation, inter alia, that Melvin Sheppard, in his capacity as a customer service representative, was a "non-management employee" of Defendant Hills Department Stores when he was served process on or about January 27, 1994. (Defendant's Petition to Open or Strike Judgment at paragraph 3) Promptness of filing is measured from the date petitioner receives notice of the entry of default judgment. Alba v, Urolol!V A~sociates of Kinl!ston, 409 Pa.Super. 406, 409, 598 A.2d 57, 58 (1991). There is no specific time frame for promptness because timeliness varies with the cirL'Umstances of the case, Barring unique circumstances, however, filing within one month of the judgment generally is considered prompt. 12 Standard Pennsylvania Practice 2d Section 71.53, at 80 (1983) citing numerous cases, If no actual notice of entry of judgment was received by the petitioner, the defendant will slltisfy the timeliness requirement if filing is prompt after receiving constructive notice of the judgment. Duffv v. Gerst, 286 Pa,Super. 523, 530, 429 A.2d 645, 651 (1981), 4 NO. 333 CIVIL 1994 Although the record is in contlict as to whether defendant Hills Department Stores received orricial notice of the judgment, defendant did receive constructive notice on or about March 8, 1994, through correspondence from plaintiffs counsell, Defense counsel allegedly was awaiting orricial notice of the cntry of judgment before acting upon the judgment. Defense counsel filed the petition when orricial notice wa.~ not received within twenty days. Since it is reasonable to await orricial notice of a judgment before acting upon it, the filing of the petition approximately twenty-one days after constructive notice of entry of judgment wn.~ prompt under the circumstances. Even if plaintiff could prove defendant did receive orrieial notice of judgment shortly after it was entercd, filing wn.~ still prompt under the general one-month rule of promptness. A petition to open default judgment must also set forth a meritorious defense in clear and precise terms. Central Penn Nat'l Bank v. Williams. 362 Pa.Supcr. 229,235, 523 A.2d 1166, 1169 (1987). A meritorious defense is one that can be cstablished at trial and is supported by facts worthy of a verdict in favor of the petitioner. Philadelphia v. Ncw Sun Rav Drul!. Inc.. 39 Pa.Comm. 111,394 A.2d 1311. Although the defense should be set forth with specific facts, the court need not try the case on its meril~ to determine whether to open a default judgment. Alexander v. Jesrnv Construction Co., 237 Pa.Super. 99, 104, 346 A.2d 566, 568 (1975). In the cn.~e at bar, defendant sets forth a clear statement in the petition denying ncgligcnce for plaintiffs injuries. Defendant then supports the defense with a proposed answer that denies eaeh specific claim of negligence and is a surricient showing of a meritorious defense. Prompt filing and a meritorious defense must be accompanied by a rcnsonable excuse for not responding to the original complaint if the petition to open is to be granted. In this regard, improper service can he a surricient ground for opening a judgment. 12 Pennsylvania Standard 5 . NO. 333 CIVIL 1994 Practice 2d Section 71.72, at 132 (1983) citing numerous cases. Defendant argues improper service under Pa.R.C.P. 424 as a reasonable excuse for its failure to file a responsive pleading. Rule 424 states: Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a in the action: (1) An executive officer, partner or trustee of the corporation or similar entity, or (2) the manal!er. clerk or other person for the time beinl! in eharl!e of anv rel!ular place of business or aetivity of the corporation or similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it. Pa.R.C.P. 424. (emphasis added). Plaintiff served original process on the corporation of Hills Department Stores by handing it to Melvin Sheppard, a customer service representative at defendant's place of business in Camp Hill, Pennsylvania. Accepting, as we must, the factual allegation in the petition that Mr. Sheppard was a non-management employee of the defendant, service upon him was improper. The defendant characterizes Mr. Sheppard, in his capacity as a customer service representative, as an hourly employee who was at no time a manager, clerk or other person in eharge of defendant's place of business. Parenthetically, Mr. Sheppard's sworn testimony repeal~ that he was at no time in charge of the store and that he never represented himself as such, (Affidavit of Melvin Sheppard at paragraph 4) Furthermore, the store manager in charge of the same store also stated that Mr. Sheppard was at no time in charge of the store and named three other persons who would be in charge of the store in the store manager's absence. (Affidavit of 6 NO. 333 CIVIL 1994 Stephen Heldman) Plaintiff argues that since the complaint was forwarded to defendant's main office. service was, in fact, made and the propriety of that service is irrelevant. This is not so/because jurisdiction of the court is depcndant upon proper service. Improper service is not merely a procedural defect which can be ignored when the defendant finally becomes aware that an action was commenced against him. Frveklund v. Way. 410 Pa.Super. 347,599 A.2d 1332 (1991 ). Finally, plaintiff cites McFarland v. Whitman, 518 Pa. 496,544 A.2d 929 (1988), in support of the argument that opening a judgment when defendant fails to obtain counsel within the twenty-day period to respond to a complaint would be a judicial abuse of discretion. McFarland is clearly inapposite. In McFarland, service was proper and the defendant's delay was not justified. Here service was improper and helps to explain the delay which led to the default judgment. The petitioner has provided a reasonable excuse for not responding to the original complaint, has asserted a meritorious defense and has moved promptly to obtain the relief which we now grant. ORDER II.! AND NOW, this day of July, 1994, the petition of the defendant to open the within judgment is herewith GRANTED. BY THE COURT, 7 / v. IN THB COURT or COMMON PLBAS CUKBBRLAHD COUIITY, PBHIISYLVAHIA CIVIL ACTION-LAW KIRIAN L. HERRING, plaintiff HILLS STORBS COKPANY, t/d/b/. HILLS DBPARTMBHT STORB, No. 333 C 19!14 Defendant KOTION ~OR RBCONSIDBRATION OP ORDBR GRANTING PBTITION TO OPBH JUDGMBHT OR, ALTBRHATIVBLY, APPLICATION POR AKBHDKBHT or ORDBR GRANTING PBTITION TO OPBH JUDGMBNT IN ACCORDANCB WITH 42 P.S. S702(b) AND Pa.R.A.P. 1311(b) AND STAY OP PROCEEDINGS AND NOW comes Plaintiff by and through her attorney Michael J. Wilson and moves this court to reconsider its prior Order dated July 1, 1994 by Judges Hess, Hoffer and Bayley opening the default judgment entered by Plaintiff or, in the alternative, amend its Order in accordance with 42 P.S. S702(b) and Pa. R.A.P. 1311(b) in order that Plaintiff may seek permission to appeal said Order to superior Court; AND IN SUPPORT THEREOF states that: MOTION POR RECONSIDERATION 1. In its Opinion accompanying the subject Order, the Court allowed the opening of the default judgment on the basis of accepting as true all factual averments properly pleaded in the Petition since the Respondent Plaintiff listed the matter for oral argument without utilizing the protection offered by Pa. R.C.P. 209. See Opinion at p.4. 2. The Court reasoned that the Petition's facts should be accepted as true, rather than the facts set forth in the Answer based upon the holding in Teodori v. Werner, 490 Pa. 58, 63, 415 A.2d 31, 33 (1980). 3. In its opinion, the Court specificallY accepted as true, Petitioner's allegation at paragraph 3 of the Petition that Melvin Shepperd was a "non-management employee" of petitioner Defendant. See opinion at p. 4. 4. Plaintiff respectfully asserts that the Court improperly relied upon Affidavits of Melvin Shepperd and stephen Heldman which were not part of the Petition as filed on March 29, 1994. 5. Said Affidavits were filed immediately prior to oral argument on May 25, 1994 at 8:57 a.m. and were first furnished to counsel and the Court at argument. 6. During argument the Court explicitly stated that said Affidavits, for the reasons set forth above, would not be considered for the purpose of determining fact. 7. Said Affidavits stated that in addition to Melvin Shepperd being a non-management employee he was also never a manager, clerk or other person in charge of the subject store when the Sheriff served process. 8. On that basis the Court agreed with Petitioner Defendant who had argued service was improper under Pa. R.C.P. 424(2) and, therefore, there was a reasonable excuse for failing to file a responsive pleading. See opinion at p. 6. 9. The Court further opined that because service of original process upon Melvin Shepperd was improper, the delay of Petitioner was explicable and thus Petitioner had a reasonable excuse. Id. at pp. 6-7. 10. Plaintiff contends that only the following paragraphs of the Petition are dispositive of the issues raised in this Motion and the subject Petition and are deemed to be factually true as cited in the Court's opinion and conceded by Plaintiff herein: PETITION TO OPEN OR STRIKE JUDGMENT The Petition of Defendant Hills stores Company, by and through their attorneys Thomas G. Parisi, Esquire and O'Pake, Malsnee, orwig & Parisi, P.c., respectfully represents: 1. Plaintiff herein filed a Complaint in the above-captioned matter on or about January 26, 1994. 2. The Complaint was served on or about January 27, 1994, by handing to Mr. Melvin Shepperd, a non-management employee of Defendant, Hills Stores company. 3. The Complaint in question was forwarded to Defendant's main office in canton, HA, and subsequently forwarded to a claims administration firm. 4. By telephone call of March 7, 1994, the claims adjustment firm had notified counsel, Thomas G. Parisi, Esquire, of the complaint, and indicated all materials were being forwarded, but that the Complaint was already outside of the 20 day period. 11. In paragraphs 1-4, Petitioner essentially makes the following statements of fact: (a) service of the Complaint was made one day after the Complaint was filed; (b) service was made upon Melvin Shepperd; (c) Melvin Shepperd is a non-management employee of Petitioner Defendant; (d) following service, the Complaint was forwarded to Petitioner's main office in Massachusetts on an unknown date; (e) following its receipt in Massachusetts, the Complaint was then forwarded to an unidentified claim administration firm on an unknown date; and (f) on March 7, 1994, 39 days after the date of service, the claim administration firm first notified Petitioner's counsel of record of the complaint and forwarded the relevant materials to counsel. 12. Petitioner, in said Petition filed on March 29, 1994, at no time raised or preserved a factual issue, for determination pursuant to Pa.R.C.P. 209, concerning the propriety of service of process under Pa. R.C.P. 424. 13. Petitioner, in said Petition filed on March 29, 1994, at no time raised or preserved a factual issue, for determination pursuant to Pa. R.C.P. 209, concerning whether Melvin Shepperd was not otherwise a "clerk or other person for the time being in charge of any regular place of business. of the corporation" in accordance with Pa. R.C.P. 424 14. Plaintiff Respondent respectfully contends that the Court had no basis to decide a factual issue concerning propriety, or lack thereof, of service of process on Defendant Petitioner, since the issue was not raised or preserved in the Petition as set forth above. 15. Plaintiff Respondent alternatively contends that the Court had no factual dispute for determination pursuant to Pa.R.C.P. 209 on the issue of whether Melvin Shepperd must otherwise be deemed to be a clerk or other person for the time being in charge of Defendant Petitioner's place of business at the time of service of process by the sheriff since the Affidavits setting forth such factual contentions were improperly before the Court. 16. Plaintiff Respondent alternatively contends that even if service of process is deemed improper in this instance, as a matter of law, such a technical defect is not a reasonable excuse to permit the opening of the default judgment. WHEREFORE, Plaintiff Respondent requests this Court reconsider its prior Order and issue a revised Order denying the Petition to Open Judgment for those reasons set forth hereinabove. APPLICATION POR AMENDMENT OP ORDER AND STAY OP PROCEEDINGS 17. In the event the Court should deny the Motion to Reconsider, Plaintiff Respondent applies for an amendment of the subject Order to reflect that such Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the matter in accordance with 42 P.S. S702(b). 18. In the event the court should amend its Order as requested herein, Plaintiff Respondent requests a stay of proceedings pending disposition of a petition for permission to appeal to the superior Court. WHEREFORE, Plaintiff Respondent requests this Court grant the application as set forth hereinabove. Respectfully submitted, LAWS, STARUCH & PISARCIK By: I/!~ (fit/' Michael J. W lson 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 CERTIFICATE OF SERVICE I, Michael J. wilson, Esquire, hereby certify that a true and correct copy of the foregoing MOTION FOR RECONSIDERATION OF ORDER GRANTING PETITION TO OPEN JUDGMENT OR, ALTERNATIVELY, APPLICATION FOR AMENDMENT OF ORDER GRANTING PETITION TO OPEN JUDGMENT IN ACCORDANCE WITH 42 P.S. S702(b) AND Pa. R.A.P. 1311(b) AND STAY OF PROCEEDINGS was forwarded by facsimile and United States first class mail, postage prepaid on this 1st day of August, 1994, to the following: Thomas G. parisi, Esq. O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 fax: (610) 372-4574 LAWS, STARUCH & PISARCIK /!/tvl;-' tJ~ Michael J. Wilson, Esquire '-' .- ~ :z::- "'- ~ '=' ~ - .... "'.... .....- .... I': 2) i.:. . ~~~.' -~(,. '" ~~:'..(, ... ........'>. ;;'-J-'-' ,...,;.,. ,", " ., .;1.1,'" ~~ I .... g ""'" - ' '.' AU 6 0 1 199~ J.;l/ HIRIAN L. BERRING, Plaintiff I IN THE COURT OF COMMON PLBAS : CUKBERLAHD COUHTY, PEHHSYLVUlIA I I CIVIL ACTION-LAW I I : No. 333 C 199. : I v. HILLS STORES COMPANY, t/d/b/. BILLS DEPARTHBHT STORE, Defendant ORDER AND NOW after review of Plaintiff'S Motion to Shorten Response Time of Defendant Hills Stores Company, etc. IT IS HEREBY ORDERED that Defendant shall have fifteen (15) days following the filing date of said Motion and the Motion for Reconsideration to respond accordingly. AND IT IS FURTHER ORDERED that argument on the issues raised therein shall be scheduled immediately thereafter by the Court. Dated: August , 1994 J. --%~ ~ ~M- ~)/J .~ -c or.;Vnfi p >4J{fJ?1--Mw. AUG 011994 J'"'-' HIRIAM L. BBRRING, Plaintiff I IN THB COURT OF COMMON PLBAS : CUMBBRLAND COUNTY, PBNNSYLVANIA I I CIVIL ACTION-LAW I v. HILLS STORES COMPANY, t/d/b/a BILLS DBPARTHBNT STORB, . . : No. 333 C 1994 . . Defendant I MOTION TO SHORTBN RBSPONSB TIllE OF DBFBNDANT AND TO BXPBDITB ARGUKBHT RB MOTION FOR RBCONSIDBRATION OF ORDBR GRANTING PBTITION TO OPBN JUDGMBNT OR, ALTBRHATIVELY, APPLICATION FOR AMBNDMBNT OF ORDER GRANTING PBTITION TO OPEN JUDGHBNT IN ACCORDANCB WITH 42 P.S. S702(b) AND Pa.R.A.P. 1311(b) AND STAY OF PROCBBDINGS AND NOW comes Plaintiff by and through her attorney Michael J. Wilson and moves this Court to shorten the response time ordinarily granted to a responding party and to expedite argument on the Motion for Reconsideration, etc. filed simultaneously with this Motion; AND IN SUPPORT THEREOF states that: 1. Plaintiff files this Motion in conjunction with her Motion for Reconsideration of Order Granting Petition to Open Judgment etc. 2. In said Motion, Plaintiff has also requested, in the alternative, an Application for Amendment of the prior Order dated July 1, 1994 in accordance with 42 P.S. S702(b) and Pa. R.A.P. 1311(b). 3. Said Application must be acted upon by the Court within 30 days pursuant to Rule 1311(b) thereby shortening the period of time in which the court may consider and decide the said Motion to the same thirty day period. 5. Plaintiff has transmitted and will continue to 4. Plaintiff believes that a 15-day response time from the date of filing said Motion is adequate and will not prejudice Defendant. transmit her pleadings and related papers, including a brief, to counsel for Defendant by way of facsimile transmission and u.s. mail for the purpose of ensuring said counsel the maximum amount of response time should the Court grant this Motion. WHEREFORE, plaintiff requests the Court shorten the response time for the Motion for Reconsideration, etc. to a period not to exceed 15 days from the date of filing said Motions and that argument on said Motion be scheduled immediately thereafter. Respectfully submitted, LAWS, STARUCH & PISARCIK /l1JJ": t/~ Michael J. Wilson, Esquire 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 , . CERTIFICATE OF SERVICE I, Michael J. Wilson, Esquire, hereby certify that a true and correct copy of the foregoing MOTION TO SHORTEN RESPONSE TIME OF DEFENDANT AND TO EXPEDITE ARGUMENT RE MOTION FOR RECONSIDERATION OF ORDER GRANTING PETITION TO OPEN JUDGMENT OR, ALTERNATIVELY, APPLICATION FOR AMENDMENT OF ORDER GRANTING PETITION TO OPEN JUDGMENT IN ACCORDANCE WITH 42 P.S. S702(b) AND Pa. R.A.P. 1311(b) AND STAY OF PROCEEDINGS was forwarded by facsimile and United States first class mail, postage prepaid on this 1st day of August, 1994, to the following: Thomas G. Parisi, Esq. O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 fax: (610) 372-4574 LAWS, STARUCH & PISARCIK !lrtJ:V: (/JZ Michael J. Wilson, Esquire ,AUG ~ 11894 d"'- MIRIAM L. HBRRING, Plaintiff I IN THE COURT OF COKKON PLBAS I CUKBBRLAHD COUIITY, PBHHSYLVUlIA I I CIVIL ACTION-LAW I I I No. 333 C 1994 I I v. HILLS STORBS COMPANY, t/d/b/. HILLS DBPARTKBNT STORB, Defendant ORDBR AND NOW after review of Plaintiff's Motion to Shorten Response Time of Defendant Hills Stores company, etc. IT IS HEREBY ORDERED that Defendant shall have fifteen (15) days following the filing date of said Motion and the Motion for Reconsideration to respond accordingly. AND IT IS FURTHER ORDERED that argument on the issues raised therein shall be scheduled immediately thereafter by the Court. Dated: August , 1994 J. Defendant I IN THB COURT OF COKHON PLBAS I CUMBERLAND COUNTY, PEHHSYLVAHIA I I CIVIL ACTION-LAW I I I No. 333 C 1"4 I I MIRIAM L. HERRING, Plaintiff v. HILLS STORBS COMPANY, t/d/b/. HILLS DBPARTKBHT STORB, MOTION TO SHORTBH RESPONSB TIMB OF DBFBNDAHT AND TO BXPBDITB ARGUHBNT RB MOTION FOR RBCONSIDBRATION OF ORDIR GRANTING PBTITION TO OPBN JUDGMENT OR, ALTBRHATIVBLY, APPLICATION FOR AMENDMBNT OF ORDIR GRANTING PETITION TO OPBN JUDGHBHT IN ACCORDAHCB WITH 42 P.S. S702(b) AND Pa.R.A.P. 1311(b) AND STAY OF PROCEBDINGS AND NOW comes Plaintiff by and through her attorney Michael J. wilson and moves this Court to shorten the response time ordinarily granted to a responding party and to expedite argument on the Motion for Reconsideration, etc. filed simultaneously with this Motion; AND IN SUPPORT THEREOF states that: 1. Plaintiff files this Motion in conjunction with her Motion for Reconsideration of Order Granting Petition to Open Judgment etc. 2. In said Motion, Plaintiff has also requested, in the alternative, an Application for Amendment of the prior Order dated July 1, 1994 in accordance with 42 P.S. S702(b) and Pa. R.A.P. 1311(b). 3. Said Application must be acted upon by the Court within 30 days pursuant to Rule 1311(b) thereby shortening the period of time in which the court may consider and decide the said Motion to the same thirty day period. > 4. plaintiff believes that a 15-day response time from the date of filing said Motion is adequate and will not prejudice Defendant. 5. Plaintiff has transmitted and will continue to transmit her pleadings and related papers, including a brief, to counsel for Defendant by way of facsimile transmission and u.s. mail for the purpose of ensuring said counsel the maximum amount of response time should the Court grant this Motion. WHEREFORE, Plaintiff requests the Court shorten the response time for the Motion for Reconsideration, etc. to a period not to exceed 15 days from the date of filing said Motions and that argument on said Motion be scheduled immediately thereafter. Respectfully submitted, LAWS, STARUCH & PISARCIK jJ;J~ U/~ Michael J. Wilson, Esquire 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 CERTIFICATE OF SERVICE I, Michael J. wilson, Esquire, hereby certify that a true and correct copy of the foregoing MOTION TO SHORTEN RESPONSE TIME OF DEFENDANT AND TO EXPEDITE ARGUMENT RE MOTION FOR RECONSIDERATION OF ORDER GRANTING PETITION TO OPEN JUDGMENT OR, ALTERNATIVELY, APPLICATION FOR AMENDMENT OF ORDER GRANTING PETITION TO OPEN JUDGMENT IN ACCORDANCE WITH 42 P.S. S702(b) AND Pa. R.A.P. 1311(b) AND STAY OF PROCEEDINGS was forwarded by facsimile and United States first class mail, postage prepaid on this 1st day of August, 1994, to the following: Thomas G. Parisi, Esq. o'pake, Malsnee, orwig & parisi, P.C. 1815 Bernville Road Reading, PA 19601 fax: (610) 372-4574 LAWS, STARUCH & PISARCIK aJ~ t/~ Michael J. Wilson, Esquire KIRIAN L. HERRING, plaintiff : IN THB COURT OP COMMON PLEAS I CUKBBRLAHD COUNTY, PBHHSYLVAHIA I I CIVIL ACTION-LAW v. '1J1O ""' ... . . :: '. BILLS STORBS COMPANY, t/d/b/a HILLS DBPARTMBNT STORB, I I No. 333 C 1994 ,. . . Defendant . . 1''' - , L. ". CJ MOTION POR RBCONSIDERATION OP ORDBR GRANTING p~TiTION:. TO OPBH JUDGMBHT OR, ALTBRNATIVELY, APPLICATIq)l d: ~OR MBHDMBHT OP oaoBR GRANTING PBTITION TO o~.. ...a JUDGMBHT IN ACCORDANCE WITH 42 P.S. 5702 (b) AND ..:.. pa.R.A.P. 1311(b) AND STAY OP PROCBBDINGS AND NOW comes plaintiff by and through her attorney Michael J. wilson and moves this court to reconsider its prior Order dated July 1, 1994 by Judges Hess, Hoffer and Bayley opening the default judgment entered by Plaintiff or, in the alternative, amend its Order in accordance with 42 P.S. S702(b) and Pa. R.A.P. 1311(b) in order that Plaintiff may seek permission to appeal said Order to superior Court; AND IN SUPPORT THEREOF states that: MOTION FOR RBCONSIDBRATION 1. In its Opinion accompanying the subject Order, the Court allowed the opening of the default judgment on the basis of accepting as true all factual averments properly pleaded in the Petition since the Respondent plaintiff listed the matter for oral argument without utilizing the protection offered by Pa. R.C.P. 209. See opinion at p.4. 2. The Court reasoned that the Petition's facts should be accepted as true, rather than the facts set forth in the Answer based upon the holding in Teodori v. Werner, 490 Pa. 58, 63, 415 A.2d 31, 33 (1980). 3. In its opinion, the Court specifically accepted as true, Petitioner's allegation at paragraph 3 of the Petition that Melvin Shepperd was a "non-management employee" of Petitioner Defendant. See opinion at p. 4. 4. Plaintiff respectfully asserts that the Court improperly relied upon Affidavits of Melvin Shepperd and Stephen Heldman which were not part of the Petition as filed on March 29, 1994. 5. Said' Affidavits were filed immediately prior to oral argument on May 25, 1994 at 8:57 a.m. and were first furnished to counsel and the Court at argument. 6. During argument the Court explicitly stated that said Affidavits, for the reasons set forth above, would not be considered for the purpose of determining fact. 7. Said Affidavits stated that in addition to Melvin Shepperd being a non-management employee he was also never a manager, clerk or other person in charge of the subject store when the Sheriff served process. 8. On that basis the Court agreed with Petitioner Defendant who had argued service was improper under Pa. R.C.P. 424(2) and, therefore, there was a reasonable excuse for failing to file a responsive pleading. See Opinion at p. 6. 9. The Court further opined that because service of original process upon Melvin Shepperd was improper, the delay of Petitioner was explicable and thus Petitioner had a reasonable excuse. Id. at pp. 6-7. .-- 10. Plaintiff contends that only the following paragraphs of the petition are dispositive of the issues raised in this Motion and the subject Petition and are deemed to be factually true as cited in the Court's Opinion and conceded by Plaintiff herein: PETITION TO OPEN OR STRIKE JUDGMENT The Petition of Defendant Hills Stores company, by and through their attorneys Thomas G. Parisi, Esquire and O'Pake, Malsnee, orwig & Parisi, P.c., respectfully represents: 1. Plaintiff herein filed a Complaint in the above-captioned matter on or about January 26, 1994. 2. The Complaint was served on or about January 27, 1994, by handing to Mr. Melvin Shepperd, a non-management employee of Defendant, Hills Stores Company. 3. The complaint in question was forwarded to Defendant's main office in Canton, HA, and subsequently forwarded to a claims administration firm. 4. By telephone call of March 7, 1994, the claims adjustment firm had notified counsel, Thomas G. Parisi, Esquire, of the Complaint, and indicated all materials were being forwarded, but that the Complaint was already outside of the 20 day period. 11. In paragraphs 1-4, Petitioner essentially makes the following statements of fact: (a) service of the Complaint was made one day after the Complaint was filed; (b) service was made upon Melvin Shepperd; (c) Melvin Shepperd is a non-management employee of Petitioner Defendant; (d) following service, the Complaint was forwarded to petitioner's main office in Massachusetts on an unknown date; (e) following its receipt in Massachusetts, the Complaint was then forwarded to an unidentified claim administration firm on an unknown date; and (f) on March 7, 1994, 39 days after the date of service, the claim administration firm first notified Petitioner's counsel of record of the Complaint and forwarded the relevant materials to counsel. 12. Petitioner, in said Petition filed on March 29, 1994, at no time raised or preserved a factual issue, for determination pursuant to Pa.R.C.P. 209, concerning the propriety of service of process under Pa. R.C.P. 424. 13. Petitioner, in said Petition filed on March 29, 1994, at no time raised or preserved a factual issue, for determination pursuant to Pa. R.C.P. 209, concerning whether Melvin Shepperd was not otherwise a "clerk or other person for the time being in charge of any regular place of business. . . of the corporation" in accordance with Pa. R.C.P. 424 14. plaintiff Respondent respectfully contends that the Court had no basis to decide a factual issue concerning propriety, or lack thereof, of service of process on Defendant Petitioner, since the issue was not raised or preserved in the Petition as set forth above. 15. plaintiff Respondent alternatively contends that the Court had no factual dispute for determination pursuant to Pa.R.C.P. 209 on the issue of whether Melvin Shepperd must otherwise be deemed to be a clerk or other person for the time being in charge of Defendant Petitioner's place of business at the time of service of process by the sheriff since the Affidavits setting forth such factual contentions were improperly before the Court. 16. Plaintiff Respondent alternatively contends that even if service of process is deemed improper in this instance, as a matter of law, such a technical defect is not a reasonable excuse to permit the opening of the default judgment. WHEREFORE, Plaintiff Respondent requests this Court reconsider its prior Order and issue a revised Order denying the Petition to open Judgment for those reasons set forth hereinabove. APPLICATION POR AMENDMENT OF ORDER AND STAY OF PROCEEDINGS 17. In the event the Court should deny the Motion to Reconsider, Plaintiff Respondent applies for an amendment of the subject Order to reflect that such Order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the Order may materially advance the ultimate termination of the matter in accordance with 42 P.S. S702(b). 18. In the event the court should amend its Order as requested herein, Plaintiff Respondent requests a stay of proceedings pending disposition of a petition for permission to appeal to the Superior Court. WHEREFORE, Plaintiff Respondent requests this Court grant the application as set forth hereinabove. Respectfully submitted, LAWS, STARUCH & PISARCIK By: 11lJG-: //~r Michael J. W~lson 20 Erford Road, Suite 215 Lemoyne, PA 17043 (717) 975-0600 /IIJ~ W~ Michael J. Wilson, Esquire CERTIFICATE OF SERVICE I, Michael J. Wilson, Esquire, hereby certify that a true and correct copy of the foregoing MOTION FOR RECONSIDERATION OF ORDER GRANTING PETITION TO OPEN JUDGMENT OR, ALTERNATIVELY, APPLICATION FOR AMENDMENT OF ORDER GRANTING PETITION TO OPEN JUDGMENT IN ACCORDANCE WITH 42 P.S. S702(b) AND Pa. R.A.P. 1311(b) AND STAY OF PROCEEDINGS was forwarded by facsimile and united States first class mail, postage prepaid on this 1st day of August, 1994, to the following: Thomas G. parisi, Esq. O'Pake, Malsnee, Orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 fax: (610) 372-4574 LAWS, STARUCH & PISARCIK MIRIAM L. HBRRING, plaintiff I IN THB COURT or COMKON PLBAS I CUKBBRLAHD COUNTY, PBHHSYLVAHIA I I CIVIL ACTION-LAW I I I No. 333 C 1994 I I v. HILLS STORBS COKPANY, t/d/~/a HILLS DBPARTKINT STORB, Defendant DRIBr IN SUPPORT or MOTION ~OR RBCONSIDBRATION or ORDBR GRANTING PBTITION TO OPBN JUDGKINT OR, ALTBRNATIVBLY, APPLICATION rOR AMBHDKBNT or ORDBR GRANTING PBTITION TO OPBN JUDGKBHT IN ACCORDAHCB WITH 42 P.S. S702(~) AND Pa.R.A.P. 1311(b) AND STAY or PROCBBDINGS STATBKBNT or rACTS On March 29, 1994, Defendant, Hills stores Company, filed a Petition to Open or strike Judgment. On May 4, 1994, Plaintiff filed her Answer to Petition to Open or strike Judgment and a Praecipe to List for Oral Argument. After initially objecting to oral argument and requesting a hearing, Defendant appeared at Argument Court and consented to going forward. Argument Court was held on May 25, 1994, with Judges Hoffer, Bayley and Hess presiding. On July 1, 1994, Judge Hess authored an Opinion and Order granting Defendant's Petition to Open while denying the Petition to strike. Essentially the opinion underlying the Order concluded, inter AliA, that the averments of the Petition, as deemed to be factually true, conclusively demonstrated that improper service was made on Defendant and, therefore, such service constitutes a reasonable excuse for Defendant's failure to file a timely responsive pleading. The Opinion also considered Affidavits, which were not part of the Petition and not entered on the docket until the date of argument, to support its factual determination that service was improper. ISSUBS 1. Whether the Petition to Open Default Judgment contained an averment which properly raised a factual issue concerning the propriety, or lack thereof, of service of process on Defendant Petitioner. 2. Whether the Petition to Open Default Judgment contained an averment which properly raised a factual dispute, for determination pursuant to Pa.R.C.P. 209, concerning whether Melvin Shepperd was a clerk or other person for the time being in charge of Defendant Petitioner's place of business at the time of service of process by the Sheriff. 3. Whether the service of process in this instance, even if deemed improper, is such a technical defect so as not to constitute a reasonable excuse. DISCUSSION 1. Whether the Petition to Open Default Judgment contained an averment which properly raised a factual issue concerning the propriety, or lack thereof, of service of process on Defendant Petitioner. Plaintiff contends that her default judgment should not 2 have been opened on the basis of improper service constituting a reasonable excuse even when the averments of the Petition are accepted as true pursuant to the rule enunciated in Teodori v. Werner, 490 Pa. 54, 415 A.2d 31 (1980). The reasoning for Plaintiff's contention is that the Petition, on its face, fails to raise or preserve an issue of fact concerning the impropriety of service. The specific averments quoted in the Motion for Reconsideration are the only facts in which Petitioner sets forth any explanation of the events surrrounding service of process. Petitioner never contends that service was improper, never contends that service was defective in some manner, and never contends that it had not received actual notice if the claim against it. At best, Petitioner (hereinafter "Hills") states that its employee upon whom service was made, Melvin Shepperd, was a non-management employee. Hills never makes it clear elsewhere in the Petition what relevance that fact has with regard to opening the default judgment. Even when accepted as true pursuant to Teodori that Shepperd was not a manager, it only begs the question of its relvance to opening the default judgment. At worst, Hills alleges other facts, which must be accepted as true if Teodori is to be applied, that it had received actual notice of the suit and had waited unitl the day before judgment was entered to even notify its counsel. There is no subsequent allegation explaining why, despite notice, such delay was experienced. There is no averment of fact to draw a 3 connection between service upon Shepperd, in his capacity as a non-management employee, and the failure of Hills to timely respond. Just as importantly, Hills never contended that Shepperd was not a clerk or other person in charge of its place of business when the Sheriff served process. By not specifically denying that Shepperd was not a clerk or other person in charge, in the Petition, that issue of fact was never in dispute. Hills only raised the aforementioned factual issue in Affidavits hastily prepared and presented at oral argument of the petition and Answer. In fact, the Affidavits were not filed until minutes before oral argument commenced. The supreme court has held that in instances where a petition to open a default judgment fails to contain a justifiable explanation why a defendant failed to comprehend the applicable time limits and respond in a timely fashion a default judgment should not be opened. Schultz v. Erie Insurance Exchanae, 505 Pa. 90, 93, 477 A.2d 471, ___ (1984). The rule applies even assuming the averments of the subject petition are assumed to be true. Id. Furthermore, refusing to open would not be an abuse of discretion under such circumstances. 505 Pa. at 94, 477 A.2d at ___' The instant Petition read alone and in its entirety contains no legally relevant factual explanation, let alone a justifiable one, to explain the failure to timely respond. The Order opening the default judgment should be reversed. 4 2. Whether the Petition to Open Default Judgment contained an averment which properly raised a factual dispute, for determination pursuant to Pa.R.C.P. 209 concerning whether Melvin Shepperd was a clerk or other person for the time being in charge of Hill's place of business at the time of service of process by the sheriff. For Pa.R.C.P. 209 to be applicable, there must exist disputed factual issues. DiNardo v. Central Penn Air Services, 358 Pa.Super. 75, 79, 516 A.2d 1187, ___ (1986). The Court has opened the subject default judgment on the basis that service was improper. The service was held to be improper because the Court found that as a matter of fact Melvin Shepperd was not a manager, clerk ot other person for the time being in charge, in accordance with Pa.R.C.P. 424(2), when the sheriff came calling to serve process. The Court relied upon the mechanics of Rule 209 to make the determination. Following the language of Rule 209 and the fact that the matter was listed for argument by Plaintiff, therby foregoing discovery allowed under the RUle, the Court applied the Teodori rule and accepted as true all facts set forth in the Petition. The Court also considered, and Plaintiff repectfully argues erroneously, Affidavits produced outside of the Petition and at oral argument for the first time. The argument which Plaintiff asserts herein is very similar to that argued under the first issue above. The distinction which Plaintiff seeks to make, however, is that she 5 believes,and respectfully submits, that the Court erred in believing it had to follow Rule 209 and Teodori. Instead, the Petition should hae been denied solely on the basis that it contained no averments of any facts specifically related to the issue of improper service. Such procedure has been sustained in Cross v. 50th Ward Communitv Ambulance ComDanv, 365 Pa.Super. 74, 80-81, 528 A.2d 1369, ___ (1987). 3. Whether the service of process in this instance, even if deemed improper, is such a technical defect so as not to constitute a reasonable excuse. In cross, the Superior Court has held that the "fact" that service was "improper", assuming it is properly raised in a petition to open, does not by itself state a reasonable excuse. Improper service can occur where there is merely a technical defect in service, but that fact alone would not excuse a defendant from answering the complaint. A defendant could have had actual notice of the litigation where some "nonfatal" defect in service existed. If that is the case, a defendant would have no excuse for failing to respond to a complaint. 365 Pa.Super. at 81, 528 A.2d at . Recall that in the subject Petition, Hills admits to having actual notice of the Complaint. Hills even describes in the Petition the journey which the original process took through its office system culminating in it notifying its counsel on March 7, 1994, the day before default judgment was entered. 6 That, in addition to Hills never actually attacking the service of process in its Petition, would serve to undermine the Court's decision in opening the judgment. The record indicates that proper service was made on Hills pursuant to Rule 424(2). The general rule regarding attacking the propriety of service is that in the absence of fraud, a return under oath which is regular, full and complete upon its face, and fully conforms to the statutory requirements is conclusive and may not be attacked by parol, extraneous or extrinsic evidence. 365 Pa.Super. at 81, fn. 9, 528 A.2d at ___' Absent Hills affirmatively stating in its Petition that service was improper pursuant to all the criteria set forth in Rule 424(2) and stating the factual reasons therefor, the Order opening the default judgment on the basis of improper service should be reversed. Respectfully submitted, Laws Staruch & Pisarcik ,4J'J .IJd,--- Michael J. Wilson, Esq. 20 Erford Rd. suite 215 Lemoyne, PA 17043 (717) 975-0600 - 7 CBRTIFICATB OF SBRVICB I, Michael J. Wilson, Esq. hereby certify that a true and correct copy of the foregoing BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION, ETC. was forwarded by facsimile transmission and united States first class mail, postage prepaid, on this 1st day of August, 1994, to the following: Thomas G. Parisi, Esq. O'Pake Malsnee orwig & Parisi, P.C. 1815 Bernville Road Reading, PA 19601 fax: (610) 372-4574 LAWS STARUCH & PISARCIK /JlIJ-r. t/~ Michael J. Wilson, Esq. MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW vs. No. 333-C-1994 HILLS STORES COMPANY t/d/b/a HILLS DEPARTMENT STORES, Defendant . . CERTIFICATE OF SERVICE I, Thomas G. Parisi, hereby certify that I served a copy of the foregoing Answers to Plaintiff's Requests for Admissions upon the following, by first-class United States mail, postage t.i ~ prepaid, ~ .. " ~ a: o oj ... Z III -' .. 2 oj " ! b on w !.! ~ ~ o ~ DATED: on this date. Michael J. wilson, Esq. 20 Erford Road, Ste. 215 Lemoyne, PA 17043 "}'t;dV'I\q ~ C, ..... ~_, oH April 19, 1995 ." en - ~.;. ,-. ::c: "'- en "" N . - c:::> '--.....J cc "- <: :~;N-~'-~;'---:f'~. ;,;. , . v. I IN THB COURT O~ COKKON PLBAS I CUKBBRLAHD COUNTY, PBHHSYLVUlIA I I I CIVIL ACTION NO. 333 CIVIL 1994 I I I JURY TRIAL DBKAHDBD ANSWERS TO PLAINTI~F'S RBOUBSTS ~OR ADMISSIONS MIRIAM L. BBRRINQ Plaintiff BILLS STORBS COMPANY, t/d/b/. HILLS DBPARTKBHT STORI Pursuant to Pa.R.C.P. 4014 Plaintiff, Miriam L. Herring, hereby requests that Hills stores company t/d/b/a Hills Department stores admit or deny with explanation the following statements of fact within thirty (30) days after service for the purpose of this action only and subject to all pertinent objections as to relevancy which may be interposed at the trial of this case. ! . , , ; ~: .- ~. . 1. Defendant does not have knowledge of any individual who observed any of the events described in the complaint immediately before the alleged fall of Plaintiff at Defendant's store on November 28, 1992. Answer: Denied. Defendant does have knowledge of individuals who observed events immediately before the alleged fall of Plaintiff at Defendant's store on November 28, 1992. 2. Defendant does not have knowledge of an individual who observed any of the events described in the Complaint during the alleged fall of Plaintiff at Defendant's store on November 28, 1992. Answer: Denied: Defendant does have knowledge of individuals who observed events during the alleged fall of Plaintiff at Defendant's store on November 28, 1992. Defendant's store. 3. Defendant has knowledge of the measurements of the dimensions of the displays upon which the pocketbookslhandbags were located, as described in the complaint, in the area in which plaintiff has alleged she fell on November 28, 1992 at Answer: Admitted in part and denied in part. It is admitted that Defendant can ascertain the measurements of the dimentions of the displays upon which the pocketbooks/handbags were located, as described in the Complaint, in the area in which Plaintiff has alleged she fell on November 28, 1992 at Defendant's store. 4. Defendant has knowledge of the measurements of the dimensions of the aisle in which the displays upon which the pocketbooks/handbags were located, as described in the Complaint, in the area in which plaintiff has alleged she fell on November 28, 1992 at Defendant's store. Answer: Admitted in part and denied in part. It is admitted that Defendant can ascertain the measurements of the dimentions of the aisle in which the pocketbooks/handbags were located, as described in the Complaint, in the area in which Plaintiff has alleged she fell on November 28, 1992 at Defendant's store. 5. Defendant does not have in its possession any written document or statement which contains any information relating to the alleged fall of Plaintiff onto the floor of Defendant's store on November 28, 1992, as described in the Complaint. Answer: Denied. It is denied that Defendant does not have in its possession any written document or statement which contains any information related to the alleged fall of the Plaintiff onto the floor of Defendant's store on November 28, 1992, as described in the Complaint. Defendant has their in house accident reports. 6. Defendant has knowledge of the physical arrangement of the displays of pocketbooks/handbags in the area in which plaintiff has alleged she fell as set forth and described in the Complaint. Answer: Admitted. 7. Defendant had an individual or individuals on its . workforce on November 28, 1992 at the store described in Plaintiff's complaint whose duties included or were exclusively the set up and/or arrangement of the display of pocketbooks/handbags in the area in which plaintiff has alleged she fell on such date. Admitted. O'PAKE, MALSNEE, ORWIG & PARISI LAWS, STARUCH & PISARCIK , By: 41 Jo-: tJJ Michael J. Wilson, Esq. 20 Erford Road, suite 215 Lemoyne, PA 17043 (717) 975-0600 By: ~~:lG" C" fC\."\",, Thomas G. Parisf, Esq. 1815 Bernville Road Reading, PA 19601 (610) 372-2424 MIRIAM L. HERRING, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO 333 C 1994 vs. HILLS STORES COMPANY, Defendant PRAECIPE Prothonotary: Please mark the above action settled and discontinued. LAWS, STARUCH & PISARCIK Attorneys for Plaintiff By: .I};../~/;/~ Michael J. Wilson, Esq. Attorney I.D. No. 52680 20 Erford Rd., suite 215 Lemoyne, PA 17043 (717) 975-0600 '. " ,. 1 i . . , CERTIFICATE OF SERVICE I, Michael J. Wilson, Esquire, hereby certify that a true and correct copy of the foregoing Praecipe was forwarded by United states first class mail, postage prepaid, on this 19th day of June, 1995, to the following: Thomas G. Parisi, Esq. O'Pake, Malsnee, Orwig & Parisi 1815 Bernville Road Reading, PA 19601 LAWS, STARUCH & PISARCIK 41~ .f: t0r? Michael J. W lson, - Esquire 20 Erford Road Lemoyne, PA 17043 (717) 975-0600 \., U"O !;" ::0:: 0- co .... N ...., z: => -, . I . \' >- ..c>- cr.... 01 r; +~-. '=z~.... OLoOO-r tl..ro~ D.-.;z. .J ,~'.~ j~ II c-y..t: . 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