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HomeMy WebLinkAbout97-1081 equityWILLIAM H. ANDRING Plaintiff Ve EARL F. ARNOLD and JANICE M. ARNOLD Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-1081 EQUITY TERM IN RE: PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AND PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HOFFER, P.J., OLER, J., GUIDO, J. AND NOW, this ORDER day of FEBRUARY, 1998, Plaintiff's Motion For Default Judgment in connection with Defendants' Counterclaim and Plaintiff's Preliminary Objections to Defendants' Amended Counterclaim are DE~IED. By the Edward E. Guido, Judge William H. Andring, Pro Se David J. Lenox, Esquire For the Defendants :sld WILLIAM H. ANDRING Plaintiff Ve EARL F. ARNOLD and JANICE M. ARNOLD Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-1081 EQUITY TERM IN RE: P!.AINTIFF'S MOTION FOR DEFAULT JUDGMENT AND PRELIMINARY OBJECTIONS TO DEFENDANTS' COUNTERCLAIM BEFORE HOFFER, P.J., OLER, J., GUIDO, J. OPINION AND ORDER OF COURT In this equity case, Plaintiff has sued for specific performance of an installment sales contract for certain Real Estate located in Mechanicsburg, Cumberland County, Pennsylvaniao The contract was executed in 1979. The 'action was commenced by complaint filed on February 28, 1997. On March 25, 1997, Defendants filed and served an answer with new matter and a counterclaim. ~ Almost five (5) months later, on August 21, 1997, Plaintiff filed preliminary objections to Defendants' counterclaim.2 On October 2, 1997, the Honorable Edgar B. Bayley dismissed all of Plaintiff's preliminary objections with the exception that Defendants were directed to file a more specific pleading. On November 20, 1997, Plaintiff filed a motion for a default judgment on Defendants' counterclaim as a result of their failure to file the amended pleading as directed by Judge Bayley. ~The Defendants' new matter and counterclaim contained a notice to plead and a notice to defend in conformity with Pa.R.C.P. 1026(a). 2This pleading was filed at least one hundred twenty (120) days after it would have been due pursuant to Pa.R.C.P. 1026(a). NO. 97-1081 EQUITY TERM On December 2, 1997, Defendants filed their amended counterclaim. On December 8, 1997, Plaintiff filed preliminary objections to Defendants' amended counterclaim. Plaintiff's Motion for default judgment and his preliminary objections to Defendants' amended counterclaim are currently before this Court for disposition. DISCUSSION MOTION FOR DEFAULT JUDGMENT · Judge Bayley's order of October 2, 1997, directing the Defendants to file a more specific pleading did not set a time frame within which said pleading should be filed. We agree with Plaintiff that under the terms of Pa. Rule of Civil Procedure 1028(e) the amended counterclaim should have been filed within twenty (20) days after Defendants received notice of the order. However, we do not agree that Defendants' delay until December 2, 1997, would require that the amended counterclaim be stricken and a default judgment thereon be entered in favor of Plaintiff. Although Rule 1028(e) provides that an amended pleading "... shall be filed within twenty (20) days after notice of the order", our Courts have consistently held that the word "shall", as it relates to the pleading chapter, is to be interpr.eted flexibly, thus permitting exceptions in the interest of justice. See Paulish v. Bakaitis, 442 Pa.434 275 A.2d 318, 1971. Likewise, Pa. Rule of Civil Procedure 126 requires that: The rules shall be liberally construed to secure the just ... determination of every action or proceeding to which they are applicable. The Court at every stage of any such action or proceeding may disregard any error or defect of NO. 97-1081 EQUITY TERM procedure which does not affect the substantial rights of the parties. The determination of whether or not to grant an exception to the twenty (20) day filing rule is within the broad discretion of the trial court. Francisco v. Ford Motor Company, 397 Pa. Super. 430, 580 A.2d 374 1990, Peters Creek Sanitary Authority v. Welch, 545 Pa.309, 681 A.2d 167 [1996].3 This Court strongly feels that the interests of justice require us to deny Plaintiff's requested relief. The history of this particular Case is one in which the parties had not strictly enforced the time frames required by the Rules of Civil Procedure. As noted above, Plaintiff filed his preliminary objections more than four (4) months after they were due. In addition, the docket indicates that Plaintiff's reply to Defendants' new matter was also filed, more than four (4) months after it would have been due. In neither case did the Defendants object. We find that Defendants' delay was caused by their justifiable reliance on the fact that strict conformance with the time requirements of the Rules would not be insisted upon. Therefore, their delay is excusable. We also note that the amended pleading was filed twelve (12) days after Plaintiff's 3Plaintiff cites both of these cases in support of his position. However, the Francisco case involved a pleading that was filed almost four years after it was due and the Peters Creek case involved a pleading which was almost two years late. In the instant case, Defendants' amended pleading was only about forty (40) days late and was filed less than two weeks after their receipt of Plaintiff's motion for default judgment. NO. 97-1081 EQUITY TERM motion for default was maile4 to Defendants.4 They certainly moved expeditiously to file their amended pleading once it was clear that the other side was going to insist upon strict compliance with the time frames set forth in the Rules. Therefore, Plaintiff's motion for default judgment and his request to strike the counterclaim should be, and is hereby, denied,s PRELIMINARY OBJECTIONS Plaintiff' s remaining preliminary objections require very little discussion. He has asked us to dismiss the amended counterclaim for failure to comply with Judge Bayley's order of October 2, 1997. We find that Exhibits A and B to the amended counterclaim provide the specificity directed by Judge Bayley. Plaintiff also asks us to dismiss the counterclaim because it amends the prayer for judgment contained in the original counterclaim in violation of Pa. Rule of Civil Procedure 1033. However, this is an equity action which is governed by Pa. Rule of Civil Procedure 1528. Pursuant to Rule 1528, "the prayer for relief may be amended as of course at any time." For the above stated reasons, Plaintiff's motion remaining 4Plaintiff's certificate of service indicates that the Motion For Default Judgment was served by depositing a copy of it in first class mail, postage prepaid, addressed to Defendants' counsel on November 20, 1997. There were four (4) weekend days and Thanksgiving in those twelve days. SPlaintiff has not alleged any prejudice by the late filing, nor can we possibly conceive of any. NO. 97-1081 EQUITY TERM preliminary objections are denied. ORDER day of FEBRUARY, 1998, Plaintiff's Motion For Default Judgment in connection with Defendants' Counterclaim and Plaintiff's Preliminary Objections to Defendants' Amended Counterclaim are D~.NIED. By the Court, /s/ Edward E. Guido, J. Edward E. Guido, Judge William H. Andring, Pro Se David J. Lenox, Esquire For the Defendants :sld