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HomeMy WebLinkAbout98-2119 civilTHOMAS CRABTREE and PAULA CRABTREE, Plaintiffs Ve EDWARD H. DISHONG, JR. and RICHARD W. ASKEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2219 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANTS' PETITIONS TO OPEN DEFAULT JUDGMENT BEFORE GUIDO, J.. AND NOW, this ORDER day of DECEMBER, 1998, the Petition to Open Judgment filed by each Defendant is GRANTED. Each Defendant is directed to file an Answer within twenty (20) days of receipt of this Order. Mark E. Gebauer, Esquire For the Plaintiffs Michael D. Reed, Esquire For the Defendant Kent H. Patterson, Esquire For the Defendant :sld THOMAS CRABTREE and PAULA CRABTREE, Plaintiffs Ve EDWARD H. DISHONG, JR. and RICHARD W. ASKEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 98-2219 CIVIL TERM CIVIL ACTION - LAW IN RE: DEFENDANTS' PETITIONS TO OPEN DEFAULT JUDGMENT BEFORE GUIDO, J. OPINION AND ORDER OF COURT In December of 1997, the parties entered into an agreement for Defendants to purchase Plaintiffs' residence for $530,000. Settlement was scheduled but never occurred. On April 22, 1998, Plaintiffs commenced this action by filing a complaint for breach of contract and specific performance. Each Defendant was served by the Sheriff on April 27, 1998. Twenty two days later, on May 20, 1998, Plaintiffs' Counsel served each Defendant with the ten (10) day notice of intent to enter a default judgment as required by Pa. Rule of Civil Procedure 237.1. The last day for Defendants to respond to the complaint was Monday June 1, 1998. Within three minutes after the courthouse opened on June 2, 1998 Plaintiffs entered a default judgment against the Defendants, jointly and severally, in the amount of $530,000. A little over two hours later on that same date Defendant Askey filed preliminary objections to the complaint. On June 26, 1998 Defendant Dishong filed a Petition to Strike and/or Open the Default Judgment. On June 29, 1998 NO. 98-2219 CIVIL Defendant Askey filed a Motion to Open Default Judgment. A Rule to Show Cause why the judgments should not be opened was issued upon Plaintiffs. The parties were directed to proceed in accordance with Pa. Rule of Civil Procedure 206.7.~ Depositions were taken and filed. All parties have submitted briefs and argument was held. The matter is now ready for disposition. DISCUSSION A petition to open default judgment is an appeal to the equitable powers of the Court. Deer Park Lumber, Inc. v. Major, 384 Pa. Super. 625; 559 A.2d 941 (1989). The standard we must apply is clear: Three factors are relevant when determining whether a default judgment should be opened or not; the timeliness of the petition to open, a reasonable excuse for the failure to appear or file a responsive pleading, and the existence of a meritorious defense. Where the three factors are satisfactorily met, the petition to open should be granted. (citations omitted). Fusco v. Hill Financial Say. Assn. 453 Pa. Super. 216, 220, 683 A.2d 677, 680 (1996). In the instant case we are satisfied that both Defendants have satisfactorily met each of the factors set ~Pa. Rule of Civil Procedure 206.7 provides in relevant part as follows: PROCEDURE AFTER ISSUANCE OF RULE TO SHOW CAUSE · · · (c) If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues, or such other discovery as the court allows, within the time set forth in the order of the court .... (d) The respondent may take depositions, or such other discovery as the court allows. NO. 98-2219 CIVIL forth above. Therefore, we will allow the judgments to be opened.2 Tim_eliness of the Petition There is no hard and fast rule as to when a petition to open a default judgment is to be considered timely. Fourteen days (14) has been deemed timely. Alba v. Uroloqy Associates of Kingston, 409 Pa. Super. 406, 598 A.2d 57 (1991). Failure to open a judgment where the petition was filed twenty eight (28) days after its entry by default was held to be an abuse of discretion. Silverman v. Polis, 230 Pa. Super. 366, 326 A.2d 452 (1974). On the other hand, the Supreme Court has held that a seventeen (17) day delay was untimely. McCoy v. Public Acceptance Corp., et al, 451 Pa. 495, 305 A.2d 698 (1973).~ In determining whether the petition is timely, we must consider the length of time from the date the Defendant received notice of entry of judgment as well as the reason for the delay in filing the petition.4 Flynn v. Casa DiBertacchi Corp~, 449 Pa. Super. 606, 674 A.2d 1099 (1996). Defendant Dishong filed his petition to open twenty-four (24) days after the judgment was 2In view of our decision to open the judgments we need not address Defendant Dishong's request to strike the judgment. Nor do we need to address Plaintiffs' request to amend the judgment as to damages. 3However, the Supreme Court did note that such a delay might not be considered excessive under certain circumstances. 4In the instant case, we do not know when notice of judgment was received. We only know that notice was mailed to the parties on the date of the entry of judgment. NO. 98-2219 CIVIL entered. The deposition testimony clearly shows that he was relying upon his former attorney to protect his interests in this matter,s It was not until he received a letter dated June 16, 1998 advising him that no formal action had been taken on his behalf, and none would be taken without a substantial retainer, that Defendant Dishong realized that his interests were not being protected. Within ten (10) days of that date he obtained new counsel and filed the petition to open the default judgment. Under these circumstances, we hold that his petition to open was timely. Defendant Askey's petition was filed twenty-seven (27) days after the entry of the default judgment.6 Unfortunately, there is nothing of record to explain this delay.7 However, we must also look at the equities involved.8 It would be patently unfair to SA Defendant's justifiable belief that his interests are being protected by another is sufficient legal justification for a default. See Duckson v. Wee Wheelers, Inc., 423 Pa. Super 251, 620 A.2d 1206 (1993) and Flynn v. Casa DiBertacchi CorD., supra. 6The docket indicates that it was filed on June 30, 1998. However, the petition itself was clocked in by the Prothonotary on June 29, 1998. 7Counsel for Defendant Askey and Plaintiffs admit to ongoing discussions regarding the default judgment which began immediately after its entry. However, there is nothing of record as to the nature or substance of those discussions. 8As the Superior Court stated in Duckson v. Wee Wheelers,. Inc., supra: When reviewing a trial court's disposition of a petition to open a default judgment, the appellate court must examine the entire record for any abuse of discretion, reversing only where the trial court's findings are inconsistent with the clear equities of NO. 98-2219 CIVIL deny Defendant Askey a hearing on the merits simply because his petition to open was filed twenty-seven (27) days after the entry of the default judgment. This is especially true in view of the facts involved in this case. Plaintiffs' Counsel "snapped" judgment within three minutes of the opening of the courthouse on the first day the judgment could be taken and less than 2 1/2 hours before Defendant Askey filed preliminary objections-9 Furthermore, judgment was entered a mere thirty-six (36) days after the complaint was served. Therefore, the equities clearly dictate that we find Defendant Askey's petition to have been timely filed. Excuse For Failinq to Respond to the Complaint. Since the judgment was entered only thirty-six (36) days after the complaint had been served, and only minutes after the opening of the courthouse on the first day upon which it could be entered, our discussion on the timeliness of the petition to open applies equally to the excuse for failure to appear or respond. Defendant Dishong relied upon his former counsel to protect his interests and Defendant Askey filed preliminary objections within the case. Moreover, this Court must determine whether there are equitable considerations which require that a defendant, against whom a default judgment has been entered, receive an opportunity to have the case decided on the merits. (emphasis added)(citations omitted) 600 A.2d at 1208. 9There appears to be no question that Defendant Askey's counsel was unaware that judgment had been taken when he filed the preliminary objections. NO. 98-2219 CIVIL hours of the time they were due. However, with regard to each Defendant, there are other reasons to excuse the delay. Defendant Dishong had been battling mental illness during the end of 1997 and at least the first half of 1998. He had undergone a psychiatric hospitalization and was taking the prescription medication Zoloft. Therefore, we find that he has shown additional justifiable reasons for the relatively minor delay in responding to the complaint. Defendant Askey was relying upon Defendant Dishong to handle the lawsuit. When it became clear that this was not being done, he secured his own counsel. He met with counsel to review the preliminary objections at 3:15 p.m. on June 1, 1998.~° The meeting was at his counsel's office in Harrisburg. At the meeting, counsel realized that the action was in Cumberland County, not Dauphin County. Since he would not have time to get to the courthouse before it closed, he chose to file the preliminary objections the next morning. Consequently, we find that Defendant Askey has also shown additional reasons to excuse his infinitesimal delay in responding to the complaint. Meritorious Defense. A meritorious defense, in the context of a petition to open a default judgment, has been defined as "a defense sufficient to justify relief if proven." County of Alleqheny v. McCullough, ~°Defendant Askey is a school teacher and this time was immediately after his work. NO. 98-2219 CIVIL 695 A.2d 40, 44 (Pa. Commwlth 1995). Stated another way by our Superior Court: In deciding whether a petitioner has shown a meritorious defense, however, we do not decide whether the defense will prevail, but only whether it will be sufficient to take the case to the jury, if the judgment is opened and the petitioner permitted to defend the claim. Duffy v. Gerst, 286 Pa. Super. 523, 536-537, 429 A.2d 645, 652. Applying that standard to the case before us, we have no doubt that each Defendant has put forth at least one meritorious defense. While,each Defendant has put forth several defenses, we will only address one that is shared. Both parties allege that Plaintiffs were not ready, willing and able to convey the property pursuant to the terms of the agreement.~ They both allege that Plaintiffs refused to comply with the terms of the radon addendum to the contract. While Plaintiffs deny this, a question of fact clearly exists.~2 If Defendants' position is ~Plaintiff requests that we dismiss Defendant Askey's petition since he did not attach a proposed answer as required by Pa. R.C.P. 237.3(a). However, paragraph 12 of Defendant Askey's petition sets forth in detail his defenses. Furthermore, Pa. Rule of Civil Procedure 126 requires that the rules be liberally construed and that we disregard any error or defect of procedure which does not affect the substantial rights of the parties. The failure to attach a proposed answer to the petition clearly did not affect the substantial rights of Plaintiffs. ~2While Plaintiffs do not deny that the remediation required under the contract was completed after the scheduled settlement, they allege that they always stood ready to comply. Defendants on the other hand, have presented evidence that Plaintiffs refused to comply but rather sought to reduce the sales price. NO. 98-2219 CIVIL believed by the jury, they would certainly be entitled to have judgment entered in their favor. Therefore, we must find that a "meritorious defense" exists. For the reasons set forth above, we feel that Defendants have satisfactorily met the three factors necessary to grant their petitions to open the judgment. Furthermore, we are convinced that the equities of the case strongly dictate in favor of us granting the relief requested. ORDER AND NOW, this 9TH day of DECEMBER, 1998, the Petition to Open Judgment filed by each Defendant is GR/~TED. Each Defendant is directed to file an Answer within twenty (20) days of receipt of this Order. By the Court, Mark E. Gebauer, Esquire For the Plaintiffs /s/ Edward E. Guido Edward E. Guido, J. Michael D. Reed, Esquire For the Defendant Kent H. Patterson, Esquire For the Defendant :sld