Loading...
HomeMy WebLinkAbout99-4601 civilCHRISTA MALONE, Plaintiff Vo JACK A. SUNDERLAND and ALICE R. MOUNTZ t/a A & J TOY POODLES, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 99-4601 CIVIL TERM · IN RE: PETITION TO OPEN DEFAUI~T JUDGMENT BEFORE GUIDO, J, AND NOW, this ORDER OF COURT day of APRIL, 2000, for the reasons stated in the attached opinion, defendants' petition to open the default judgment is denied. A trial limited to the issue of damages is scheduled before this Court on Wednesday, June 14, 2000, at 9:30 a.m. in Courtroom # 5 of the Cumberland County Courthouse. By the Court, Edward E. Guido, J. Kathleen K. Shaulis, Esquire For the Plaintiff Paul Taneff, Esquire For the Defendants 'sld CHRISTA MALONE, Plaintiff Ve JACK A. SUNDERLAND and ALICE R. MOLrNTZ t/a A & J TOY POODLES, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · NO. 99-4601 CIVIL TERM IN RE: PETITION TO OPEN DEFAULT JUDOMENT BEFORE GUIDO. J. OPINION AND ORDER OF COURT Currently before us is defendants' "Motion to Vacate Default Judgment." A heating on said motion was held on January 5, 2000. The parties were given the opportunity to file briefs in support of their respective positions, which they have done. The matter is ready for disposition. FACTUAL BACKGROUND On July 30, 1999, defendants commenced this action by filing a pro se appeal from a judgment entered against them at the district justice level. On August 20, 1999, plaintiff filed a complaint in response to a role issued upon her by defendants. Although the complaint was promptly served upon the defendants, ~ they did not meet with an attorney to discuss the matter until September 13, 1999.2 Notes of Testimony, pp. 6-7. Notes of Testimony, pp. 6-7. 99-4601 CIVIL TERM On September 13, 1999, defendants' counsel mailed a letter to plaintiff's counsel 3 Plaintiff's counsel requesting an extension of time to October 14 to file an answer. indicated that she never received the letter.4 We believe her. On September 14, 1999, plaintiff's counsel mailed a copy of the notice of default required by Pa. R.C.P. 237.1 to each defendant,s Defendant Mountz testified that neither she nor her codefendant received the notice.6 We do not believe her. On October 1, 1999, a judgment by default was entered against the defendants for failure to respond to the complaint.7 On that same date the prothonotary sent notice of the default judgment to each defendant as required by Pa. R.C.P. 236.8 Defendants filed an Answer with New Matter and counterclaim on October 4, 1999.9 On October 20, 10 2000, they filed the "Motion to Vacate Default Judgment" which is currently before us. DISCUSSION At the commencement of the heating on defendants' motion it was agreed that they were seeking to have the default judgment opened rather than vacated. 11 Pa. R.C.P. 237.3 provides as follows: RELIEF FROM JUDGMENT OF NON PROS OR BY DEFAULT (a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file. 3 Defendants' counsel did not enter his appearance of record at that time. 4 Notes of Testimony, p. 20. 5 Notes of Testimony of January 5, 2000, proceeding, Respondent's Exhibit 1. 6 Notes of Testimony, pp. 10-11. 7 Refer to docket entries. See also paragraph 4 of defendants' Motion to Vacate Judgment and Plaintiff's Response Thereto. 8 Refer to docket entries. 9 Refer to docket entries. ~0 Refer to docket entries. ~ January 5, 2000, Notes of Testimony, p. 3. 99-4601 CIVIL TERM (b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall~open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. In the instant case, the motion was not filed within ten days after entry of the default judgment.12 Therefore, Rule 237.3 is not applicable. However, our inquiry does not end there. A petition to open a default judgment is an appeal to the equitable powers of the court. Alba v. UrologY Assocs. of Kingston, 409 Pa. Super. 406, 598 A.2d 57 (1991). Default judgments are not favored. Kraynich v. Hertz, 443 Pa. 105,277 A.2d 144 (1971). In order to be entitled to relief"the moving party must (1) promptly file a petition to open the default judgment, (2) show a meritorious defense, and (3) provide a reasonable excuse or explanation for its failure to file a responsive pleading." Allegheny Hydro NO. 1 v. American Line Builders, Inc., 722 A.2d 189, 191 (Pa. Super. 1998). In the instant case, the defendants have failed to meet any of those requirements. Prompt Filing Of Petition To Open. There is no "bright line test" to determine whether a petition to open a default judgment has been timely filed. Id. at 193. Rather, we must focus "on two factors: (1) the length of the delay between discovery of the entry of the default judgment and filing the petition to open judgment, and (2) the reason for the delay." Id. (quoting Quatrochi v. Gaiters, 251 Pa. Super. 115,380 A.2d 404, 407 (Pa. Super. 1977)). ~2 As noted below, we are also of the opinion that it did not state a meritorious defense. 99-4601 CIVIL TERM In the instant case, the defendant received notification of the default judgment no later than October 3, 1999.13 Their petition to open was not filed until seventeen days later on October 20, 1999. The defendants did not offer any reason for the delay. Under the circumstances, we are not prepared to say that the petition to open was promptly filed. Meritorious Defense. Attached to the petition was a copy of the answer which the defendants had filed three days after entry of the default judgment. Upon reviewing the complaint and answer, we are satisfied that defendants have not set forth a sufficient defense to justify opening the judgment.TM The undisputed facts may be summarized as follows. On February 1, 1999, plaintiff paid defendants $400 as a deposit on a puppy.~ On March 20, 1999, plaintiff paid the balance of the purchase price and took possession of the puppy.~6 At that time Defendant Mountz signed the following document: On this day March 20, 1999, I Alice K. Mountz of A&T Toy Poodles, have sold one 7-week old black female teacup poodle to Christa Malone for the amount of $800.00 paid in full. Buyer reserves the fight to have the puppy examined by her veterinarian within 96 hours. If in fact any infectious disease and/or any congenital disorder is discovered the puppy may be returned for a full refund.17 13 Defendant Mountz testified that she dropped the notice in the mail to her attorney the day after she received it. He called and discussed the significance of it with her on October 5, 1999. (January 5, 2000, Notes of Testimony, p. 10). Assuming that her lawyer called her immediately upon receipt of the notice, and assuming that it took only one day to reach him after she mailed it, defendants would have received the notice of default judgment on October 3, 1999. 14 Not only must the defense be meritorious, but it must also be set forth in "precise, specific, clear and unmistaken terms." Shainline v, Albcrti Builder~, Inc., 266 Pa. Super. 129, 135,403 A.2d 577, 579 (1979). ~5 Complaint and Answer, paragraph 8. 26 Complaint and Answer, paragraph 11. 27 Complaint and Answer, paragraph 12 and Complaint Exhibit 1. 99-4601 CIVIL TERM Although she signed the above written guarantee, Defendant Mountz advised plaintiff that it was unnecessary since all of her dogs were guaranteed for one year.ms Plaintiff's husband advised defendants by phone that their vet told them to remm the puppy. Defendants said that this would not be a problem.~9 The puppy was returned on March 25, 1999.20 Defendants refused to refund plaintiff's money until the dog was examined by their own veterinarian.2~ On March 27, 1999, defendant called plaintiff to advise her that the dog had been examined by their own vet and that she would be receiving a refund check within a week.22 Defendants have never refunded the purchase price to plaintiff.23 The only defense proffered by defendants in their answer is set forth in paragraph 45 of the new matter as follows: Any problems which the puppy may have experienced, was proximately caused by the Plaintiff's own neglect, fault or careless conduct in caring for a seven week old puppy including, but not limited to, contributory negligence and assumption of risk by the Plaintiff, and without any negligence, fault, want of care or other culpable conduct on the part of the answering Defendants.24 The above language inartfully and improperly attempts to set forth a negligence defense to a contract action. More importantly, the defendants have admitted, either expressly or by operation of law, all of the elements necessary for plaintiff to obtain her judgment. Furthermore, ~8 Complaint and Answer, paragraph 13. Defendants answer contained a general denial of paragraph 13. However, it is well settled that a general denial of an allegation in a complaint operates as an admission of that allegation..Swift v. Milner, 371 Pa. Super. 302, 538 A.2d 28 (1988); Pa. R.C.P. 1029(b). ~9 Complaint and Answer, paragraph 16. (Answer contains a general denial). 20 Plaintiff claims the return date was March 25, 1999. Defendants admit that the dog was returned, but allege that it was on March 27, 1999. (Complaint and Answer, paragraph 17). 21 Complaint and Answer, paragraph 18. 22 Complaint and Answer, paragraph 21. (Answer contains a general denial). 23 Complaint and Answer, paragraph 21. 24 New Matter, paragraph 45. 99-4601 CIVIL TERM the defendants have not attempted to explain under what possible theory they can keep the dog and not remm the purchase price. Reasonable Explanation For Failing To File Answer. Neither the defendants nor their counsel have offered a credible explanation for their failure to file an answer before the default judgment was entered. Defendants' counsel contends that he mailed a letter to plaintiff's counsel on September 13, 1999, in which he requested an extension until October 15 to file an answer. The letter states in relevant part as follows' This letter will acknowledge that we met with our client to day [sic] to review the Complaint and we will be preparing an Answer for filing. However, in view of my current calendar, I would respectfully request a reasonable extension of time to file an Answer. Unless I hear from you to the contrary, I will assume that if we are filed no later than October 15, 1999, you will not have a problem. Otherwise, we will file a Motion with the Court requesting an enlargement of time necessary to complete our initial investigation and prepare a responsive pleading.2s Plaintiff's counsel said that she did not receive the letter and we believe her. However, even if the letter had been received by plaintiff's counsel, her action in mailing the notice of default to each of the individual defendants on September 14, 1999, was sufficient to put them on notice that the requested extension was not agreeable.26 Although Defendant Mountz testified that they never received the notices, we simply did not believe her testimony. She was confused, evasive, and not at all credible. Furthermore, it is simply too much of a coincidence for us to believe that the letter 25 January 5, 2000, proceedings, Petitioner's Exhibit 1. 26 January 5, 2000, proceedings, Respondent's Exhibit 1. At the time the notices of default were mailed, plaintiff's counsel was still working under the impression that defendants were proceeding pro se. 99-4601 CIVIL TERM requesting an extension, and two separate notices of default were all lost in the mail. We are satisfied that defendants received the notices and chose to ignore them. While we recognize that default judgments are not favored under the law, we are satisfied that the equities of the current case dictate against allowing defendants to open the judgment. The cavalier treatment of plaintiff's claim cannot be excused. This is especially tree in light of the fact that a meritorious defense to that claim does not appear to exist. Therefore, we are constrained to deny their request to open the default judgment. However, the amount of the judgment is another matter. Pa. R.C.P. 1037(b) provides, in relevant part, as follows' The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time a pleading to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant's pleadings. (1) The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages. In the instant case, the plaintiff requests a remm of the purchase price plus prejudgment interest. Certainly, these items are, or can be computed to be, a sum certain. However, plaintiff also claims numerous ancillary damages, as well as treble damages and counsel fees under the Uniform Trade Practices and Consumer Protection law 73 P.S. § 201-1 et seq. Whether plaintiff is entitled to treble damages and attorney fees under the UTCPL is a question that must be decided by this Court. 72 P.S. § 201-9.2(a). Since we cannot state with certainty that the amount of damages computed by plaintiff are appropriate, we will schedule a trial limited solely to the issue of damages in accordance 99-4601 CIVIL TERM with Pa. R.C.P. 1037(b)(1). See also Baraonfski v, Malone, 371 Pa. 479, 91 A.2d 908 (1952). ORDER OF COURT AND NOW, this 4TM day of APRIL, 2000, for the reasons stated in the attached opinion, defendants' petition to open the default judgment is denied. A trial limited to the issue of damages is scheduled before this Court on Wednesday, June 14, 2000, at 9'30 a.m. in Courtroom # 5 of the Cumberland County Courthouse. By the Court, Kathleen K. Shaulis, Esquire For the Plaintiff /s/Edward E. Guido Edward E. Guido, J. Paul Taneff, Esquire For the Defendants 'sld