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HomeMy WebLinkAbout2006-6364 Civil COMMONWEALTH FINANCIAL : IN THE COURT OF COMMON PLEAS OF SYSTEMS, INC. : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : : NO. 06-6364 CIVIL : GEORGE DOUTRICH, : Defendant : IN RE: OPINION PURSUANT TO RULE 1925 In this case, the defendant has appealed from our order denying his motion to open or, in the alternative, to “vacate” a judgment. The underlying facts as set forth in the plaintiff’s complaint are as follows. Defendant received a Direct Merchants Bank and a Household Bank credit card. (Compl. ¶ 3, 23.) Metris Companies, Inc., the parent corporation of Direct Merchants Bank, sold the Direct Merchants Bank account to Jefferson Capitol Systems, who sold it to Collins Financial Services, Inc., who sold it to the plaintiff. (Compl. ¶ 8.) Household Bank sold the Household Bank account to CACV, Inc., who sold it to Unifund CCR Partners, who sold it to the plaintiff. (Compl. ¶ 28.) As of August 31, 2006, the defendant owed the plaintiff $6,570.65 for the Direct Merchants card and $2,729.73 for the Household Bank card. (Compl. ¶ 12, 32.) On November 27, 2006, the plaintiff filed a complaint alleging breach of contract and unjust enrichment, seeking to recover the outstanding balance of each credit card plus attorney’s fees. (Compl. ¶ 3-12, 17-19, 23-32). On December 11, 2006, the plaintiff sent a notice to the defendant’s counsel of intent to take a default judgment. Having had no indication that an answer was filed, the plaintiff forwarded a praecipe for the entry of judgment by default which was clocked in by the Prothonotary on December 27, 2006, at 10:53 a.m. In the meantime, the defendant had forwarded preliminary objections which were clocked in by the Prothonotary on December 27, 2006, at 10:49 a.m. The defendant’s preliminary objections contained a single averment to the effect that the plaintiff’s suit was barred by the statute of limitations. Because, under the circumstances, we are satisfied that the exact timing of the clocking in of the documents was happenstance, we have dealt with this matter as if the taking of default judgment and the filing of preliminary objections occurred simultaneously. We will treat the defendant’s motion to “vacate” the judgment as a motion to strike. Under Pennsylvania law, “a petition to strike a judgment is a common law proceeding which operates as a demurrer to the record.” Resolution Trust Corp. v. Copley Qu-Wayne Associate, 546 Pa. 98, 106, 683 A.2d 269, 273 (1996). Courts may only grant a motion to strike a judgment where a fatal defect or irregularity appears on the face of the record. See id. In this case, default judgment was entered at the same time preliminary objections were filed. The preliminary objections, however, raised the statute of limitations. Under Rule 1030 of the Pennsylvania Rules of Civil Procedure, an affirmative defense that a claim is barred by the statute of limitations “shall be pleaded in a responsive pleading under the heading ‘New Matter.’” Pa.R.C.P. 1030. It is well established that the statute of limitations is not properly raised by preliminary objection. See Devine v. Hutt, 863 A.2d 1160, 1167 (Pa.Super. 2004). Normally speaking, when the statute of limitations is improperly raised by preliminary objections, the proper challenge is to seek to strike the defendant’s preliminary objections for failure to conform to rule of court. Id. In this case, however, the defective preliminary objections were filed at the same time that default judgment was entered. Given the unique facts of this case, we cannot conclude that there is a fatal defect or irregularity on the face of the record. In addition to his motion seeking to “vacate” the judgment, the defendant has filed a motion to open same. A decision to open a default judgment is within the sound discretion of the trial court. See Shufesky v. City of Erie, 624 A.2d 715, 716 (Pa.Cmwlth. 1993). In order to grant a petition to open a default judgment, three criteria must be met: (1) the petition to open must be promptly filed; (2) there must a reasonable excuse for failure to respond; and (3) a meritorious defense must be set forth. Id. Pennsylvania courts have yet to establish a bright-line rule to be used in determining the promptness of a petition to open. See generally Pappas v. Stefan, 451 Pa 354, 304 A.2d 143 (1973); Texas & Block H.F. & G. Club v. Bonnell Run H. & F. Corp., 388 Pa. 198, 130 A.2d 508 (1957); Schutte v. Vallen Bargain Center, Inc., 248 Pa. Super. 532, 375 A.2d 368 (1977); Hatgimisios v. Daves’s N.E. Mint, Inc., 251 Pa. Super. 275, 380 A.2d 485 (1977). The courts have found petitions to open were properly denied where they were filed after twenty-seven days, Texas & Block H.F. & G Club, 388 Pa. at 203, 130 A.2d at 511; thirty-seven days, Hatgimisios, 251 Pa. Super. at 276, 380 A.2d at 486; forty-seven days, Schutte, 248 Pa. Super. at 537, 375 A.2d at 371; and sixty-five days, Pappas, 451 Pa. at 358, 304 A.2d at 146, after notice of default judgment was communicated to petitioner. In the instant case, default judgment was granted for the plaintiff on December 27, 2006; The defendant’s motion to open was filed February 6, 2007. This is a delay of forty-one days between the entering of the default judgment and the filing of the defendant’s motion to open. No explanation was given by the defense as to the circumstances surrounding the delay. While the defendant is currently represented by a different attorney, this did not happen until after his petition to open was filed. We are satisfied that the petition to open was not timely filed. Even assuming that the defendant’s motion to open was prompt, the defendant failed to provide any excuse for his failure to file a timely answer. As stated previously, Rule 1030 of the Pennsylvania Rules of Civil Procedure provides that an affirmative defense of the statute of limitations must be pleaded as a responsive pleading under the heading of “New Matter.” Pa.R.C.P. 1030. The application of this rule to this case is particularly apropos because no answer was filed providing dates and timeframes material to this case. It is impossible, therefore, to determine that the affirmative defense is meritorious. Thus, the defendant’s petition to open fails on all three of the requirements necessary to grant relief. July 18, 2007 ________________________________ Kevin A. Hess, J. Alan R. Mege, Esquire For the Plaintiff Matthew J. Eshelman, Esquire For the Defendant :rlm