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HomeMy WebLinkAbout2006-4840 Civil PPL ELECTRIC UTILITIES, : IN THE COURT OF COMMON PLEAS OF CORP., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 06-4840 CIVIL : ALEX E. ARNDT, : Defendant : JURY TRIAL DEMANDED IN RE: PETITION TO OPEN OR STRIKE DEFAULT JUDGMENT BEFORE HESS, J. OPINION The judgment entered in this case arises out of an alleged incident that occurred on September 4, 2005, when the defendant, Alex Arndt, crashed into a telephone pole owned by plaintiff, PPL Electric. On August 21, 2006, the plaintiff filed a complaint seeking to recover $17, 122.52 in property damage. On May 25, 2007, the defendant was served with the complaint. He did not answer the complaint, file a response or hire counsel. On July 16, 2007, a ten-day notice of default was sent to the defendant. After there was no response, on August 20, 2007, the Cumberland County Prothonotary’s Office entered a default judgment in favor of the plaintiff. It appears, further, that on February 19, 2008, the plaintiff sent a letter to the defendant threatening to have his driver’s license suspended unless the default judgment was satisfied. th Thereafter, on March 13, 2008, defendant hired counsel and four days later, on March 17, filed a petition to open the default judgment. Pennsylvania Rule of Civil Procedure 237.3 provides that, if a petition for relief from a judgment of default is filed within ten (10) days after entry of the judgment on the docket, the court shall open the judgment if the proposed answer states a meritorious cause of action or NO. 06-4840 CIVIL defense. If the petition is not filed within ten days, well-established Pennsylvania law holds that in order to set aside a default judgment, a plaintiff must: “(1) Promptly file a petition to open judgment; (2) provide a meritorious defense; and (3) offer a legitimate excuse for the delay in filing a timely answer.” Reid v. Boohar, 856 A.2d 156, 161 (Pa.Super. 2004). Here, the defendant received notice of a default judgment on August 20, 2007, but did not file a petition to open the default judgment until seven months later, in March of 2008. Our courts have consistently held that this sort of delay does not reflect prompt action on the part of the defendant. In Pappas v. Stefan, the court refused to open a default judgment that was entered on November 9, 1971, and not challenged until January 13, 1972. 304 A.2d 143 (Pa. 1973). In that case, the time between default judgment and the petition to open was only two months. In Dumoff v. Spencer, the court entered a default judgment on June 4, 1998, against the defendant for failing to file an answer to a complaint involving a vehicular accident. 754 A.2d at 1280 (Pa.Super. 2000). Even after learning that the plaintiff would not stipulate to opening the judgment, the defendant waited four months to file a petition to open. While the defendant had asserted a meritorious defense and had an excuse for not answering the complaint, the trial court held that he had waited too long to file a petition to open. The Pennsylvania Superior Court upheld the trial court’s decision that a four-month delay was not prompt. In considering the time factor, the Court held that “in the past, we have held that delays of as little as twenty-one days have been untimely.” See also B.C.Y., Inc. Equipment Leasing Assocs. v. Bukovich, 390 A.2d 276, 277 (Pa.Super. 1978) (twenty-one day delay is not prompt); Allegheny Hydro No. 1 v. American Line Builders, 722 A.2d 189, 194 (1998) (forty-one day delay is not prompt). In cases 2 NO. 06-4840 CIVIL where we have held that the filing was prompt, the period of delay was generally less than one month.” Id. at 1281. We will give the defendant the benefit of the doubt on whether he has asserted a meritorious defense. In this case, the defendant contends that he lost consciousness immediately prior to the accident. Indeed, the case of Freifield v. Hennessey, holds that a motorist, who is stricken by unforeseeable loss of consciousness, is not chargeable with negligence so long as he did not know or have reason to know of a condition that caused the loss of consciousness. Freifield v. Hennessey, 353 F.2d 97, 98 (C.A.Pa. 1965). In Freifield, the defendant also lost consciousness and caused a fatal accident. Immediately after the accident, the defendant was taken to a hospital for observation. Thereafter, a neurosurgeon determined that a loss in blood pressure and poor circulation likely caused the loss of consciousness. See id. at 98-9. Similarly, in Pagano v. Magic Chef, the defendant hit a telephone pole causing personal injury to his passenger. 181 F.Supp. 146, 148 (D.C.Pa. 1960). In that case, the police officer on the scene testified that when he arrived he witnessed the defendant regain consciousness and heard him say “I became sick; I blacked out.” See id. We observe that, in Freifield and Pagano, the defendants had witnesses who verified that the defendant appeared to have lost consciousness. Mr. Arndt does not refer to any such independent evidence in this case and, therefore, his defense may not be as strong as he hopes. In any event, we note that the defendant has utterly failed to advance any legitimate excuse for not answering the complaint in a timely fashion. The defendant maintains that the default judgment should be set aside because he is a lay person, is unfamiliar with the law, and did not know what to do when served with the complaint. He relies on Hanna v. Key Computer 3 NO. 06-4840 CIVIL Systems, Inc., wherein it was observed that the court should “sit as would a chancellor in equity to determine how best justice can be served.” 562 A.2d 327, 328 (Pa.Super. 1989). In Hanna, during the month following the service of the complaint, the parties engaged in settlement negotiations. When the defendant indicated that the plaintiff’s offer was unacceptable, the plaintiff entered a default judgment. Approximately ten days later, the defendant filed a petition to open. It was clear that the defendant did not respond to the complaint because there were ongoing negotiations. Nothing of the sort occurred in this case. In the matter sub judice, the plaintiff’s complaint was met with inexplicable silence. This, notwithstanding the fact that the complaint contained a standard notice to defend setting out the actions which a defendant must take within twenty days of service of the complaint. If there was ever a case for the application of the maxim, ignorantia legis neminem excusat, this is the case. ORDER AND NOW, this day of June, 2008, the petition of the defendant to open/strike judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Anthony P. Krzywicki, Esquire For the Plaintiff Michael Scheib, Esquire For the Defendant :rlm 4 PPL ELECTRIC UTILITIES, : IN THE COURT OF COMMON PLEAS OF CORP., : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : CIVIL ACTION – LAW vs. : NO. 06-4840 CIVIL : ALEX E. ARNDT, : Defendant : JURY TRIAL DEMANDED IN RE: PETITION TO OPEN OR STRIKE DEFAULT JUDGMENT BEFORE HESS, J. ORDER th AND NOW, this 26 day of June, 2008, the petition of the defendant to open/strike judgment is DENIED. BY THE COURT, _______________________________ Kevin A. Hess, J. Anthony P. Krzywicki, Esquire For the Plaintiff Michael Scheib, Esquire For the Defendant :rlm