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HomeMy WebLinkAbout02-4017 CivilDWANE E. WILKINSON AND CONSTANCE S. WILKINSON, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DWANE S. WILKINSON AND HEATHER L. CLAWSER (formerly Wilkinson), DEFENDANTS 02-4017 CIVIL TERM IN RE: (1) MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS AGAINST BOTH DEFENDANTS AND (2) PRELIMINARY OBJECTION OF PLAINTIFFS TO STRIKE THE ANSWER AND NEW MATTER OF DEFENDANT, HEATHER L. CLAWSER BEFORE BAYLEY, J. AND GUIDO, J. OPINION AND ORDER OF COURT Bayley, J., September 23, 2003:-- On August 23, 2002, plaintiffs Dwane E. Wilkinson and Constance S. Wilkinson, filed suit against defendants Dwane S. Wilkinson and Heather L. Clawser by praecipe for a writ of summons. Service was made on defendant, Dwane S. Wilkinson, on August 29, 2002. On October 25, 2002, the writ was reissued as to Heather L. Clawser. On October 31, 2002, service was made on her by the Sheriff. On January 8, 2003, Heather L. Clawser, filed a praecipe for a Rule for plaintiffs to file a complaint, and a Rule was issued. By agreement, the defendants extended the filing date to May 22, 2003, when a complaint was filed. Service of the complaint was accepted by the 02-4017 CIVIL TERM attorney for Heather Clawser on May 27, 2003, and the attorney for Dwane S. Wilkinson on May 28, 2003. Plaintiffs, in their complaint, aver that they loaned money to defendants Dwane S. Wilkinson, their son, and his wife Heather L. Clawser, toward the purchase of a home. Defendants promised to repay plaintiffs when the property was sold. The defendants were divorced in November, 2001. The home has been sold. Defendants have not repaid the loan for which plaintiffs seek a judgment of $22,833.19 with interest. On July 3, 2003, plaintiffs filed a motion for a judgment on the pleadings. On July 9, 2003, defendant Heather L. Clawser, filed an answer and new matter to the complaint. On July 28, 2003, plaintiffs filed a preliminary objection to strike the answer and new matter. On August 15, 2003, Heather L. Clawser filed an answer and new matter to plaintiffs' preliminary objections, and an answer to plaintiffs' motion for a judgment on the pleadings. Defendant, Dwane S. Wilkinson, has filed no pleadings. On August 27, 2003, briefs were filed and argument conducted on the motion of plaintiffs for judgment on the pleadings against both defendants,1 and the preliminary objection of plaintiffs to strike the answer and new matter of defendant, Heather L. Clawser. 1 Dwane S. Wilkinson does not object to the entry of a judgment on the pleadings against himself, and he urges the court to enter a judgment on the pleadings against his former wife. -2- 02-4017 CIVIL TERM I. MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS Defendant, Heather L. Clawser, maintains that the remedy for the entry of a judgment for failure to file a responsive pleading to a complaint as required by Rule 1037(b) is pursuant to Rule 237.1. Rule 1026(a) provides in pertinent part that "every pleading subsequent to a complaint shall be filed within twenty days after service of the preceding pleading." Rule 1037(b) provides: 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. Note: See Rule 237.1 which requires the praecipe for default judgment to contain a certification of written notice of intent to file the praecipe. (Emphasis added.) Rule 237.1 provides in part: (a)(1) As used in this rule... "judgment by default" means a judgment entered by praecipe pursuant to Rules 1037(b)... (2) No judgment of non pros for failure to file a complaint or by default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered .... (ii) in the case of a judgment by default, after the failure to plead to a complaint and at least ten days prior to the date of the filing of the praecipe to the party against whom judgment is to be entered and to the party's attorney of record, if any .... (3) A copy of the notice shall be attached to the praecipe. (4) The notice and certification required by this rule may not be waived. (Emphasis added.) -3- 02-4017 CIVIL TERM Explanatory Comment--1994 Rule 237.1 et seq. are intended to (1) avoid snap judgments by requiring notice of the intention to enter certain judgments of non pros and by default, (2) eliminate procedural problems arising from ambiguous agreements to extend time to take required action and (3) ease the procedural burdens upon parties who move promptly to open such judgments. Plaintiffs cite Peters Creek Sanitary Authority v. Welch, 681 A.2d 167 (Pa. 1996), in support of their positions. In Peters Creek, the Supreme Court of Pennsylvania stated: The sole issue on appeal is whether a trial court may strike an answer to a complaint as untimely where it is filed approximately twenty- three (23) months after the complaint was served and one (1) day before trial was set to begin even though the plaintiff failed to move for default judgment. Because we find that it is within the trial court's broad discretion to strike as untimely an answer which blatantly ignores the time limits set by procedural rules and that the trial court does not abuse its discretion in striking an answer where the moving party has failed to seek a default judgment, we reverse the order of the Commonwealth Court and reinstate the order of the trial court striking appellees' answer and new matter. The Court held: [t]hat the trial court does not abuse its discretion in granting a motion to strike an answer even though the moving party has not sought a default judgment since the failure to seek a default judgment does not act to automatically extend the period in which to file an answer .... [t]he trial court does not abuse its discretion in striking a pleading as untimely where it finds that a party's blatant disregard for the time limits established by the Rules of Civil Procedure, without just cause for the delay, constitutes an abject indifference to the Rules. The facts in the case sub judice, are opposite of the facts in Peters Creek where there was a blatant disregard to timely plead that constituted abject indifference. -4- 02-4017 CIVIL TERM Here, plaintiffs avoided the notice requirements in Rule 237.1, which undoubtedly would have prompted defendant to file an answer to the complaint. Filing a motion for a judgment on the pleadings twenty-three days after the twenty day limit in Rule 1026(a) expired, especially when defendant was represented by counsel who had granted plaintiffs a lengthy extension to file their complaint, can only be described as an effort to obtain a snap judgment, exactly what Rule 237.1 is designed to prevent. On these facts, plaintiffs were obliged to file a notice of an intent to take a default judgment pursuant to Rule 237.1 for the failure of defendants to file a timely responsive pleading to the complaint in violation of Rule 1037(b). Even if the motion for a judgment on the pleadings had been proper we would not grant relief. Plaintiffs seek a judgment on the basis that their averments of fact are deemed admitted under Pa. Rule of Civil Procedure 1029(b). They cite Newspaper Guild of Greater Philadelphia v. Philadelphia Daily News, Inc., 401 Pa. 337 (1960), for the proposition that the pleadings were closed when their motion for judgment on the pleadings was filed. In Newspaper Guild, the defendant filed an answer and new matter to a complaint. The plaintiff chose not to reply to the new matter, and filed a motion for judgment on the pleadings pursuant to Pa. Rule of Civil Procedure 1034. The trial court granted the motion. On appeal, the defendant argued that the motion for a judgment on the pleadings was prematurely filed before the pleadings were closed. The Supreme Court of Pennsylvania rejected that argument, stating: -5- 02-4017 CIVIL TERM [Plaintiff] failed to reply to the so-called "New Matter" contained in the [defendant's] answer within twenty days from the date of service thereof. Since not replied to, the averments of fact therein must be taken as admitted. Once this is established, the pleadings are closed (there were at that point no open pleadings to which to reply) and a motion under Rule 1034 was in order. No reply to new matter was ever filed in Newspaper Guild, thus the pleadings were closed. In contrast, defendant, Heather L. Clawser filed an answer and new matter, albeit late and after plaintiffs' motion for judgment on the pleadings was filed. On these facts Newspaper Guild is not dispositive. Defendant did not need leave of court to file her late answer to the complaint and new matter. Pa. Rule of Civil Procedure 1034 provides: (a) after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. 2 (b) the court shall enter such judgment or order as shall be proper on the pleadings. (Emphasis added.) At this point the pleadings consist of plaintiffs' complaint and defendant's answer and new matter. Defendant has sufficiently denied averments of fact pleaded in the complaint so as to preclude the grant of the motion for a judgment on the pleadings. Defendant, Dwane S. Wilkinson, has not filed a responsive pleading and supports 2 Defendant would have needed leave of court or a filed consent of the adverse party to either change the form of the action, correct the name of a party or amend a pleading. Pa. Rule of Civil Procedure 1033. See Catanese v. Taorminia, 437 Pa. 519 (1970); Vetenshtein v. City of Philadelphia, 755 A.2d 62 (Pa. Commw. 2000); Sipes v. Bouch, 02-3689 Civil, Cumberland County (March 14, 2003). -6- 02-4017 CIVIL TERM plaintiffs' motion for a judgment against him. Accordingly, on consent, we will grant that motion. II. PRELIMINARY OBJECTION OF PLAINTIFFS TO STRIKE THE ANSWER AND NEW MATTER OF DEFENDANT, HEATHER L. CLAWSER Pa. Rule of Civil Procedure 1026(a) provides: Except as provided by Rule 1042.5 or by subdivision (b) of this rule, every pleading subsequent to a complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead. (Emphasis added.) Defense counsel accepted service of the complaint on May 27, 2003. The twentieth day for filing a responsive pleading was June 16th. Notwithstanding the courtesy of counsel in accepting service of the complaint, plaintiffs filed a motion for judgment on the pleadings on July 3rd. Defendant promptly filed an answer and new matter on July 9th. By filing a preliminary objection on July 28th, plaintiffs have preserved the issue of whether the answer and new matter should be stricken. Hahnemann Medical College and Hospital of Philadelphia v. Hubbard, 267 Pa. Super. 436 (1979). The sole reason set forth in the preliminary objection to strike the pleading is that it was filed twenty-three days late. Rule 1026(a) has been interpreted as permissive rather than mandatory. Peters Creek Sanitary Authority v. Welch, supra. In Peters Creek, the Supreme Court of Pennsylvania stated: When a party moves to strike a pleading, the party who files the untimely pleading must demonstrate just cause for the delay. It is only after a -7- 02-4017 CIVIL TERM showing of just cause has been made that the moving party needs to demonstrate that it has been prejudiced by the late pleading. Pa. Rule of Civil Procedure 126 provides: The rules shall be liberally construed to secure the just, speedy and inexpensive 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 of defect of procedure which does not affect the substantial rights of the parties. The history of this case is one in which the parties did not strictly enforce the time requirements in the Rules. Defendant's short delay in filing the answer and new matter constituted justifiable reliance that strict conformance with the time requirements would not be insisted upon. In accord, Andring v. Arnold, 47 Cumberland L.J. 183 (1998). Besides, plaintiffs did not proceed under Rule 237.1 to remedy a default for failure to file a responsive pleading under Rule 1037(b). Plaintiffs have not pleaded any prejudice, and there obviously has not been any. The interest of justice warrants that plaintiffs' preliminary objection to strike the answer and new matter be denied. ORDER OF COURT AND NOW, this day of September, 2003, IT IS ORDERED: (1) The motion of plaintiffs for judgment on the pleadings against defendant Dwane S. Wilkinson, IS GRANTED. Judgment is entered in favor of Dwane E. Wilkinson and Constance S. Wilkinson against Dwane S. Wilkinson for $22,833.19 with prejudgment interest of 6% per annum. (2) The preliminary objection of plaintiffs to strike the answer and new matter of -8- 02-4017 CIVIL TERM defendant Heather L. Clawser, IS DENIED. (3) The motion of plaintiffs for a judgment on the pleadings against defendant, Heather L. Clawser, IS DENIED. By the Court, Theresa Barrett Male, Esquire For Plaintiffs Charles Rector, Esquire For Dwane S. Wilkinson Mark C. Duffie, Esquire For Heather Clawser :sal Edgar B. Bayley, J. -9- DWANE E. WILKINSON AND CONSTANCE S. WILKINSON, PLAINTIFFS V. DWANE S. WILKINSON AND HEATHER L. CLAWSER (formerly Wilkinson), IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DEFENDANTS 01-4017 CIVIL TERM IN RE: (1) MOTION OF PLAINTIFFS FOR JUDGMENT ON THE PLEADINGS AGAINST BOTH DEFENDANTS AND (2) PRELIMINARY OBJECTION OF PLAINTIFFS TO STRIKE THE ANSWER AND NEW MATTER OF DEFENDANT, HEATHER L. CLAWSER BEFORE BAYLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this day of September, 2003, IT IS ORDERED: (1) The motion of plaintiffs for judgment on the pleadings against defendant Dwane S. Wilkinson, IS GRANTED. Judgment is entered in favor of Dwane E. Wilkinson and Constance S. Wilkinson against Dwane S. Wilkinson for $22,833.19 with prejudgment interest of 6% per annum. (2) The preliminary objection of plaintiffs to strike the answer and new matter of defendant, Heather L. Clawser, IS DENIED. (3) The motion of plaintiffs for a judgment on the pleadings against defendant, Heather L. Clawser, IS DENIED. 02-4017 CIVIL TERM Theresa Barrett Male, Esquire For Plaintiffs Charles Rector, Esquire For Dwane S. Wilkinson Mark C. Duffie, Esquire For Heather Clawser :sal By the Court, Edgar B. Bayley, J.