HomeMy WebLinkAbout2010-2416 Civil
ERIE INSURANCE EXCHANGE, : IN THE COURT OF COMMON PLEAS OF
Subrogee of PAUL V. WEAVER, JR., : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
THE HOME DEPOT, INC., :
DEFENDANT : 10-2416 CIVIL TERM
MEMORANDUM OPINION AND ORDER OF COURT
Before Masland, J., August 10, 2010:--
Before the court is the petition to open default judgment filed by
defendant, Home Depot, Inc., against plaintiff, Erie Insurance Exchange,
subrogee of Paul V. Weaver, Jr. Following briefing and argument by the parties,
defendant's petition is granted.
This matter arises from defendant's allegedly negligent installation of a
refrigerator in Mr. Weaver's home. After compensating Mr. Weaver in
accordance with its insurance policy, the plaintiff insurance company initiated the
instant suit by Sheriff's service upon an employee at one of defendant's retail
stores. Unfortunately, the employee was inexperienced and failed to forward the
relevant documents to defendant's legal department in Georgia. Due to this
unintentional mistake, defendant's legal department did not timely reply to
plaintiff's complaint and a default judgment was entered.
On June 22, 2010, defendant's legal department received a letter from
plaintiff demanding payment of the $4,146.05 default judgment. Until receipt of
this letter, defendant's legal department was unaware of plaintiff's suit. On July
6, 2010, defendant filed the instant petition to open default judgment.
10-2416 CIVIL TERM
To be successful, a petition to open a judgment must meet the following
test: the petition must be promptly filed; the party seeking relief must show a
meritorious defense; and, the failure to appear or file a timely answer must be
excused. Cintas Corp. v. Lee’s Cleaning Serv., Inc., 549 Pa. 84, 700 A.2d 915
(1997).
Here, defendant's petition meets all the necessary criteria. First,
defendant promptly filed its petition within two weeks of receiving actual notice of
the judgment. Second, defendant alleges the meritorious defense that it was not
responsible for the installation of Weaver's refrigerator and that the responsible
third-party contractor would defend it should the judgment be opened. Third,
defendant's failure to defend was reasonably explained as the result of an
unintentional mistake by one of its retail store employees. As such, the delay is
excusable. Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773, 775 (Pa.
Super. 1983). Accordingly, defendant's petition to open default judgment is
granted.
ORDER OF COURT
AND NOW, this day of August, 2010, the petition of defendant,
GRANTED
Home Depot, U.S.A., Inc., to open default judgment is .
By the Court,
Albert H. Masland, J.
-2-
10-2416 CIVIL TERM
Reed J. Davis, Esquire
For Plaintiff
Kenneth M. Dubrow, Esquire
Bryan Werley, Esquire
For Defendant
:sal
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ERIE INSURANCE EXCHANGE, : IN THE COURT OF COMMON PLEAS OF
Subrogee of PAUL V. WEAVER, JR., : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
THE HOME DEPOT, INC., :
DEFENDANT : 10-2416 CIVIL TERM
ORDER OF COURT
AND NOW, this day of August, 2010, the petition of defendant,
GRANTED
Home Depot, U.S.A., Inc., to open default judgment is .
By the Court,
Albert H. Masland, J.
Reed J. Davis, Esquire
For Plaintiff
Kenneth M. Dubrow, Esquire
Bryan Werley, Esquire
For Defendant
:sal