HomeMy WebLinkAbout92-34 CivilGWEN ARNETT,
Plaintiff
V.
MICHAEL J. DAY,
Defendant
IN THE COURT O COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 34 CIVIL 992
CIVIL ACTION � LAW
1N RE: DEFENDANT'S MOTION TO STRIKE 1,PNTRY
OF DEFAULT JUDGMENT
BEFORE HESS and OLER JJ.
ORDER OF COURT
AND NOW, this 16"�4 day of August, 199, upon careful
consideration of Defendant's Motion to Strike Entry of Default
Judgment, and of the briefs and oral arguments presented in the
matter, the Defendant's Motion is GRANTED and the default judgment
is STRICKEN. Requests of the parties for awards of attorney's fees
are DENIED.
BY THE COURT,
Dennis R. Sheaffer, Esq.
111 N. Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Counsel for Plaintiff
Michael J. Hanft, Esq.
3780 Trindle Road
Chelsea Square
Camp Hill, PA 17011
Counsel for Defendant
:rc
J.
4
Q
GWEN ARNETT,
Plaintiff
V.
MICHAEL J. DAY,
Defendant
Oler, J.
IN THE COURT Ok COMMON PLEAS OF
CUMBERLAND COU TY, PENNSYLVANIA
NO. 34 CIVIL 11992
CIVIL ACTION -'LAW
IN RE: DEFENDANT'S MOTION TO STRI
OF DEFAULT JUDGMENT
BEFORE HESS and OLER, JJ
OPINION AND ORDER OF COURT
At issue in the present case, involving clai:
contract, unfair trade practices, and fraud, is t.
default judgment entered upon praecipe in favor of
praecipe was premised upon Defendant's failure t
answer to Plaintiff's complaint. The facts
follows:
s for breach of
e validity of a
Plaintiff. The
file a timely
be stated as
Following entry of a civil judgment by a dis rict justice in
favor of the Plaintiff, Defendant filed an appeal to this Court on
January 6, 1992. Pursuant to Pa. R.C.P.D.J. N6. 1004, a rule
issued upon the Plaintiff to file a complaint, ashe did so on
January 24, 1992. On February 10, 1992, accordingTo Plaintiff, an
oral extension was granted to Defendant's counsel for the filing of
an answer to the complaint; the terms of the a tension are in
dispute.'
On March 2, 1992, Plaintiff's counsel faxed a letter to
Defendant's counsel, stating that the orally granted extension was
'
Compare Plaintiff's
P Answer to Defendant's otion to Strike
Entry of Default Judgment, Exhibit B, with Defend nt's Motion to
Strike Entry of Default Judgment, paragraph 2.
No. 34 Civil 1992
for a period ending February 23, and requesting
filing of the
answer by the close of business on March 3, 1992; in the absence of
such filing, it was stated that Plaintiff's counsel would "proceed
with this matter on behalf of my client. ,2 WhEin, according to
Plaintiff, no response was received to this letter, a default
judgment was taken on March 5, 1992, against theDefendant.'
In response to the default judgment, Deflendant filed a
Petition To Strike or Set Aside the Judgment and T Stay Execution
upon Judgment on March 6, 1992. This Court issued a rule upon
Plaintiff to show cause why the default judgmen should not be
stricken, and an order staying execution on the', judgment.4 In
response to the rule, Plaintiff filed an Answer on March 13, 1992.
Proceeding in accordance with Pa. R.C.P. 209, Defendant served
a Notice To Take Deposition of Plaintiff's counisel on the said
counsel on or about March 13, 1992.5 Plaintiff's I pounsel replied,
in a letter dated March 20, that he would not atteni the deposition
2 Defendant's Motion To Strike Entry of Default Judgment,
Exhibit B; Plaintiff's Answer To Defendant's Motion' To Strike Entry
of Default Judgment, paragraph 4.
s Plaintiff's Answer to Defendant's Motion to: Strike Entry of
Default Judgment, paragraph 7; Defendant's Motion 'To Strike Entry
of Default Judgment, paragraph 11.
4 On March 9, 1992, Defendant filed an Answer 'to the Original
Complaint.
5 Defendant's Motion To Strike Entry of De ault Judgment,
Exhibit G; Plaintiff's Answer to Defendant's Motion To
Strike Entry
of Default Judgment, paragraph 16.
2
No. 34 Civil 1992
without a subpoena and witness fee.' In response to Plaintiff's
counsel, in a letter dated March 24, Defendant's counsel requested
the withdrawal of the default judgment by Ma ch 25; in lieu
thereof, Defendant's counsel stated that, due to the other's
nonattendance at the deposition, the Defendant; would have to
proceed with a motion to strike the default judgment, and stay any
action on the previous petition.'
On March 264, Defendant filed a more extensive but successive,
Motion To Strike Entry of Default Judgment, and a Petition To Open
Default Judgment. In the motion to strike, Def ndant requested
that proceedings on his previous petition to strike be stayed
pending resolution of the new motion.' On March 27, this Court
issued rules upon Plaintiff, respecting both the petition and
motion, to show cause why the relief requested by Defendant should
not be granted; answers in response to the rules were filed by
Plaintiff on April 15.
Listed for argument by Defendant, and brief d and argued by
counsel, is the matter of Defendant's new motion to strike only.
6 Defendant's Motion To Strike Entry of D'fault Judgment,
Exhibit H; Plaintiff's Answer to Defendant's Motion To Strike Entry
of Default Judgment, paragraph 17.
7 Defendant's Motion To Strike Entry of De'
Judgment,
Exhibit I; Plaintiff's Answer to Defendant's Motio To Strike Entry
of Default Judgment, paragraph 18.
8 Defendant's Motion To Strike Entry of D (fault Judgment,
claim for relief clause.
C
No. 34 Civil 1992
For the reasons stated in this Opinion, the motion will be granted.
Plaintiff first argues as a procedural matte that all issues
raised in the new motion are waived if not previou ly raised in the
initial petition. Cited in support of this proposition is Roselon
Industries, Inc. v. Associated Knitting Mills, 2 1 Pa. Super. 8,
289 A.2d 239 (1972) (reference made to Pa. R.C.P. 2959, providing
for inclusion in single petition of all grounds for striking or
opening judgment). However, in view of the fa t that the new
motion has intervened prior to any ruling upon the prior petition,
that no undue delay on the part of Defendant has occurred,' that
no prejudice has accrued to the Plaintiff from t e lapse of time
between petition and motion, that the rules of civ`l procedure are
to be "liberally construed to secure the just ... determination of
every action or proceeding to which they are applicable,"" and
that "[t]he court at every stage may disregard any error or defect
of procedure which does not affect the substantia' rights of the
9 The new motion was filed 21 days after entry of the default
judgment, and 20 days after the initial petition; c rrespondence of
counsel intervened between the entry of judgment and motion to
strike. See text accompanying notes 3-8 supra; :7f. Beacon Loan
Corp. v. Delaney, 6 Lycoming Rep. 184 (1958) (two month delay in
petition to open judgment, occasioned by negotiations between
counsel).
io Pa. R.C.P. 126.
4
No. 34 Civil 1992
parties,"11 it seems most appropriate to regard
new motion as
amendatory or supplemental to the earlier petition, as opposed to
an object of preemption. Cf. In Re General Election of Nov. 4,
1975 (No. 1), 71 D. & C.2d 68 (Pike Co. 1975) (second petition
challenging election results held not preempted hy prior filing).
For this reason, a basis for relief specified in the motion to
strike will not be deemed waived by reason of its mission from the
earlier petition. 12
Plaintiff next argues that the entry of the default judgment
at issue was in accordance with the Pennsylvania Rules of Civil
Procedure. However, as Defendant points out, a copy of neither a
10 -day notice of intention to file a praecipe for entry of a
default judgment nor a written agreement for an a tension of time
was attached to the praecipe as filed. Such an attachment is
required under Pa. R.C.P. 237.1(a), which provides as follows:
No judgment by default shall be a tered
by the prothonotary unless the praecipe for
entry includes a certification that a written
11
Id. "[C]ourts should not be astute in enforcing
technicalities to defeat apparently meritorious cl ims Davis
v. Safeguard Investment Co., 239 Pa. Super. 300, 3C 6, 361 A. 2d 893,
896 (1976).
12 In another procedural matter, it may be noted that Pa.
R.C.P. 209 has been said, in general, to be inapplicable to
petitions to strike off judgments. "That rule applies to petitions
to open judgments and other similar matters, but it does not apply
to petitions to strike off judgment, because alltd
the facts are
necessarily of record." Industrial Valley Bank Trust Co. v.
Norman, 46 D. & C.2d 199, 205 (Lebanon Co. 1969)aff'd, 219 Pa.
Super. 748, 280 A.2d 392 (1971).
5
No. 34 Civil 1992
notice of intention to file the praecipe was
mailed or delivered to the party against whom
judgment is to be entered and to his attorney
of record, if any, after the default occurred
and at least ten days prior to the date of the
filing of the praecipe. If a written
agreement for an extension of time specifies a
time within which the required action st be
taken and a default occurs there'fter,
judgment by default may be entered y the
prothonotary without prior notice unde this
rule. A copy of the notice or agreement'shall
be attached to the praecipe.
Pa. R.C.P. 237.1(a) (emphasis added).
The mandates of Pa. R.C.P. 237.1 have been 4refully adhered
to by the courts.13 Thus, in Feigley v. Suomela,, 129 Pa. Commw.
81, 564 A.2d 1032 (1989), the absence of a' 10 -day notice
certificate with a praecipe for entry of a default judgment was
held to warrant a striking of the judgment. In ti ',e present case,
where it appears that no such notice was sen and that the
existence of a written agreement was dubious at est,14 the lack
13 "Pa. R.C.P. 237.1 must be strictly construed.... [T]he rule
is mandatory in nature." Burkett v. Allstate In'. Co., 368 Pa.
Super. 600, 607, 534 A.2d 819, 823 (1987).
14 A number of difficulties are presented witi respect to any
contention that the letter dated March 2, 1992, 4rom Plaintiff's
counsel to Defendant's counsel, constituted a "written agreement"
for purposes of Pa. R.C.P. 237.1(a). First, a silgle letter does
not partake of the quality of mutual assent to the degree evidenced
by an exchange of letters. Cf. Southern Pennsylvania
Transportation Authority v. Ray, 131 Pa. Commw. 179, 569 A.2d 1020
(1991) [exchange of letters between counsel held sufficient to
constitute agreement for extension under Pa. R.C.PI 237.1(a)]; but
see Burkett v. Allstate Ins. Co., 368 Pa. Super. 6 0, 534 A.2d 819
(1987) (exchange of letters held insufficient in view of contents).
Second, the writing is not signed by the partagainst whom
enforcement is sought. And, third, the letter's request for the
filing of an answer within one day is more suggestive of a demand
than a consensual undertaking.
0
No. 34 Civil 1992
of the required attachment must yield the
Accordingly, the default judgment will be order
same result. 11
stricken."
ORDER OF COURT
AND NOW, this /0 -L day of August, 199:2, upon careful
consideration of Defendant's Motion to Strike Entry of Default
Judgment, and of the briefs and oral arguments resented in the
matter, the Defendant's Motion is GRANTED and the default judgment
is STRICKEN. Requests of the parties for awards oattorney's fees
are DENIED.
BY THE COURT,
Dennis R. Sheaffer, Esq.
111 N. Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Counsel for Plaintiff
J.
15 The acceptance of the praecipe by the prothonotary's
office, and any belief on the part of that office that such
attachment was not necessary, can not excuse i s absence. A
Prothonotary "has no judicial powers nor does he h ve power to act
as an attorney for others." Smith v. Safeguard Mutual Ins. Co.,
212 Pa. Super. 83, 86, 239 A.2d 824, 826 (1968). With respect to
a default judgment, the prothonotary acts in a purely ministerial
capacity. Maiorana v. Farmers & Merchants Bank, 319 Pa. Super.
338, 342, 466 A.2d 188, 190 (1983).
16 Both Plaintiff and Defendant have request ed an award of
attorney's fees on ground of vexatious conduct. Se Act of July 9,
1976, P.L. 586, §2, 42 Pa. C.S. §2503(7). But aA award of such
fees in this regard is largely a discretionary ,matter. See
Brenckle v. Arblaster, 320 Pa. Super. 87, 466 A.2d 1075 (1983) . In
the present case, the positions of counsel have b en of arguable
merit, and no award of attorney's fees will be granted.
7
No. 34 Civil 1992
Michael J. Hanft, Esq.
3780 Trindle Road
Chelsea Square
Camp Hill, PA 17011
Counsel for Defendant
:rc