Didyk v. Burns

41 Pa. D. & C.3d 315, 1986 Pa. Dist. & Cnty. Dec. LEXIS 299
CourtPennsylvania Court of Common Pleas, Luzerne County
DecidedMarch 14, 1986
Docketno. 4537-C of 1984
StatusPublished

This text of 41 Pa. D. & C.3d 315 (Didyk v. Burns) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Luzerne County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Didyk v. Burns, 41 Pa. D. & C.3d 315, 1986 Pa. Dist. & Cnty. Dec. LEXIS 299 (Pa. Super. Ct. 1986).

Opinion

DALESSANDRO, J.,

[316]*316NATURE OF PROCEEDINGS

This matter is before the court on defendants’ petition to open default judgment and petition to join an additional defendant nunc pro tunc.

HISTORY AND FACTS

On December 6, 1982, in Wilkes-Barre, a 1978 Buick owned by female defendant and operated by male defendant allegedly collided with a motorcycle on which plaintiff Didyk was riding as a passenger. Plaintiffs, residents of Dallas, Pa., filed a complaint on November 13, 1984 and seek to recover medical expenses, loss of earnings and pain and suffering; defendants were personally served at their residence in Wilkes-Barre on November 14, 1984 by a deputy sheriff. On January 3, 1985, a notice of intent to enter a default judgment was sent by plaintiffs by regular mail to defendants’ residence and. to defendants’ automobile liability insurance carrier. Pursuant to plaintiffs’ praecipe for default judgment for want of an appearance or answer, judgment was entered in favor of plaintiffs by the prothonotary of Luzerne County on January 16, 1985.

On September 16, 1985, defendants filed a petition to open default judgment and a petition to join an additional defendant nunc pro tunc; plaintiffs’ answers were filed on September 26, 1985. These petitions are presently before the court.

DISCUSSION AND LAW

A motion to open judgment addresses itself to irregularities predicated on matters outside the record. National Recovery Systems v. Monaghan, 322 Pa. Super. 183, 469 A.2d 244 (1983). “In determining whether a judgment by default should be [317]*317opened, the court acts as a court of conscience.” Ridgid Fire Sprinkler Service v. Chaiken, 333 Pa. Super. 213, 216-217, 482 A.2d 249, 251 (1984). The Pennsylvania Supreme Court has held as follows:

“A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. The court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused. ” (Emphasis in original; citations omitted.) Schultz v. Erie Ins. Exchange, 505 Pa. 90, 93, 477 A.2d 471, 472 (1984).

Defendants argue that they have squarely met the three requirements as enumerated in Schultz, supra, and are entitled to have the judgment against them opened. All three criteria must be met, and the three requirements must coalesce. McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698, 700 (1973); Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa. Super. 145, 148, 439 A.2d 792, 794 (1982).

Timeliness of a petition to open a default judgment is measured from the date of notice that the default judgment has been entered. Ruczynski v. Jesray Construction Corp., 457 Pa. 510, 512, 326 A.2d 326, 328 (1974); Ridgid Fire Sprinkler Service, supra, at 218, 482 A. 2d at 252. In the case sub judice, defendants aver in their petition that the entry of default judgment was received by Allstate’s claim representative1 on or about January 21, 1985; on January 22, 1985, John J. Aponick, Jr., Esq., counsel for Allstate, was notified of the default and [318]*318called plaintiffs’ counsel, requesting concurrence in defendants’ proposal to open the default judgment. Nevertheless, a petition to open the judgment was not filed until Séptember 16, 1985, 238 days after the judgment had been entered in Luzerne County. However, defendants maintain that the petition was timely filed inasmuch as plaintiffs’ counsel indicated to a representative of Allstate that he would recommend to his clients that the judgment be opened.2 Nevértheless, by defendants’ own averment as contained in paragraph 26 of their petition, they had notice as of May 21, 1985 that plaintiffs would not stipulate to open the defahlt judgment. Defendants slept on their rights for nearly four months before petitioning to open the judgment. Accordingly, under these circumstances, such a petition was not timely filed. See Ridgid Fire Sprinkler Service, supra, at 219, 482 A.2d at.252, and cases cited therein.

In addition, defendants contend that their attorney’s attempts to reach a satisfactory settlement should excuse the delay; we disagree. Defendants aver that as late as early August of 1985, their counsel’s attempts to negotiate a settlement were unsuccessful. However, the petition to open the judgment was not filed until September 16, 1985, more than one month later.. These facts do not present a scenario sufficient to excuse defendants’ delay in filing the petition.

Nor do defendants’ contentions that plaintiffs misdirected their correspondence to representatives within Allstate’s office and that Allstate’s claims office moved from Warrington, Pa., to Horsham, Pa., impress this court as sufficient justification for the [319]*319delay. Defendant Joseph J. Bums confirmed by his deposition taken on April 7, 1985 that he mailed the complaint to Allstate’s claim office in Warrington. Although plaintiffs counsel may have sent notices of intention to take a default judgment to a representative of Allstate who had been replaced by someone else, they were not required to do so. See Pa.R.C.P. 237,1.

Finally, defendants contend that the delay should be excused because plaintiffs’ counsel was well aware that Mr. Aponick is counsel for Allstate in the Luzerne County area and thus should have notified him of their intention to take a default judgment. It is significant that at no time prior to the entry of default judgment did Mr. Aponick or anyone from his office or any other law office enter their appearance on behalf of defendants. As our Superior Court recently held in Ridgid Fire Sprinkler Service, supra, at 221, 482 A. 2d at 254:

“There is no requirement that notice be given to counsel who has not entered an appearance; and failure to give such unnecessary notice will not excuse a defendant’s default.”

Furthermore, Pa.R.C.P. 237.1(a) provides, in pertinent part:

“(a) No judgment by default 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 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 10 days prior to the date of the filing of the praecipe. ...” (Emphasis added.)

In the instant case, notice was given to defendants and their insurance carrier; no notice was given to defendants’ attorney because there was no attorney of record. “It would be unreasonable, [320]*320however, to impose upon an innocent plaintiff the burden of ascertaining at his peril the identity of defendant’s counsel when no attorney has entered an appearance of record.” Ridgid Fire Sprinkler Service, supra, at 223, 482 A.2d at 254.

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Related

Schultz v. Erie Insurance Exchange
477 A.2d 471 (Supreme Court of Pennsylvania, 1984)
Explo, Inc. v. Johnson & Morgan
441 A.2d 384 (Superior Court of Pennsylvania, 1982)
Ruczynski v. Jesray Construction Corp.
326 A.2d 326 (Supreme Court of Pennsylvania, 1974)
Keystone Boiler Works, Inc. v. Combustion & Energy Corp.
439 A.2d 792 (Superior Court of Pennsylvania, 1982)
National Recovery Systems v. Monaghan
469 A.2d 244 (Supreme Court of Pennsylvania, 1983)
Zakian v. LILJESTRAND
264 A.2d 638 (Supreme Court of Pennsylvania, 1970)
Ridgid Fire Sprinkler Service, Inc. v. Chaiken
482 A.2d 249 (Supreme Court of Pennsylvania, 1984)
McCoy v. Public Acceptance Corp.
305 A.2d 698 (Supreme Court of Pennsylvania, 1973)

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Bluebook (online)
41 Pa. D. & C.3d 315, 1986 Pa. Dist. & Cnty. Dec. LEXIS 299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/didyk-v-burns-pactcomplluzern-1986.