Kalantary v. Mention

756 A.2d 671, 2000 Pa. Super. 185, 2000 Pa. Super. LEXIS 1523
CourtSuperior Court of Pennsylvania
DecidedJune 29, 2000
StatusPublished
Cited by8 cases

This text of 756 A.2d 671 (Kalantary v. Mention) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kalantary v. Mention, 756 A.2d 671, 2000 Pa. Super. 185, 2000 Pa. Super. LEXIS 1523 (Pa. Ct. App. 2000).

Opinions

MONTEMURO, J.:

¶ 1 Appellant, Cecil Mention, appeals from an order entered by the Court of Common Pleas of Philadelphia County, entering default judgment against him, setting aside a tax sale at which he had purchased property, ordering him to convey that property to its previous owner, and refunding him the purchase price. We reverse the order and vacate the default judgment.

¶ 2 In 1998, Appellee, Abraham Kalantary, filed a complaint against Appellant and the City of Philadelphia,1 alleging that Appellee’s property, located at 613 N. 18th Street in Philadelphia, had been seized and sold by the City for nonpayment of property taxes. The complaint alleged that the City had violated Appellee’s right to due process by selling the property without first informing him of its intent to do so, and sought damages, ejectment of Appellant, who had purchased the property at the sale, and a declaration that Appellee was the rightful owner.

¶ 3 A settlement conference was scheduled, at which all parties were required to be present. Appellee and the City reached a settlement. However, despite having been required to be present, neither Appellant nor his attorney attended. After waiting over an hour for Appellant to appear, the judge entered a default judgment against him setting aside the tax sale, ordering him to convey title to Appel-lee, and refunding him the purchase price of $4,100. Ten days after the default judgment was entered, Appellant filed a petition to open, which was denied. He then filed the instant appeal.

[T]he decision concerning whether to open a default judgment lies within the sound discretion of the trial court and its decision will not be reversed absent a manifest abuse of discretion or error of law.... The party seeking relief from [673]*673a default judgment must establish three elements: (1) the petition was timely filed; (2) a reasonable explanation or excuse for the default; and (3) the petitioner had a meritorious defense to the underlying claim.

Flynn v. Casa Di Bertacchi Corp., 449 Pa.Super. 606, 674 A.2d 1099, 1102 (1996). Further, the Pennsylvania Rules of Civil Procedure provide that if a petition to open a default judgment “is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense.” Pa.R.C.P. 237.3(b). “[This] rule supplies two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of the judgment.” Id., Note.

¶ 4 Appellant argues simply that the entry of the default judgment was inequitable, and an abuse of discretion. For a number of reasons, we agree.

¶ 5 First, Appellant’s petition to open was filed ten days after the entry of the default judgment, invoking the rule that the first two necessary elements are presumed. Consequently, a determination must be made as to whether he advanced a meritorious defense. In his petition to open, Appellant states that he has such a defense, as he “obtained the property via a Sheriffs sale in December 1995. Since th[at] date ..., [he] has expended substantial sums of money to repair, improve and rehabilitate the property.” (Petition to Open Default Judgment at ¶ 6). Attached to the petition are photographs of improvements allegedly made to the property, and copies of checks payable to a contractor totaling $28,000.

¶ 6 After summarily taking away his property, the trial court awarded Appellant only his $4,100 purchase price. The benefits of the time and money Appellant spent in refurbishing the property were arbitrarily conferred upon Appellee. Appellant’s defense, therefore, is that unjust enrichment of Appellee resulted from the setting aside of the sale. See Duquesne Litho, Inc. v. Roberts & Jaworski, Inc., 443 Pa.Super. 170, 661 A.2d 9, 12 (1995) (“A recovery for unjust enrichment is proper if one party is enriched by another, and an injustice would result if recovery for the enrichment is denied.”). This is indeed a meritorious defense to the underlying claim.

¶ 7 Further, in his preliminary objections to Appellee’s complaint, and in his answer, Appellant asserts the statute of limitations as a defense. Appellee’s complaint was filed on October 23,1998, nearly three years after the alleged tax sale. 42 Pa.C.S.A. § 5522(b)(5) provides that the period of limitations for “action[s] or proceeding[s] to set aside a judicial sale of property” is six months. Although Appel-lee claimed in his answer to the preliminary objections that the statute was tolled because he did not learn of the sale for some time, at this point in the proceedings the expiration of the statute is a meritorious defense, as it would be successful if proven at trial.

¶ 8 Therefore, as all three of the necessary elements are present, the trial court erred in refusing to open the default judgment.

¶ 9 We also find that the default judgment should not have been entered in the first place. In support of its actions, the only authority cited by the trial court was Pennsylvania Rule of Civil Procedure 218, which has been held to govern attendance at pre trial conferences, and provides,

(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.
(b) If without satisfactory excuse a defendant is not ready, the plaintiff [674]*674may (1) proceed to trial, or, (2) if the case called for trial is an appeal from compulsory arbitration, either proceed to trial or request the court to dismiss the appeal and reinstate the arbitration award.
(c) A party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse.

Pa.R.C.P. 218.

¶ 10 Rule 212, which governs pre-trial conferences in general, does not include sanctions for non-attendance. However, we have held that Rule 218 governs attendance at pre-trial conferences as well as at trials, because “[e]ounsel is under.the same duty to appear at conciliatory or pretrial conferences as he or she is to appear for trial.” Anderson v. Financial Responsibility Assigned Claims Plan, 432 Pa.Super. 54, 637 A.2d 659, 660 (1994) (quoting Lee v. Cel-Pek Industries, Inc., 251 Pa.Super. 568, 380 A.2d 1243, 1244 (1977)). Here, Appellant, who was the defendant, failed to appear at the settlement conference. Based on the proposition cited above, therefore, Rule 218(b), seems to govern. This rule provides simply that in the event the defendant fails to appear for trial, the plaintiff may proceed ex parte.

¶ 11 It could be argued that the judgment against Appellant was the result of an ex parte settlement conference, analogous to a Rule 218(b) ex parte trial, and that therefore the trial court complied with the rule.

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Bluebook (online)
756 A.2d 671, 2000 Pa. Super. 185, 2000 Pa. Super. LEXIS 1523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kalantary-v-mention-pasuperct-2000.