Marzullo v. Stop-N-Go Food Stores of Pittsburgh, Inc.

527 A.2d 550, 364 Pa. Super. 106, 1987 Pa. Super. LEXIS 7741

• Court: Supreme Court of Pennsylvania
• Decided: April 13, 1987
• Docket: 00559
• Status: Published

Opinions

POPOVICH, Judge:

This is an appeal from an order of the trial court which denied relief to appellant-defendant, Stop-N-Go Food Stores of Pittsburgh, Inc., after the filing of a petition to strike and/or open a default judgment. We affirm.

Appellant raises the following issues: (1) whether thé default judgment was entered improperly because appellee-plaintiff, John Marzullo, Jr., failed to file a notice of intent to take a default judgment; (2) whether appellant is entitled to reopen the judgment because it acted promptly and had a reasonable excuse and a complete defense to the appellee’s claim; and (3) whether the default judgment was entered improperly for $14,575.27 because the appellee’s claim was unliquidated.

We have reviewed appellant’s contention and conclude that appellant is not entitled to relief. The third issue has been waived because appellant failed to present this theory at the trial level. Pa.R.A.P. 302(a). The other two issues must also be rejected.

On June 11,1985, appellee filed a summons in civil action against his employer, Stop-N-Go Food Stores. On July 1, 1985, appellant filed a rule upon the appellee to file a complaint, and a complaint was filed five weeks later. On August 22, 1985, preliminary objections were filed on the basis that appellee failed to state a cause of action upon which relief could be granted. Appellee contended that his employer unilaterally changed the compensation program without additional consideration and breached the appellee’s management contract.

These objections were granted in part and denied in part, and appellee was directed to file a more definite complaint. On October 16th, appellee filed an amended complaint. On November 15th, appellant filed a second set of preliminary objections to the amended complaint; these were dismissed without prejudice on December 6, 1985.

On January 13, 1986, appellant filed a motion for reconsideration, which was denied on January 24th. On February 18th a default judgment was entered. Appellant’s petitions to strike and/or open judgment were denied, and this appeal followed.

Although appellant concedes the fact that an answer was not filed timely, appellant contends that appellee was required to file a notice of intent to enter a default judgment pursuant to Pa.R.C.P. 237.1. We do not agree.

Pa.R.C.P. 237.1(a) states:

Rule 237.1. Notice of Praecipe for Entry of Default Judgment

(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 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 must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe.

(b) This rule does not apply to (1) a judgment entered pursuant to an order of court or rule to show cause or (2) any action subject to the provisions No. 6 of 1974, P.L. 13, 41 P.S. § 101 et seq.

We have said that “[wjhether to strike a default judgment in an assumpsit action is left to the trial court, whose decision will not be disturbed absent a manifest abuse of discretion or an error of law. Paules v. Sminkey, 290 Pa.Super.Ct. 223, 227, 434 A.2d 724, 726 (1981).” Giallorenzo v. American Druggists Insurance Company, 301 Pa.Super. 294, 297, 447 A.2d 974, 975 (1982). We also recognize that “[jjudgments are stricken only for irregularity on the record. Once regularly entered, they can be opened only upon equitable principles.” Estate of Blanche B. Levy By Levy v. CNA Insurance Company, 338 Pa.Super. 191, 198, 487 A.2d 919, 923 (1985). (Emphasis in original) (Citations omitted).

Thus, our concern is whether the record as filed by appellee “at entry is adequate to sustain the judgment, or is defective in some way.” Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 501 Pa. 1, 8, 459 A.2d 720, 724 (1983) (citations omitted). In this case, because the record is not defective, we affirm the action of the trial court.

Our review of the record reveals that the parties executed a written agreement to file “an Answer or otherwise plead” by February 3, 1986. In a letter dated January 7, 1986, appellant’s counsel forwarded a letter to appellee’s counsel which confirmed the existence of a written agreement requiring appellant to respond to appellee’s amended complaint. This letter stated the following:

“This will confirm an extension of time of thirty (30) days from January 3, 1986 for Defendant to file an Answer or otherwise plead to Plaintiffs Complaint____” Record at No. 22, Exhibit C. (Emphasis added).

Appellant did not file an answer to the complaint; however, within the thirty day period appellant filed a “MOTION FOR RECONSIDERATION” on January 13, 1986, to the trial court’s order which denied appellant’s preliminary objections for the second time.

On January 24, 1986, the same date that the motion for reconsideration was denied, appellee’s counsel drafted a letter which consisted of the following language:

January 24, 1986

Nicholas A. Pasciullo, Esquire

Jones, Gregg, Creehan and Gerace

16th Floor, Grant Building

Pittsburgh, PA 15219-2294

Re: Marzullo v. Stop-n-Go

Dear Mr. Pasciullo:

I was present before Judge Narick on January 24,1986, at 9:30 at the date, time and place you designated in your letter of January 17, 1986. When, at 10 a.m., all other Motions had been presented, Judge Narick inquired as to the reason for my presence in the courtroom. I explained the situation and the Judge signed the Order attached to my Answer denying your Motion for Reconsideration and ordering $200.00 counsel fees.

A conformed copy of the Order of Court is enclosed herein. Pursuant to that Order, kindly forward to me a check payable to Brennan, Robins & Daley in the amount of $200.00 on or before February 3, 1986.

As you did ultimately schedule the argument on your Motion for Reconsideration, I will live with my extension of time of thirty days granted on January 3 1986, thereby expecting your answer to be filed on or before February 3, 1986.

Sincerely yours,

BARRY M. SIMPSON

BMS/ti

Enclosure

Record at # 20, Exhibit “A”.

The letter which was dated January 17, 1986 consisted of the following:

January 17, 1986

Barry M. Simpson, Esquire

Brennan, Robins & Daley

Nineteenth Floor

Commonwealth Building

Pittsburgh, PA 15222

Re: Marzullo v. Stop-N-Go

Dear Mr. Simpson:

This is to notify you that defendant's Motion for Reconsideration will be brought before Judge Narick at 9:30 a.m. on Friday, January 24, 1986.

In addition, you will note that in my request for an extension of time, I advised you that I would Answer or otherwise plead to plaintiffs Complaint. Defendant's Motion for Reconsideration is a pleading other than an Answer to plaintiff's Complaint.

It is apparent I must remind you and the Court of defendant’s courtesy in extending time for plaintiff to file his Complaint.

, , Very truly yours,

Nicholas A. Pasciullo

„.____ NAP/jd

Record at # 22, Exhibit “D”

When examining whether the filing of a motion for reconsideration could be the equivalent of the filing of a pleading, we are guided by Pa.R.C.P. 131 which states:

Rule 131. Rules in Pari Materia

Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings. Rules in pari materia shall be construed together, if possible, as one rule or one chapter of rules.

We also must refer to another rule, Pa.R.C.P. 1017, which states:

Rule 1017. Pleadings Allowed

(a) The pleadings in an action are limited to a complaint, an answer thereto, a reply if the answer contains new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, and preliminary objections and an answer thereto.

Thus, because the rules of civil procedure must be considered in pari materia, the filing of a motion for reconsideration is not equivalent to the filing of a pleading. Accordingly, when appellant filed a motion for reconsideration, appellant was still required to file an answer or “otherwise plead” by the extension date.

According to appellant, the case of Estate of Levy By Levy v. CNA Insurance Company, supra, is controlling and requires appellant to file a Rule 237.1 notice before entering a default judgment. However, this case is distinguishable.

In Levy, appellants-plaintiffs filed a complaint in assump-sit/trespass against an insurance company and its authorized agent for the loss of certain items which were severely damaged by a fire. Appellants initially granted appellees an extension to file an answer to February 19, 1982. Instead of filing an answer, appellees filed preliminary objections. These objections were granted in part, and, as a result, appellants filed an amended complaint on April 5, 1982.

Another extension to file an answer was given, and this time appellees filed a second set of preliminary objections. These objections were denied on June 1, 1982 and appellees were given twenty days to file an answer. Instead of filing an answer, appellees filed a request for production of documents and notice of service of interrogatories after the twenty day period lapsed, which was on June 23, 1982. Appellants filed a praecipe for judgment on June 23, 1982. Judgment was entered due to appellants’ failure to file an answer. In Levy, we said:

Appellants do not deny their failure to give written notice of their praecipe; nevertheless, they argue that two agreements for the extension of time and the order of court dated June 1, 1982 dismissed the notice requirement. Rule 237.1 provides several exceptions to the notice requirement, two of which are as follows:

1) If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule.

2) This rule does not apply to ... a judgment entered pursuant to an order of court or rule to show cause.

Appellants would have us hold that their consent to give appellees additional time to file answers to the original and amended complaints were written agreements which rendered the notice unnecessary. It is true that following oral consent given by appellants, letters dated January 19, 1982 and May 3, 1982 from appellees’ counsel were written confirmations of extensions to plead to the complaint and amended complaint.

However, the dispute here did not arise from appellees’ failure to file answers to the original complaint and to the amended complaint within 20 days of the filing of the amended complaint. It was not until appellees’ preliminary objections to the amended complaint were denied by order dated June 1, 1982, and 20 days had elapsed from that date, that appellees were in default. Appellants did not consent to an extension to file an answer beyond June 21, 1982; therefore, there was no exception to the notice of intent to file a praecipe. The two earlier agreements to extend the time for filing pleadings do not apply to the 20-day response period which commenced on June 1, 1982.

Id., 388 Pa.Superior Ct. at 196, 487 A.2d at 922.

In this case, we are not presented with a scenario where preliminary objections had been filed and the parties were awaiting the trial court’s disposition on the merits. If such were the case, the rules are clear. A party is entitled to an additional twenty days in which to respond according to the following:

Rule 1028. Preliminary Objections

(a) Preliminary objections shall state specifically the grounds relied upon.

(b) All preliminary objections shall be raised at one time. They may be inconsistent. Two or more preliminary objections may be raised in one pleading.

(c) A party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. The court shall determine promptly all preliminary objections. If an issue of fact is raised, the court shall take evidence by depositions or otherwise.

(d) If the preliminary objections are overruled, the objecting party shall have the right to plead over within twenty (20) days after notice of the order or within such other time as the court shall fix.

(e) If the filing of an amendment, an amended pleading or a new pleading is allowed or required, it shall be filed within twenty (20) days after notice of the order or within such other time as the court shall fix. (Emphasis Added). Instead, we have before us a procedural history which

establishes that preliminary objections had been denied on December 6, 1985. Although appellant had an additional twenty days in which to “plead over”, the parties had agreed to extend the time until February 3, 1986. Id. When an answer was not filed, appellee waited an additional fifteen (15) days before entering a default judgment.

Thus, appellant was not waiting for the court to rule on its preliminary objections; rather, appellant was asking the court to reconsider its ruling. Under these circumstances, Levy is distinguishable and is inapposite to the facts of the case. Additionally, our research has revealed no support for the filing of a petition for reconsideration to preliminary objections either under the Allegheny County Local Rules or under the Pennsylvania Rules of Civil Procedure.

By analogy, both in the civil and criminal areas, the filing of a motion to reconsider does not augment the time period for filing an appeal to our Court. Erie Human Relations Commission v. Erie Insurance Exchange, 304 Pa.Super. 172, 174, 450 A.2d 157, 158 (1982) (“A petition for reconsideration will not stay the appeal period”); Commonwealth v. Holden, 358 Pa.Super. 238, 240, 516 A.2d 1273, 1274-5 (1986) (“ 'The mere filing of a motion for modification and the court’s scheduling of a hearing do not affect the running of the thirty day period for filing a timely notice of appeal____’”) (quoting Pa.R.Crim.P. 1410 Commentary); See also Pa.R.Crim.P. 1410 and Pa.R.A.P. 1701.

The record indicates that the trial court denied appellant’s reconsideration motion. The trial court also awarded appel-lee counsel fees under 42 Pa.C.S.A. § 2503(7) which states:

The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter:

(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a mat-ter____

Appellee sought counsel fees for the following reasons:

7. Plaintiffs counsel believes and therefore alleges that Judge Standish’s Order of Court [which dismissed the second set of preliminary objections] is the law of the case, that it is inappropriate for any other judge to overrule or reconsider Judge Standish’s Order, and that Defendant’s counsel has acted with inpropriety [sic] in (a) misrepresenting the nature of the pleading he intended to file when he requested an extension after his answer was already untimely and (b) in attempting to schedule this matter before Judge Narick rather than Judge Standish, and (c) in misrepresenting the past determinations of this Court.

“ANSWER TO MOTION FOR RECONSIDERATION AND REQUEST FOR COUNSEL FEES”1 Record at No. 18, Allegation # 7.¹

The order which was entered by the trial court on January 24, 1986, states:

ORDER OF COURT

AND NOW, to-wit, this 24th day of January, 1986, after consideration of the Defendant’s Motion for Reconsideration and Plaintiff’s Answer and Motion for Counsel Fees filed in response thereto, it is hereby ADJUDGED, ORDERED and DECREED that the Defendant’s Motion for Reconsideration is denied. It is further ORDERED that the Defendant’s counsel shall pay to Plaintiff’s counsel within ten (10) days of this order the sum of Two Hundred ($200.00) Dollars as attorneys fees awarded under 42 Pa.C. § 2503(7).

_S/ Narick_J.

J 10:00 am.

Record at #19.² (Interlineation in original)

Because the trial court failed to vacate or otherwise nullify its original order denying appellant’s preliminary objections, appellant was not entitled to any additional time beyond February 3rd in which to file “an Answer or otherwise plead to Plaintiff’s Complaint.’?

Also, we note that judgment was not taken immediately after appellant was in default. The appellee waited fifteen (15) days before entering judgment. Compare Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. 265, 269, 430 A.2d 278 (1981) (no snap judgment where judgment was entered twenty-seven days after the extension expired) with Queen City Electrical Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980) (one day); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970) (one day); Safeguard Investment Co. v. Energy Service Associates, 258 Pa.Super. 512, 393 A.2d 476 (1978) (one day); Toplovich v. Spitman, 239 Pa.Super. 327, 361 A.2d 425 (1976) (four days).

With respect to appellant’s contention that judgment should be opened because it acted promptly and had a reasonable excuse and a complete defense to the appellee’s claim, we have applied the following guidelines:

“A petition to open a judgment is addressed to a court’s equitable powers, and the exercise of those powers will not be disturbed on appeal in the absence of an abuse of discretion.” Hutchison v. Hutchison, 492 Pa. 118, 123, 422 A.2d 501, 503-04 (1980). “Nevertheless, before a court may properly open a judgment the party seeking such relief must (1) timely file his petition to open; (2) show a meritorious defense ..., and (3) reasonably explain the default which occasioned entry of the judgment.” Service Bureau Co. v. Taylor, Meyer & Associates, 277 Pa.Super. 560, 566, 419 A.2d 1291, 1294 (1980).

Horan v. R.S. Cook & Associates, Inc., 287 Pa.Super. at 265, 430 A.2d at 279.

Because appellant has failed to set forth in his petition to open any defenses or an explanation for his failure to file an answer, the trial court did not abuse its discretion in denying appellant’s petition to open. Expío, Inc. v. Johnson & Morgan, 295 Pa.Super. 133, 441 A.2d 384 (1982).³

Order is affirmed.

BROSKY, J., files a dissenting opinion.

1 . Both parties indicate in their briefs that appellant was absent at the scheduled time when appellant was to present his motion for reconsideration. Brief for Appellant at 3; Brief for Appellee at 3. Instead, appellee presented appellant’s motion.

2 . The record indicates that Judge Narick initially issued two orders in this case. The first one, dated September, 1985, denied appellant’s preliminary objections and ordered appellee to file an amended complaint. Judge Narick also stated that appellant could renew its preliminary objections at that time. The other order dated October 2, 1985 granted appellee leave to file his amended complaint.

3 . According to the dissent, the judgment should be stricken because a jurisdictional defect occurred in the proceedings below which voided the agreement of counsel to file an answer or otherwise plead. Under the dissent’s theory, "a trial judge may not pass upon the decision of another trial judge of the same court on an interlocutory matter." Dissenting Opinion at 556.

However, in this case, another judge did not “pass upon the decision of another trial judge”. Id. Instead, Judge Narick granted appellee the opportunity to amend his complaint. After the amended complaint and second set of preliminary objections were filed, a decision was made by Judge Standish. Judge Standish did not “pass upon" whether Judge Narick properly allowed appellee the opportunity to amend his complaint. Rather, Judge Standish ruled upon the second set of preliminary objections.

The prohibition against relitigating an issue by another judge of coordinate jurisdiction is designed to prevent "rescinding the order of a colleague." Commonwealth v. Madden, 342 Pa.Super. 120, 126, 492 A.2d 420, 424 (1985). Because no order of another judge was rescinded or otherwise overruled, the jurisdictional theory of the dissent must be “quashed.”

The dissent also implies that our decision in this case is contradictory to that reached by the Court in Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). However, Reifinger is distinguishable from the instant case on one essential point. A fundamental prerequisite for application of the co-equal judges rule is that the second co-equal judge have no new evidence to consider. Id., 315 Pa.Superior Ct. at 151, 461 A.2d at 842; Commonwealth v. Griffin, 257 Pa.Super. 153, 157, 390 A.2d 758, 760 (1978). The Court in Reifinger thoroughly discussed the fact that the record before the second judge who considered the issue of personal jurisdiction was not materially different with regard to that issue than the record before the first judge who considered it. In the instant case, the amended complaint set forth new and different averments than the original complaint. Thus Reifinger is inapposite.