Nunez, S. v. KLS Enterprises

• Court: Superior Court of Pennsylvania
• Decided: February 9, 2021
• Docket: 3542 EDA 2019
• Status: Unpublished

Opinion

J-A23001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUOMARA NUNEZ : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KLS ENTERPRISES T/A AND D/B/A : MCDONALDS RESTURANT AND : MCDONALDS STORE #8261 : No. 3542 EDA 2019 : Appellant :

Appeal from the Order Entered November 20, 2019, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): No. 190700954.

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBUARY 9, 2021

KLS Enterprises t/a and d/b/a McDonald’s Restaurant and McDonald’s

Store #8261 appeals from the order denying the petition to open default

judgment entered against it in this personal injury case. Upon review, we

affirm.

The procedural history and relevant facts of this case are as follows.

KLS is a Pennsylvania corporation. It owns and operates several McDonald’s

restaurants in the Philadelphia area.

On July 9, 2019, Suomara Nunez filed a complaint against KLS claiming

that she was injured while working at KLS’ Torresdale Avenue McDonald’s

restaurant. Nunez served the complaint upon KLS on July 17, 2019, by ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-A23001-20

handing it to: 1) Tashiana Damey, the shift manager at KLS’ Ogontz Avenue

McDonald’s; and 2) Arrona Jones, the department manager at KLS’ Torresdale

McDonald’s. KLS’ human resources director, DaShaun Youngblood first

learned of Nunez’ complaint on July 23, 2019, when she was given a copy of

it at their weekly leadership meeting. That same day, Youngblood sent the

complaint to KLS’ general liability carrier (Zurich Insurance Co.) and its

worker’s compensation carrier (Guard Insurance Co.), via email, and reported

Nunez’ lawsuit to them. Thereafter, KLS did not file a response to the

complaint.

On August 7, 2019, Nunez served KLS with a ten (10) day notice of

intent to take a default judgment by mailing a copy to the Ogontz and

Torresdale restaurants’ addresses. Still, KLS did not respond to the complaint.

On August 22, 2019, Nunez praeciped for entry of default judgment,

which was entered the same day. Notice was sent to KLS at both the Ogontz

and Torresdale addresses. After learning of the default judgment, KLS

retained counsel and filed a petition to open the default judgment on October

4, 2019.

At the hearing on KLS’s petition, Youngblood testified that once she

learned of Nunez’ complaint, she sent it to both KLS’ worker’s compensation

and general liability insurance carriers. Having done so, KLS relied on its

carriers to handle the matter. Youngblood further testified that she did not

receive either the notice of intent to take a default judgment or the default

judgment. Instead, according to Youngblood, she learned about the default

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judgment from McDonald’s corporate on September 20, 2019, via an email.

Nonetheless, the trial court denied KLS’ petition to open the judgment.

KLS filed this timely appeal. On appeal, KLS raises the following single

issue:

I. Whether the [t]rial [c]ourt abused its discretion in denying KLS’ petition to open default judgment where the three factors necessary to open a default judgment . . . were present .

See KLS’ Brief at 4.

Generally, a default judgment may be opened when the moving party

establishes three requirements: (1) a prompt filing of a petition to open the

default judgment; (2) a meritorious defense; and (3) a reasonable excuse or

explanation for its failure to file a responsive pleading. Dumoff v. Spencer,

754 A.2d 1280, 1282 (Pa. Super. 2000). Our standard of review for a

challenge to a decision concerning the opening of a default judgment is well

settled.

A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision absent a manifest abuse of discretion or error of law.

However, we will not hesitate to find an abuse of discretion if, after our [] review of the case, we find that the equities clearly favored opening the judgment.

An abuse of discretion is not a mere error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.

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Id. (citations omitted).

In its appeal, KLS claims that the trial court abused its discretion in

denying KLS’ petition to open the default judgment entered against it because

KLS argues that it satisfied the three requirements to open a default

judgment. In particular, KLS offered a reasonable explanation for its failure

to respond to the complaint. Upon receipt of the complaint, KLS sent it to its

insurance carriers and relied on them to handle the matter; KLS itself did not

have expertise to respond to the complaint. However, neither of KLS’

insurance carriers responded to the complaint. Furthermore, KLS did not

receive notice of Nunez’ intent to take a default judgment or entry of the

actual judgment. KLS Brief at 19-21.

KLS also argues that the trial court failed to consider the equities and

prejudices in this case. Consequently, according to KLS, this Court should

reverse the trial court’s order, and allow this case to proceed on its merits.

KLS’ Brief at 34-35.

In this case, the focus was on the third requirement needed to open a

default judgment. KLS argued that it had a reasonable excuse or explanation

for not responding to Nunez’ complaint. Specifically, KLS, unsophisticated in

legal matters, justifiably believed that its insurance carriers were protecting

its legal interests, but failed to timely respond on behalf of KLS. Trial Court

Opinion, 3/16/20, 3-4.

Generally, courts have found that an insured’s belief that its legal

interests were being protected by its insurance carrier constitutes a

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reasonable excuse or explanation for the insured’s failure to file a timely

responsive pleading. Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099,

1102-03 (Pa. Super. 1996); Autologic Inc. v. Cristinzio Movers, 481 A.2d

1362 (Pa. Super. 1984). However, “if the insured failed to inquire of the

insurer as to the status of the case after events have occurred which should

have reasonably alerted the insured to a possible problem, [particularly notice

of the other party’s intent to take a default judgment], the insured is precluded

from asserting a justifiable belief that its interests were being protected.”

Autologic, at 1363; Flynn, at 1103. Additionally, where the insured is not a

layperson, but a sophisticated insured such as corporate defendant with the

means to monitor legal claims, the courts have found that such belief was not

justifiable. Flynn, at 1102-1103.

Here, the court rejected KLS’ claims, and found that, under the

circumstances of this case, KLS was not justified in believing that its insurance

carriers were handling the matter. Therefore, KLS failed to prove that it had

a reasonable excuse for not responding. Trial Court Opinion, 3 at 4.

First, the trial court found that KLS was not a layperson, but rather a

sophisticated insured and corporate defendant with the means to monitor legal

claims. Trial Court Opinion, 3/16/20, at 3. The court explained:

[KLS] has been in business for several years as a corporate franchisee of the McDonald’s Corporation. As a franchisee, [KLS] receives support and assistance from McDonald’s Corporation including information regarding lawsuits and insurance.

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Id., 3/16/20, at 3-4. We observe that the evidence further showed that KLS

was involved in multiple lawsuits before Nunez initiated hers.

Additionally, the trial court found that KLS received notice of Nunez’

intent to take a default judgment evidenced by the certificate of service

showing that Nunez sent it to KLS at both its Ogontz and Torresdale

restaurants. It was KLS’ process that such mail was to be given to Youngblood

at KLS’ weekly leadership meetings. Although Youngblood testified that she

never received Nunez’ notice of intent to take a default judgment, given this

evidence, the trial court did not find her testimony credible, which we cannot

disturb. The court explained that this notice “should have alerted [KLS] to the

possibility that [its] insurance carriers were either (1) not going to defend it

against the claim, or (2) were delinquent in their duties.” Trial Court Opinion,

3/16/20, at 4. Instead, KLS merely sent a copy of Nunez’ complaint to its

insurance carriers, and made no inquiries thereafter as to the status of this

claim.

The trial court further explained that, unlike the case of Reid v.

Boohar, 856 A.2d 156 (Pa. Super. 2004), where this Court found that the

insured had a reasonable excuse, KLS did not allege that its insurance carriers

were unresponsive, made a mistake or oversight in their operation or lost their

claim files. Id. at 4 fn. 2. In fact, KLS offered no explanation for the insurance

carriers’ lack of response until after entry of the default when they both denied

coverage.

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The instant case is similar to Bethlehem Apparatus Co., Inc. v. H.N.

Crowder, Jr., Co., 364 A.2d 358 (Pa. Super. 1976),

instructive. In Bethlehem, an insured received service of a complaint

naming it as a defendant in a breach of contract action. The insured alerted

his insurance carrier of the receipt of the complaint, explained the

circumstances, and asserted his belief that the matter was covered by his

liability insurance. Id. at 360. The insured received no response from the

carrier, and took no action to defend against the action until it learned of the

entry of a default judgment. Id. at 359-60. The insured

in Bethlehem offered no explanation or information regarding why the

insurance carrier failed to mount a defense on its behalf. Accordingly, this

Court concluded that “the record clearly shows that the [insured] has not

acted in a manner that would have enabled it to rely justifiably upon legal

representation by the insurance carrier.” Id. Similarly, KLS was not justified

in relying on its insurance carriers when they failed to inquire as to the status

of the claim or confirm that KLS’ carriers were taking steps to handle the

matter.

KLS further argues that the trial court erred in denying KLS’ request to

open the default judgment because it failed to consider the equities in this

case.

When considering whether to open a default judgment, courts must

“determine whether there are equitable considerations which require that a

defendant, against whom a default judgment has been entered, receives an

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opportunity to have the case decided on the merits.” Duckson v. Wee

Wheelers, 620 A.2d 1206, 1208 (Pa. Super. 1993). However, the

court “cannot open a default judgment based on the ‘equities’ of the case

when the defendant has failed to establish all three of the required

criteria.” Myers v. Wells Fargo, 986 A.2d 171, 176 (Pa. Super. 2009)

(citations omitted).

Here, the court found that KLS did not satisfy the reasonable explanation

for not timely responding to the complaint prong. Therefore, the trial court

properly did not consider further the equities of the case. KLS is entitled to

no relief.

Based upon the foregoing, we conclude that the trial court did not abuse

its discretion in denying KLS’ petition to open the default judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/09/2021

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