Pennsylvania National Bank & Trust Co. v. American Home Assurance Co.

87 F.R.D. 152, 1980 U.S. Dist. LEXIS 12584
CourtDistrict Court, E.D. Pennsylvania
DecidedJuly 25, 1980
DocketCiv. A. No. 79-4188
StatusPublished
Cited by19 cases

This text of 87 F.R.D. 152 (Pennsylvania National Bank & Trust Co. v. American Home Assurance Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania National Bank & Trust Co. v. American Home Assurance Co., 87 F.R.D. 152, 1980 U.S. Dist. LEXIS 12584 (E.D. Pa. 1980).

Opinion

MEMORANDUM AND ORDER

TROUTMAN, District Judge.

Sugar Dust, a standardbred racehorse on which plaintiff’s decedent purchased a one-year mortality insurance policy from defendant, became ill several months later. When Sugar Dust failed to respond to fluid and electrolyte therapy plaintiff contacted a veterinary surgeon who performed exploratory surgery and found a perforated colon and fecal peritonitis throughout the abdominal cavity. With plaintiff’s permission she “humanely destroyed” the animal. Defendant denied plaintiff’s $130,000 claim under the insurance policy contending that the horse died from a ruptured colon, a contingency not included in the “limited perils” provisions of the policy which plaintiff had purchased.

[154]*154Two months later defendant instituted suit in New York to reform the insurance contract. Asserting generally that the policy issued to plaintiff did not conform to the policy of insurance which had been agreed upon by the parties, defendant alleged specifically that the coverage was limited to death caused by fire, lightning and transportation and that through oversight or error defendant had mistakenly issued plaintiff the wrong contract. Plaintiff filed a motion to dismiss the New York action shortly before instituting the present suit for breach of contract in the Court of Common Pleas of Schuylkill County, Pennsylvania, in October 1979. In mid-November, twenty-seven days after service of the complaint, plaintiff took a default judgment after defendant failed to plead within the required twenty days. See Pa.R.Civ.P. 1026. Four days later defendant removed the Pennsylvania action to this Court. Defendant now moves to open and/or strike the default judgment.

Claiming that courts generally disfavor default judgments, particularly “snap” judgments, defendant asserts that the judgment should be set aside for three reasons: Defendant has a valid and meritorious defense; plaintiff’s counsel exhibited bad faith in taking the default without notice; and a related action pending in New York informally stayed the Pennsylvania proceeding. Plaintiff counters that Pa.R. Civ.P. 237.1, which requires ten days’ notice prior to taking a default, was not in effect at the time the default was entered. Plaintiff further argues that defendant instituted suit in New York contrary to the understanding between the parties and that the New York action had no effect on the Pennsylvania state action. Finally, plaintiff emphasizes that defendant has failed to offer a valid excuse for failing to file a timely response to the complaint, that defendant never requested an extension of time within which to respond and that defendant’s unexplained six-month delay between entry of the default and the petition to open was “undue”. Therefore, plaintiff contends, the default judgment should not be disturbed.

Preliminary, a question arises concerning the appropriate method by which to attack a default judgment removed from state to federal court. Notwithstanding the fact that defendant had already removed this case to federal court, defendant filed in state court a petition to open and strike the default judgment on December 31, 1979, six weeks after entry of the default. That motion is not currently before the Court. Once removal has been accomplished a state court may not proceed “unless and until the case is remanded”. 28 U.S.C. § 1446(e). Cf. Georgia v. Rachel, 384 U.S. 780, 799 n. 27, 86 S.Ct. 1783, 1793 n. 27, 16 L.Ed.2d 925 (1966) (“state court proceedings cease unless the case is remanded”). Accordingly, a motion to set aside a default judgment filed in state court after successful removal of the case is not a part of this record and hence not properly before the Court. The proper procedure respecting the opening vel non of a removed default judgment is to file a motion to set aside or open the default judgment in federal court, Fed.R.Civ.P. 60(b),1 which treats the default judgment removed from state court “as though it had been validly rendered in the federal proceeding”. Butner v. Neustadter, 324 F.2d 783, 786 (9th Cir. 1963). Accord, Campbell v. Meadow Gold Products Co., 52 F.R.D. 165, 168 (E.D.Pa.1971). The federal court tests the removed default judgment by the same legal standard used for ones entered in the federal forum. Butner v. Neustadter, 324 F.2d at 786.

To open a default judgment, the federal court must find that defendant has a meritorious defense, that the default results from excusable neglect on defendant’s part and that opening the default will not unfairly prejudice plaintiff. Medunic v. Lederer, 533 F.2d 891, 893 (3d Cir. 1976). The decision requires exercise of the court’s [155]*155sound discretion, Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951), tempered by the requirement that doubts be resolved in favor of removing defaults. Medunic v. Lederer, 533 F.2d at 894. See generally General Tire & Rubber Co. v. Olympic Gardens, Inc., 85 F.R.D. 66 (E.D. Pa.1979). To convince the court that defendant has a valid defense, it must produce credible factual allegations rather than a perfunctory statement that a meritorious defense exists. Consolidated Rail Corp. v. Equator Electric Co., No. 79-3596 (E.D.Pa. May 22, 1980), Residential Reroofing Union Local 30-B v. Mezicco, 55 F.R.D. 516, 518 (E.D.Pa.1972), Wagg v. Hall, 42 F.R.D. 589, 591 (E.D.Pa.1967). True, the law disfavors default judgments, but this policy does not vitiate the requirement of a meritorious defense which burden rests upon the moving party. Wokan v. Alladin International, Inc., 485 F.2d 1232, 1234 (3d Cir. 1973). Where that burden cannot be met, defendant’s motion to open the default judgment must be denied. Design & Development, Inc. v. Vibromatic Manufacturing, Inc., 58 F.R.D. 71, 73 (E.D.Pa.1973).

In the case at bar defendant proposes as meritorious the defense that the

policy of insurance issued by the defendant to [plaintiff] did not conform to that policy of insurance agreed to by and between defendant and [plaintiff] in that a policy of insurance did not have attached thereto [language] endorsing and/or limiting the coverage to those perils agreed to.

Defendant’s Proposed Answer, ¶ 29. In other words, defendant wants the Court to “reform” the insurance policy “so as to limit [its] coverage ... to reflect the agreement of the parties”. Defendant’s Proposed Answer, ¶ 35B. To-support this assertion, defendant must necessarily produce credible evidence regarding both the insurance policy upon which the parties “actually” agreed and the alleged variance therefrom. Importantly, state, not federal, law controls the admissibility of this type of parol evidence. Fed.R.Evid. 601 provides in pertinent part that

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Bluebook (online)
87 F.R.D. 152, 1980 U.S. Dist. LEXIS 12584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-national-bank-trust-co-v-american-home-assurance-co-paed-1980.