Township of Chester v. Stapleton

456 A.2d 673, 72 Pa. Commw. 141, 1983 Pa. Commw. LEXIS 1345
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 17, 1983
DocketAppeal, No. 548 C.D. 1982
StatusPublished
Cited by8 cases

This text of 456 A.2d 673 (Township of Chester v. Stapleton) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Township of Chester v. Stapleton, 456 A.2d 673, 72 Pa. Commw. 141, 1983 Pa. Commw. LEXIS 1345 (Pa. Ct. App. 1983).

Opinion

Opinion by

Judge Doyle,

This is an appeal from an order of the Court of Common Pleas of Delaware County denying the Petition of the Township of Chester to open and/or strike a default judgment entered on November 17, 1981. We affirm.

On May 8, 1981, Thomas J. Stapleton, Jr., Richard L. Colden, Jr., and the firm of Stapleton, Colden & Cullen (Plaintiffs) instituted an action in assumpsit against the Township of Chester (Defendant) to recover fees due for legal services rendered on behalf' of township officials during 1979 and 1980. Effective service of the complaint was made on July 1, 1981. Defendant filed no answer and on July 23, 1981, plaintiffs sent a ten-day notice of default letter pursuant to Pa. R.C.P. No. 237.1. Defendant then filed, on July 28, 1981, preliminary objections to the complaint. Plaintiffs filed a memorandum in opposition to the preliminary objections on August 28, 1981 and on September 17, 1981, the court of common pleas entered an order partially sustaining the objections and allowing Plaintiffs twenty days to amend the complaint by incorporating an exhibit from their memorandum which itemized the legal services rendered and fees due. The exhibit was filed on September 18, 1981 as an amendment to the original complaint, and was served on Defendant the same day.

On October 14, 1981, Defendant, through its solicitor, requested a thirty day extension of time in [144]*144which to file an answer. By letter of October 20, 1981, Plaintiffs granted an extension until November 13, 1981, thirty days from the date of Defendant’s letter of request. On November 17, 1981, when no answer was yet filed, Plaintiffs filed a praecipe for judgment in default for failure to file an answer. An order was entered the same day in the amount of $20,134.04.

Defendant filed an answer to Plaintiffs’ amended complaint on November 23, 1981 and simultaneously petitioned the court to open judgment. A hearing was held on January 26, 1982 and on March 4, 1982 the court of common pleas entered an order denying the petition to open judgment. This appeal followed.

Denial of a petition to open judgment is a matter of judicial discretion and will not be reversed unless there has been an error of law or a manifest abuse of discretion. Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970). Defendant alleges error of law in the court’s interpretation and application of the Pennsylvania Rules of Civil Procedure and charges abuse of discretion in the court’s analysis of the equities in the case.

Error of Law

Defendant first argues that the default judgment was improperly entered under Pa. R.C.P. No. 1037(b). Rule 1037(b) provides, in pertinent part:

The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time an answer to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant’s pleadings.

The Defendant urges that the procedure under Section (b) of the Rule is available only for failure to timely file an answer to the original complaint and not for failure to timely file an answer to an amended complaint. We disagree. The Rule itself does not [145]*145distinguish between the original and amended complaints and failure to timely file an answer to an amended complaint has been treated within the ambit of 1037(b). See Franklin Interiors, Inc. v. Browns Lane, Inc., 227 Pa. Superior Ct. 252, 319 A.2d 682 (1974).

Defendant next argues that the default judgment cannot stand because the amendment to the complaint filed did not contain a notice to defend, required by 1037(b) and Pa. R.C.P. No. 1018.1. Plaintiffs counter that the original complaint was properly endorsed with a notice to defend and as the amendment filed did not supercede any portion of that complaint, but only added to it, the notice to defend on the original carries over. We agree. Where, as here, the Plaintiff files a properly endorsed complaint, then files an amendment which does not supplant but rather supplements the original complaint, the amendment merges with the original and does not require an additional notice to defend under Pa. R.C.P. No. 1018.1.1 In such cases, [146]*146the amendment must, of course, be properly endorsed with a notice to plead, in order to demand a responsive pleading under Pa. R.C.P. No. 1026. Plaintiffs’ amendment was endorsed with a notice to plead, but Defendant argues that the failure of counsel for Plaintiffs to sign the notice to plead is a fatal defect. We disagree. While it is the better practice for counsel to sign the notice to plead, error in the failure to do so is de minimus, and is not fatal to the default judgment. Malakoff v. Zambar, Inc., 446 Pa. 503, 288 A.2d 819 (1972).

Defendant finally argues that Plaintiffs failed to give ten days prior notice of their intention to enter a default judgment as required by Pa. R.C.P. No. 237.1(a). This argument clearly fails. Rule 237.1(a) expressly provides: “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.” Here, Defendant requested and received written extension until November 13, 1981 of the time in which to answer Plaintiffs’ amended complaint. No other notice was required under the Rule.

The court of common pleas did not err in its interpretation and application of the Pennsylvania Rules of Civil Procedure.

Abuse of Discretion

The Defendant also argues that the court of common pleas abused its discretion in refusing to open the default judgment. The criteria for grant of a petition to open a default judgment are well established:

[A] court should not exercise its discretion to grant a petition unless the petitioner meets three requirements:
“(1) the petition to open has been promptly filed;
[147]*147(2) a legitimate explanation exists for the delay that prompted the default judgment; and
(3) a meritorious defense is averred.”

Mahler v. Emrick, Pa. Superior Ct. , , 446 A.2d 321, 322 (1982) (quoting Hatgimisios v. Dave’s N.E. Mint, Inc., 251 Pa. Superior Ct. 275, 276, 380 A.2d 485, 485 (1977)). The court of common pleas noted that Defendant’s petition was promptly filed and offered a meritorious defense to Plaintiffs’ claim. The court found, however, that Defendant had failed to reasonably explain the failure to timely answer Plaintiffs’ amended complaint and therefore declined to open the default judgment.

Defendant advances many excuses for the delay in filing an answer.2 Many of these address the heavy workload of the Defendant’s solicitor and his duties with regard to the other complex litigation in which the Defendant is involved.

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Cite This Page — Counsel Stack

Bluebook (online)
456 A.2d 673, 72 Pa. Commw. 141, 1983 Pa. Commw. LEXIS 1345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/township-of-chester-v-stapleton-pacommwct-1983.