By Kevin L. Connors, Esquire
In Stabley v. Great Atlantic & Pacific Tea Co., Great Atlantic being the parent company for Pathmark, the Superior Court issued a Decision, dated April 10, 2014, which reads like a “what not to do” when seeking to Open a Default Judgment that has been entered for the failure to file a responsive pleading to a personal injury Complaint.
The Plaintiff, Bertha Stabley, alleged that she had been injured when knocked down by a column of shopping carts in a Pathmark parking lot. The carts were being pushed by a Pathmark Employee.
The Plaintiff claimed that she sustained several injuries, to include a sacral fracture, and lacerations on her left arm and contusions on her right arm.
The Plaintiff filed suit in the Delaware County Court of Common Pleas, docketing her Complaint within the two year statute of limitations.
Plaintiff’s counsel then served the Complaint on the Pathmark store in Boothwyn, Pennsylvania, being the store location where the Plaintiff had allegedly been injured.
Pathmark was also served at a Corporate Office in Harrisburg, Pennsylvania.
The local store was served on September 25, 2012, and the Corporate Office was served on September 26, 2012.
Under the Pennsylvania Rules of Civil Procedure, Pathmark would have had twenty (20) days after service was perfected, to file a responsive pleading, in the absence of an extension being granted by the Plaintiff.
Twenty days came and passed, with no apparent action being taken by Pathmark.
Thirty (30) days after service had been perfected on Pathmark, Plaintiff’s counsel was contacted by a Pathmark representative, presumed to be Pathmark’s counsel, with Plaintiff’s counsel agreeing to grant Pathmark a thirty (30) day extension to Answer Plaintiff’s Complaint.
That contact was followed by an Entry of Appearance being filed with the Court by Pathmark’s counsel.
No Answer was filed by Pathmark on November 26, 2012, with Plaintiff’s counsel notifying Pathmark’s counsel by a letter dated December 6, 2012, that it was now 51 days past the date for Pathmark to file its Answer, and that counsel would agree to an additional extension, until December 10, 2012, for a response to be filed.
Counsel’s letter indicated “it is not my desire to take a Default Judgment in this matter; however, unless I receive a response by Monday, December 10, 2012, I will be forced to file the appropriate Praecipe with the Court.”
Shockingly, no action whatsoever was taken by Pathmark’s counsel, and no responsive pleading was filed with the Court on December 10, 2012.
In consideration of the approaching Holidays, Plaintiff’s counsel waited until January 3, 2013, to file and serve a Notice of Intention to Take Default Judgment, with Plaintiff’s counsel advising Pathmark’s counsel that if a responsive pleading was not filed within ten (10) days of the Notice being issued, that a Default would be filed with the Court.
Apparently, Pathmark’s counsel received Plaintiff’s counsel’s January 3, 2013 letter on January 7, 2013.
January 3, 2013 came and went without an Answer being filed on behalf of Pathmark.
On January 18, 2013, Plaintiff’s counsel filed a Praecipe to Enter Default Judgment against Pathmark, with the Judgment being recorded on the Delaware County Dockets.
Eleven (11) days later, on January 29, 2013, Pathmark, through counsel, filed a Petition to Open Default Judgment, in support of which it was claimed that the Petition was being filed one (1) day after counsel received Notification of the filing of the Default Judgment.
Although a proposed Answer with New Matter to Plaintiff’s Complaint was attached as an Exhibit to Pathmark’s Petition to Open Default, that Answer was never filed of record with the Court.
Pathmark’s Petition was then calendared for a hearing before the Trial Court, with Pathmark’s counsel, in breathless, muted, detail, explaining:
“[T]he way our dynamic [works] is that Pathmark sends the complaint up to our main office in New York and that it gets spenced [sic] out to us. Being that I was new at the firm at the time I wasn’t personally allowed to answer. We have a managing partner in our New York City office who’s licensed to practice down here as well. Unfortunately, his secretary[,] who is no longer with us, it’s not the first calendar issue she missed, she missed it. We did move as promptly as possible. [Stabley’s counsel] wants to talk about the mail. He’s not sure why we got it. I served these papers with him, you know, promptly, yet he – his opposition was not submitted to the Court timely either. He said that he did not receive them. I mailed them the day that they were filed when I ran here to the courthouse to file them, but we have been here to appear. We have all the medical records for his client that he had previously sent to us and we’re looking to move forward in this matter. Quite frankly I understand the age of his client, but I’m not sure whether the age will come into [the] determination and we do have a meritorious defense. On our own initial investigations into this is that his client was walking in the rain with her head down with an umbrella in front of her and she walked right in the path in front of a person that was pushing the carts. He has 12 carts. He couldn’t stop in time.”
Bizarrely, the Trial Court Judge questioned why Pathmark had yet to file an Answer to the Complaint, further instructing counsel to file an Answer within ten (10) days of the hearing.
Even more bizarrely, an Answer was then never filed.
The Trial Court denied Pathmark’s Petition to Open, and Pathmark filed a timely Notice of Appeal on the 30th day from issuance of the Trial Court’s Order denying the Petition to Open.
Before the Superior Court, Pathmark argued that the Trial Court had abused its discretion in denying Pathmark’s Petition to Open, where Pathmark claimed that it had offered a reasonable explanation for the delay in answering the Complaint, and where it claimed to have set forth meritorious defenses in the proposed Answer that it intended to file, but never did so, in response to the allegations in Plaintiff’s Complaint.
As is well-established, a Petition to Open a Default in Pennsylvania requires that three elements be established:
1. The Petition to Open or Strike must be promptly filed;
2. The Default must be subject to a reasonable explanation or excuse; and,
3. There must be a meritorious defense to the underlying claim.
It is also well-established that a Trial Court’s refusal to Open a Default Judgment cannot be reversed on Appeal, unless the Trial Court abused its discretion in refusing to open the Default; and, an abuse of discretion is characterized as being more than a mere error in judgment, as it must involve the Trial Court either overriding or misapplying the controlling law, or where the judgment exercised by the Trial Court is manifestly unreasonable, or results in undue prejudice.
Applying the three-prong test to Pathmark’s Appeal of the Trial Court’s refusal to open the Default against Pathmark, the Superior Court held that Pathmark had satisfied the first and third prongs of the three-prong test, but the Superior Court was unable to accept Pathmark’s explanation for the delay in responding to the multiple extensions granted by Plaintiff’s counsel, with the explanation offered by Pathmark’s counsel essentially being an administrative and clerical calendaring error by a no longer-employed Clerk, although the record at the Trial Court level clearly evidenced that Pathmark’s counsel had filed an Entry of Appearance within thirty (30) days of Pathmark being served, explanations that the Superior Court found to be “weak at best”, with the Superior Court finding that there were actually four (4) separate times that Pathmark’s counsel failed to take action, in the course of repeatedly being notified by Plaintiff’s counsel that action was, in fact, required, in avoidance of a Default being entered.
In what can only be interpreted as a megaphone call for a “clean-up in aisle #”, the Superior Court held that Pathmark’s inaction was tolled by:
• Initially failing to file a timely response to the Complaint;
• Then failing to file a response within the thirty (30) day extension granted by Plaintiff’s counsel in response to Pathmark’s specific request;
• Then failing to do anything when Plaintiff’s counsel did not initially move for a Default after the thirty (30) day extension to Answer had expired; and,
• Finally, then not taking immediate action when Plaintiff’s counsel filed and served the Notice of Intent to Enter Default.
In short, the Superior Court held that the Default entered was by invitation by Pathmark’s counsel, and, as such, the Superior Court declined to open the Trial Court’s Entry of a Default Judgment against Pathmark, affirming what certainly will never be overturned by the Pennsylvania Supreme Court.
Practically Speaking
Yes, stuff happens!
And, yes, there are sleepless nights worrying about filing dates, over statute of limitations, case management deadlines, and, yes, almost no one has total recall of every significant date or calendaring event, although the technology available to prevent what happened in Stabley has never been more powerful, nor more vocal in reminding us of not only what we need to do, but when we need to do it.
And no, we are not here to lecture that we are better, that we might be beyond perfect, or that we do not, at times, need the kind reminder, from an ever-protective Secretary, Associate, or Outlook calendar, but it is nevertheless hard to imagine how so many months could go by, during the course of which the case was not entirely inactive, that no action was taken, to the ultimate detriment of the client.
There is no question that Defaults are a nasty business, requiring that all hands be on deck.
ConnorsLaw LLP
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With every member of our trial practice group being AV-rated, our partnership with the Pennsylvania Defense Institute and the Counsel on Litigation Management magnifies the lens through which our professional expertise imperiously demands that we remain dynamic and exacting advocates for our clients, the same being businesses, corporations, insurance carriers, seeking our trial and litigation acumen, to navigate the frustrating and liability-intensive minefield pervasive throughout Pennsylvania trial practice and procedure.
Questions concerning tort and/or contract liability that might arise in the context of casualty claims can be directed to Kevin L. Connors at [email protected] (Phone: 610-524-2100 Ext. 112).
