Comyn v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 01 July 1991
• Docket Number: No. 2012,2012
• Citation: 594 A.2d 857,141 Pa.Cmwlth. 53
• Parties: Frances COMYN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and City of Philadelphia. Appeal of CITY OF PHILADELPHIA, Appellant. C.D. 1989.
• Court: Pennsylvania Commonwealth Court

Page 857

594 A.2d 857

141 Pa.Cmwlth. 53

Frances COMYN v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and City

of Philadelphia.

Appeal of CITY OF PHILADELPHIA, Appellant.

No. 2012 C.D. 1989.

Commonwealth Court of Pennsylvania.

Argued March 5, 1991.

Decided July 1, 1991.

Audrey Greenhall, Philadelphia, for appellant.

John F. Hanahan, Folsom, for appellee.

Before PALLADINO and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.

PALLADINO, Judge.

The City of Philadelphia (City) appeals an order of the Court of Common Pleas of Philadelphia County (trial court) denying the City's petition to open a default judgment taken against the City by Frances Comyn (Appellee). We reverse.

Appellee filed a complaint on November 18, 1988, against the City and Southeastern Pennsylvania Transit Authority (SEPTA), alleging that she was injured when she tripped over debris on steps leading to a SEPTA station. The City failed to answer the complaint, and, upon Appellee's praecipe, a default judgment was entered.

We note at the outset that "[t]he decision whether to open a default judgment is left to the sound discretion of the trial court, and absent an error of law or a clear manifest abuse of discretion, the trial court's decision will not be disturbed on appeal." Southeastern Pennsylvania Transportation Authority v. Ray, 131 Pa.Commonwealth Ct. 179, 181, 569 A.2d 1020, 1021 (1990). Further, it is a well established rule that in order to grant a petition to open a default judgment, the following three criteria must be met: (1) the petition to open must be promptly filed; (2) there must be a reasonable excuse for failure to respond; and (3) a meritorious defense must be shown. Id.

The City argues that the trial court erred in refusing to open the default judgment because the City presented a reasonable excuse for its failure to respond, and because the City has the meritorious defense of governmental immunity. ¹

The reasonable excuse advanced by the City to the trial court for its failure to respond was that the City was never properly served with the complaint. The City presented the deposition testimony of Brenda Benson, Claims Coordinator for the City, who testified that she was the only person in the law department who was authorized to receive service of process, and that she was not served with the complaint. The City also produced deposition testimony of a Deputy Sheriff who stated that he served someone on the 9th floor of City Hall, but could not identify whom or the capacity of the person he had served.

The rule for service of process on a political subdivision is Pa.R.C.P. No. 422(b) (Rule) which reads as follows:

RULE 422. THE COMMONWEALTH AND POLITICAL SUBDIVISIONS

....

(b) Service of original process upon a political subdivision shall be made by handing a copy to

(1) an agent duly authorized by the political subdivision to receive service of process, or

(2) the person in charge at the office of the defendant, or

(3) the mayor, or the president, chairman, secretary or clerk of the tax levying body thereof, and in counties where there is no tax levying body, the chairman or the clerk of the board of county commissioners.

Under subsection (1), the City argues that Brenda Benson, the City's duly authorized agent, was the sole person authorized to accept service of process for the City under the Rule and she was not served. Subsection (2) of the Rule, provides an alternative, service on the person in charge at the office of the defendant.

The City argues that service of the complaint on an unidentified person on the 9th floor of City Hall is not sufficient service for purposes of subsection (2) of the Rule. The Rules of Civil Procedure do not define "person in charge". Furthermore, neither party points to any case in which those terms are defined in the context of service on a political subdivision, and we find none.

However, we do find helpful a ruling in a Superior Court case which addressed criteria for service of process on a corporation or similar entity under Pa.R.C.P. 2180(a)(2) (since rescinded). ² Rule 2180(a)(2) provided for service by handing a copy to:

[A]n agent or person for the time being in charge of, and only at, any office or usual place of business of the corporation or similar entity.... (Emphasis added.)

In Hopkinson v. Hopkinson, 323 Pa.Superior Ct. 404, 470 A.2d 981 (1984) ³, the Superior Court held that a corporation had been properly served when the Sheriff handed process to a receptionist who was named in the return, because the Sheriff's return of service clearly indicated that the individual represented to the Sheriff that she was the person in charge at the time of service.

In the case at bar, a Deputy Sheriff stated in a deposition as follows:

Q. So when you say you took it to the City of Philadelphia, sir, where did you take it?

A. I took it to the address which was on the writ which I believe was 1101 Market, 9th floor.

....

Q. And, sir, did you have occasion, you said you took it to 11th and Market, do you recall what floor you were on?

A. I recall being on the 9th floor because of the address on the writ.

Q. What happened, you got to the 9th floor, sir, what did you do with it at that time?

A. I went to the reception area on the 9th floor. And I gave it what I assumed was a receptionist.

Q. You gave it to a receptionist.

A. I have no recollection at all as to who that was.

....

Q. And again you don't know who you gave that complaint to?

A. I have no recollection at all, other than it was someone in the reception area. I can't recall whether it was a man or a woman.

Deposition, pp. 8, 9, 11 and 12.

Using the holding in Hopkinson as a guide, since the Deputy Sheriff could not state affirmatively that the person to whom he handed the complaint was a receptionist, or the person in charge, service on the City was not accomplished.

Additionally, in Hopkinson the Sheriff's return specified the name of the person he served, whereas in the case at bar, the Deputy Sheriff did not ascertain the name of the person he served nor the official capacity of the person to whom he handed the complaint.

Because we hold that the City was not properly served, we conclude that the City had a reasonable excuse for its delay in responding to the complaint.

We turn next to the third requirement that the City show a meritorious defense. The City argues that governmental immunity under 42 Pa.C.S.A. § 8541 is a meritorious defense to Appellee's claim. We agree, but note that because no answer to the complaint was filed this defense was not raised in the pleadings. The City had an opportunity to raise the defense of governmental immunity when it petitioned to open the default judgment, but again neglected to do so. The City argues on appeal that the defense of governmental immunity cannot be waived. The supreme court so held in In re: Upset Sale of Properties (Skibo), 522 Pa. 230, 232, 560 A.2d 1388 (1989). Therefore, we conclude that the City has also met the requirement that a meritorious defense be shown.

Because all three of the requirements for the opening of a default judgment have been met, the trial court erred by failing to do so.

Accordingly, for the foregoing reasons we reverse the order of the trial court.

ORDER

AND NOW, July 1, 1991, the order of the Court of Common Pleas of Philadelphia County in the above-captioned matter is reversed.

SILVESTRI, Senior Judge, dissenting.

Frances Comyn (Comyn), pursuant to Pa.R.C.P. No. 237.1, entered a default judgment against the City of Philadelphia (City). The City filed a document bearing the title/label "Defendant's Motion To Open Plaintiff's Default Judgment." The trial court denied City's motion and it filed this appeal. The majority reversed the trial court without directions. ¹ I disagree. I would reverse the trial court and strike the judgment; hence this dissent.

On November 18, 1988, Comyn filed a civil action against Southeastern Pennsylvania Transportation Authority (SEPTA) and the City, naming them as co-defendants. Comyn alleges in paragraphs 4 and 5 of her complaint that both SEPTA and the City "maintained, possessed and controlled" the steps to the "Market-Frankford Elevated" at the corner of 8th and Market Streets in the City; that on May 22, 1987 while she was walking to said location "she did trip, stumble and fall to the ground by reason of coming in contact with the said foreign substances and objects and other defective conditions" sustaining injuries to her person (paragraph 8 of Comyn's complaint). ²

The return of service of the civil action against the City by the sheriff, a copy of which was filed in the office of the prothonotary at the captioned docket, is as follows.

Served and made known to City of Phila, Defendant(s) on the 22 day of Nov., 1988, at 3 o'clock P.M., at 1101 Market Street, County of Philadelphia, Commonwealth of Pennsylvania, in the manner described below:

. . . . .

X Agent or person in charge of Defendant's office or usual place of business. ³

Sixty-one (61) days after date of service of the civil action as returned by the sheriff, Comyn sent a letter, dated January 23, 1989, by certified mail to the City law department pursuant to Pa.R.C.P. No. 237.1 advising "that unless you act within ten (10) days from the date of this notice, a judgment may be entered against you without a hearing." ⁴

By letter dated January 27, 1989, four (4) days after the date of Comyn's Rule 237.1 letter, the Chief Deputy City Solicitor responded to Comyn acknowledging receipt of Comyn's January 23, 1989 letter and enclosing a copy of the docket entries, ⁵ stating relative thereto that the docket entries reflect:

[T]hat the City of Philadelphia was joined as an additional defendant by New Matter under 2252(d) on January 20, 1989 by Septa. Therefore, plaintiff is not the proper party to move for default. Secondly, any Notice of Default is premature.

I note that Comyn's letter as well as the City's...