Cross v. 50th Ward Community Ambulance Co.

• Decision Date: 21 July 1987
• Citation: 365 Pa.Super. 74,528 A.2d 1369
• Court: Pennsylvania Superior Court
• Parties: Hopeton CROSS and Jethro Cooke, Appellees, v. 50TH WARD COMMUNITY AMBULANCE COMPANY, Appellant. 02656 Phila. 1986

Page 1369

528 A.2d 1369

365 Pa.Super. 74

Hopeton CROSS and Jethro Cooke, Appellees, v. 50TH WARD COMMUNITY AMBULANCE COMPANY, Appellant.

02656 Phila. 1986

Superior Court of Pennsylvania.

Argued March 11, 1987.

Filed July 21, 1987.

Christopher J. Pakuris, Philadelphia, for appellant.

Edward T. Feierstein, Philadelphia, for appellees.

Before CIRILLO, ^* President Judge, and McEWEN and MONTEMURO, JJ.

MONTEMURO, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying appellant's petition to open a default judgment. ¹ Because appellant's petition is inadequate, we affirm.

This litigation arose out of an accident between an ambulance owned by appellant and a car occupied by appellees. On April 26, 1985, appellees Hopeton Cross and Jethro Cooke filed a complaint alleging that their injuries were caused by the negligence of the driver of the ambulance owned by appellant 50th Ward Community Ambulance Company. The record indicates that on May 7, 1985, service was made at appellant's headquarters to Charles Motley, Field Director. On June 17, 1985, appellees sent to appellant a notice of intent to take a default judgment. On June 28, 1985, a default judgment was entered against appellant on the issue of liability only. Notice of judgment was sent to appellant pursuant to Pa.R.C.P. 236. Appellant claims that it did not receive the notice of intent to take a default judgment until August 6, 1985. On May 30, 1986, nine and a half months after receiving notice of the default judgment, appellant filed a petition to open or strike the default judgment. ² Appellees answered. On July 15, 1986, the court of common pleas reviewed the petition, the answer and the parties' memoranda of law and denied appellant's petition on the ground that it was not filed promptly.

This appeal raises two issues: (1) was the record ripe for judicial action when the court denied the petition, despite neither party having taken any action pursuant to Pa.R.C.P. 209; and (2) did the court abuse its discretion when it denied appellant's petition? ³ We find that the record was ripe for adjudication and that the court did not abuse its discretion.

In the first issue presented by this case, appellant contends that we should remand this action to the court of common pleas because it acted prematurely when it denied the petition. Appellant claims that there were disputed issues of fact raised by the petition and answer, and that no depositions had been taken pursuant to Pa.R.C.P. 209. ⁴ Appellant further asserts, quite correctly that appellees did not take a rule as of course on appellant to show cause why appellant should not either take depositions or order the cause for argument. Appellant argues that this inaction by both parties should have prevented the court from taking any action on the petition and answer. We reject appellant's argument.

We first note that:

A petition to open a default judgment is an appeal to the court's equitable powers. The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law. In determining whether a judgment by default should be opened, the court acts as a court of conscience. 'In order to open a default judgment, the Petition to Open must be: (1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense.' Keystone Boiler Works, Inc. v. Combustion & Energy Corp., 294 Pa.Super. 145, 148, 439 A.2d 792, 794 (1982). "All three criteria must be met, and the three requirements must 'coalesce'." Id.

Ridgid Fire Sprinkler Service v. Chaiken, 333 Pa.Super. 213, 217, 482 A.2d 249, 251 (1984) (citations omitted) (emphasis added). The general rule that the court must find all elements of the three-part test before it can exercise its discretion to open a default judgment has been reiterated and applied by the Pennsylvania courts in many recent cases. See, e.g., Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984); Estate of Levy by Levy v. CNA Insurance Co., 338 Pa.Super. 191, 487 A.2d 919 (1985); Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984); Ridgid Fire Sprinkler Service, Inc. v. Chaiken, supra, and Vision Service Plan of Pennsylvania v. Pennsylvania AFSCME Health and Welfare Fund, 331 Pa.Super. 217, 480 A.2d 322 (1984). In denying petitions to open default judgments courts have found routinely that a petitioner's failure to meet any "prong" of the three-part test is fatal to obtaining the relief sought. Generally, courts will not examine the facts alleged to sustain the other two prongs because failure to offer sufficient facts under one prong defeats the petition. See, e.g., Schultz, supra; Vision Service Plan, supra. ⁵

Appellant's petition avers no facts with regard to its failure to answer the complaint in a timely fashion (the "reasonable excuse" prong). Rule 209 procedure is appropriate only where factual issues engendered by a petition and answer are "ripe for resolution," see Shainline v. Alberti Builders, 266 Pa.Super. 129, 136, 403 A.2d 577, 580 (1979). ⁶ Because appellant has failed to allege any facts with respect to one prong of the three-part test, we find a remand to be both unwarranted and unnecessary.

To explain its delay in answering appellees' complaint, appellant states only that "[i]t is denied that service was properly made upon the answering defendant." ⁷ Appellant offers no facts to support this allegation. The allegation is a conclusion of law ⁸ and as such does not give rise to a disputed issue of fact that requires resolution under Rule 209.

Moreover, even if we were to assume that appellant's allegation was not a conclusion of law, it is questionable whether appellant's averment concerning its "reasonable excuse" for failing to answer the complaint is material. The "fact" that service was "improper" does not by itself state a reasonable excuse. Improper service can occur where there is merely a technical defect in service, but that fact alone would not excuse appellant from answering the complaint. Appellant could have had actual notice of the litigation where some "nonfatal" defect in service existed. If that were the case, appellant would have no excuse for failing to respond to the complaint. ⁹ See, e.g., Miller v. Carr, 221 Pa.Super. 306, 292 A.2d 423 (1972) (where no substantial rights of appellant were in jeopardy and appellant had received actual notice of litigation, the trial court could properly disregard procedural defects in service of process); First National Bank & Trust Co. v. Anderson, 7 Pa.D & C3d 627 (Somerset County 1977) (defective service sustained where defendant received process in time to defend and was not prejudiced thereby); Bruning v. Maizite, 2 Pa.D & C3d 632 (Northampton County 1977) (technical defects in service were overlooked where the defendant unquestionably had personal notice of the litigation). See also Pa.R.C.P. 126 ("[t]he rules shall be liberally construed").

Further weakening appellant's petition is the averment concerning the "promptness" prong, which although factual and not a conclusion of law, did not create a factual dispute with regard to a material issue. Therefore the "promptness issue" does not require Rule 209 resolution. See Triffin v. Thomas, 316 Pa.Super. 273, 275, 462 A.2d 1346, 1347 (1983) (petitioner must support material allegations with evidence). In order to satisfy the "promptness" prong of the three-part test, petitioner must show that he or she has exercised "due diligence under the circumstances in the filing of the petition," Penn Clair Construction Co. v. Eden Roc County Club, 294 Pa.Super. 377, 380, 440 A.2d 514, 516 (1981). Appellant alleges that its counsel "has discussed the possibility of resolving this matter with plaintiff's counsel, but his progress appears to have been stalled, the present motion as [is?] being filed." Petition p 6. Appellees admitted that "in recent weeks" there had been some settlement discussion but denied "that such recent settlement discussion in any way hindered or misled [appellant] to not file a petition to open judgment on or about the time that judgment was entered." Answer p 6. Therefore, a factual dispute existed, but it is unlikely that it was material. In other words, a resolution of the factual "dispute" concerning promptness would not have changed the court's decision to deny the petition.

Negotiating for a voluntary opening of judgment has been accepted as an excuse for not immediately filing a petition to open upon notice of judgment. See, e.g., Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982) (because defendant was negotiating to open judgments, its filing of two petitions three months after notice of default judgments was considered prompt). However, before finding an allegation adequate to explain a delay in filing a petition to open, courts have generally required that the petitioner allege not only that there were ongoing negotiations, but also that plaintiff or its counsel "had engaged in conduct designed to confuse [petitioner-defendant] or lull her into a false sense of security." Ridgid Fire Sprinkler Service v. Chaiken, supra, 333 Pa.Super. at 219, 482 A.2d at 253 (three-month delay in filing petition). Accord Kabanow v. Kabanow, 239 Pa.Super. 23, 27, 361 A.2d 721, 723 (1976) (six-month delay); Hersch v. Clapper, 232 Pa.Super. 550, 553, 335 A.2d 738, 741 (1975) (three and a half-month delay). Appellant has failed to allege any such misleading conduct by appellees. Even accepting the petition's averments as true, it is questionable whether appellant has shown "due diligence under the circumstances in the filing of the petition," Penn Clair Construction Co., supra, 294 Pa.Super. at 380, 440 A.2d at 516. A nine-month period between...