Decandido v. Neverett
| Docket Number | 109 EDA 2023,J-A17039-23 |
| Decision Date | 08 November 2023 |
| Parties | CORRADO DECANDIDO v. DANIEL NEVERETT AND SELECTIVE INSURANCE COMPANYAPPEAL OF: DANIEL NEVERETT |
| Court | Pennsylvania Superior Court |
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered December 6, 2022 In the Court of Common Pleas of Pike County Civil Division at No(s) 2021-00380
Benjamin D. Kohler, Esq.
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J. [*]
Appellant, Daniel Neverett, appeals from the order entered in the Pike County Court of Common Pleas, which denied his petition to open the default judgment entered in favor of Appellee, Corrado DeCandido. We affirm.
The relevant facts and procedural history of this appeal are as follows. On April 14, 2021, Appellee filed a complaint against Appellant. In the complaint, Appellee alleged that he suffered injuries because of a motor vehicle accident caused by Appellant. Appellant accepted service of the complaint on August 11, 2021, but he did not file an answer. On September 1, 2021, Appellee served Appellant with notice of intent to enter a default judgment. Appellee filed a praecipe to enter default judgment on September 14, 2021.
On January 21, 2022, Appellant filed a petition to open the default judgment. In his petition, Appellant noted that Appellee's counsel was actively negotiating a settlement with Appellant's insurance provider between March 2020 and December 2021. Despite these negotiations, Appellant complained that Appellee did not notify Appellant's insurer "that a complaint was filed, or served, or that [Appellee] sought and obtained default judgment." (Petition to Open Default Judgment, filed 1/21/22, at ¶10). Under these circumstances, Appellant concluded that the court should open the default judgment.
On January 25, 2022, the court issued a rule to show cause order directing Appellee to explain why Appellant was not entitled to relief. Appellee filed a response on February 17, 2022. On March 24, 2022, Appellant requested oral argument. The court heard arguments on the matter on December 6, 2022. That same day, the court entered an order and opinion denying Appellant's petition to open the default judgment. Appellant timely filed a notice of appeal on January 5, 2023. On February 1, 2023, Appellant voluntarily filed a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
In his first issue, Appellant submits that he had a reasonable excuse for the delay in filing his petition to open. Specifically, Appellant asserts that he "had a reasonable basis to believe that his insurer, who was on notice of the potential claims against him, was meeting its obligations to defend his interests." (Id. at 19). Appellant complains that "the failure of [Appellee's] counsel to notify the carrier with whom he was engaged in settlement negotiations that [Appellee] commenced a lawsuit against [Appellant] is patently unreasonable." (Id. at 20). Upon receiving notice of the suit, Appellant emphasizes that his insurance company assigned counsel to defend Appellant, who filed the petition to open the default judgment within twenty days. Appellant also asserts that the petition "raised potential defenses to elements of [Appellee's] claims, including by challenging causation," which "amounts to a meritorious defense to a tort claim." (Id. at 28). Appellant concludes that the court erred in denying his petition to open the default judgment, and this Court must grant relief. We disagree.
"A petition to open a default judgment is an appeal to the equitable powers of the court." Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 25 (Pa.Super. 2011) (quoting Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa.Super. 2000)). "The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision absent a manifest abuse of discretion or error of law." Id.
"If the petition is filed within ten days after the entry of a default judgment on the docket, the court shall open the judgment if one or more of the proposed preliminary objections has merit or the proposed answer states a meritorious defense." Pa.R.C.P. 237.3(b)(2). Where a petition to open a default judgment is not filed within ten days after the entry of a default judgment, the movant must "(1) promptly file a petition to open judgment; (2) provide a meritorious defense; and (3) offer a legitimate excuse for the delay in filing a timely answer." Reid v. Boohar, 856 A.2d 156, 160
(Pa.Super. 2004). "[T]he trial court cannot open a default judgment based on the 'equities' of the case when the defendant has failed to establish all three of the required criteria." US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa.Super. 2009).
With respect to the prompt filing of a petition to open, this Court "does not employ a bright line test." Flynn v. America West Airlines, 742 A.2d 695, 698 (Pa.Super. 1999). Courts focus on two factors: "(1) the length of the delay between discovery of the entry of the default judgment and filing the petition to open judgment, and (2) the reason for the delay." Id. One month or less between the entry of the default judgment and the filing of a petition for relief from the judgment typically meets the requirement for a prompt filing. See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa.Super. 2009). See also U.S. Bank N.A., supra at 995 ().
Generally speaking, a default attributable to a defendant's justifiable belief that his legal interests are being protected by his insurance company is excusable. However, if the insured fails to inquire of the insurer as to the status of the case after events have occurred which should have reasonably alerted the insured to a possible problem, the insured is precluded from asserting a justifiable belief that its interests were being protected.
Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1210 (Pa.Super. 1993) (citations omitted) (emphasis in original).
Instantly, the trial court determined that Appellant did not promptly file his petition to open:
(Trial Court Opinion, filed 12/6/22, at 2) (some capitalization omitted).
Although Appellant waited over four months before filing his petition to open, Appellant offers the excuse that he believed his insurance company was protecting his legal interests. We emphasize, however, that Appellant was served with the complaint and subsequent notice of Appellee's intent to seek default judgment. The notice of Appellee's intent to seek default judgment warned Appellant that: (1) he failed to enter an appearance personally or through an attorney; (2) he failed to file in writing with the court his defenses or objections to the claims in the complaint; (3) unless Appellant acted within ten days, a judgment might be entered against him without a hearing, and he may lose his property or other rights; and (4) he should take the notice to a lawyer at once. (See Notice, filed 9/1/21, at 1). Even after receiving the notice of the entry of the default judgment, Appellant still failed to take immediate action. Appellant's insurance company assigned counsel to defend Appellant "in early January 2022," but counsel was "unable to communicate with [Appellant]" prior to filing the petition to open the default judgment. (Petition to Open Default Judgment at ¶¶4, 5).
While Appellant now attempts to blame Appellee's counsel for the delays at issue, Appellant failed to take any steps to notify his insurer about the pending legal action. Under these circumstances, Appellant's belief that his insurance company was protecting his interests was not justifiable. See Duckson, supra. Considering the length of the delay between the entry of the default judgment and Appellant's filing of the petition to open, as well as Appellant's lack of a sufficient excuse for the delay, the court acted...
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