Fox v. Mellon

Citation264 A.2d 623,438 Pa. 364
PartiesBetty A. FOX v. James A. MELLON, Appellant.
Decision Date28 April 1970
CourtUnited States State Supreme Court of Pennsylvania
C. Richard Morton, Griffith, Morton & Buckley, West Chester, for appellant

Albert B. Wrigley, Kranzley, Wrigley, Yergey, Daylor, Pottstown, for appellee.

Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION OF THE COURT

COHEN, Justice.

This is an appeal from the refusal of the court below to open a default judgment which was taken at 9:08 A.M. on the twenty-first day following service of the complaint.

This action arose out of an automobile accident which occurred on May 15, 1964. On August 9, 1968, over four years later, appellee commenced her suit in trespass by filing a Praecipe for a Writ of Summons which was served on August 15. Appellant turned the writ over to his insurance agent who on August 19 forwarded it to the regional claims office of appellant's liability insurance carrier.

On October 3, 1968 appellee filed a complaint which was served on appellant's wife on October 4. Appellant had never been involved in a lawsuit before and did not notice the endorsement on the complaint to plead within twenty days. After trying unsuccessfully to talk to an attorney friend, he mailed the complaint to his broker who received it on October 14. The broker immediately mailed it to the liability carrier's claims office which received it on October 15. The manager of the claims office assumed that he had most of the twenty days left in which to respond because the broker's covering letter stated that he had received the complaint on October 14 and that it had been served shortly before that time.

During the following ten days the manager was busy processing approximately 1000 claims files in his office and attending court for several pending cases. On Friday, October 25 at about 4:10 P.M. (the prothonotary's office had closed at 4:00) the claims manager had requested C. Richard Morton to enter an appearance for appellant. On Monday, October 28 when counsel attempted to enter an appearance, he discovered that appellee had taken a default judgment at 9:08 A.M. on October 25, the twenty-first day after service.

On November 4 appellant filed a petition to open the judgment which the lower court denied because it felt appellant had not established sufficient equitable consideration.

Our cases are clear that a petition to open a judgment is an appeal to the court's discretion, Richmond v. A.F. of L. Medical Service Plan of Philadelphia, 415 Pa. 561, 204 A.2d 271 (1964); Murphy v. Smith, 415 Pa. 512, 204 A.2d 275 (1964); Scott v. McEwing, 337 Pa. 273, 10 A.2d 436 (1940), and that discretion may be exercised to order a judgment to be opened when three factors are present: (1) the petition to open is promptly filed, (2) a defense is shown to exist on the merits, and (3) the default is reasonably explained or excused. Thorn v. Clearfield Borough, 420 Pa. 584, 218 A.2d 298 (1966); Colucci v. Imperial, 414 Pa. 289, 200 A.2d 297 (1964); Wheel v. Park Building, 412 Pa. 545, 195 A.2d 359 (1963).

There is no question that the petition to open was filed promptly and that a meritorious defense to the personal injury claim has been shown by means of the statute of limitations. The court below felt appellant had not shown a reasonable explanation or excuse for the delay and thus insufficient equitable considerations were present to justify opening the judgment. The record shows that the complaint was served on appellant's wife and not on his counsel, that his education ended with the ninth grade, and that the notice to plead was in very small letters. A person untrained in the law would not be looking for any such notice, and when it was in such small lettering it was unlikely to catch his attention. Taking judgment so early on the twenty-first day together with the small notice to plead gives the impression that all this was a studied attempt by appellee to obtain a default judgment. Under all the circumstances, we feel appellant did show a reasonable explanation and excuse for the delay and that the court below abused its discretion in refusing to open the judgment.

Order reversed.

BELL, C.J., absent.

POMEROY, Justice (dissenting).

The court below found that 'no reasonable explanation or excuse for delay in entering an appearance or filing an answer is established,' and accordingly held, in the exercise of its discretion, that it would not be warranted in opening the default judgment the plaintiff had taken in this case. From my review of the record I cannot conclude that this holding was an abuse of discretion, and hence I dissent.

The docket entries show the following:

On August 9, 1968, a praecipe for summons was filed and a writ issued; it was served on August 15, 1968.

On October 3, 1968, a complaint was filed, and duly served by registered mail the following day, October 4.

On October 25, 1968, judgment by default was entered in favor of plaintiff for want of an appearance or an answer by defendant. 1

On November 4, 1968, petition to open the judgment was filed by defendant, and rule granted on plaintiff to show cause 'why judgment should not be stricken.'

The further facts of the case were developed by deposition pursuant to the rule to show cause. They show that upon being served with the writ, 'defendant promptly turned (it) over to his insurance agent who, on August 19, 1968, forwarded it to the Regional Claims Office of the defendant's liability insurance carrier', Ohio Casualty Insurance Co. (appellant's brief). The copy of the complaint which was served by registered mail on the following October 4 was accompanied by a letter from plaintiff's attorney to defendant. It gave the full caption of the case, and said 'Enclosed herewith please find a true and correct copy of the original complaint filed by me in this matter with the Prothonotary of the Court of Common Pleas of Chester County.' The defendant delayed sending the complaint to his insurance agent because 'I thought the case was over and done with. I wanted to talk to somebody about it that could enlighten me, so to speak.' He tried without success to reach an attorney friend of his. He wanted to talk to his insurance agent, Mr. Yoos, to whom he had earlier forwarded the summons, because 'I was concerned.' When asked why he didn't telephone Mr. Yoos, the answer was, 'Truthfully can't say.' Defendant did, however, mail the complaint to Mr. Yoos, who received it on October 14, 1968. On the same day, Mr. Yoos sent it to the Regional Claims Office of the insurance carrier with a covering letter reading (after a subject caption which identified the claimant and the insured):

'On 8--19--68 we sent you Summons in Trespass.

'Now att. is COMPLAINT rec. by us from insured today. Please handle as necessary.'

The claims manager of the Philadelphia branch office of the insurance company, a Mr. Melson, testified that the complaint was received in his office on October 15 from Mr. Yoos, the agent. Melson made no attempt to find out when the complaint had been served, but assumed this had occurred shortly before October 14, the date of mailing to him. He first spoke to the insurance company attorney (the attorney for appellant here) about the matter on the late afternoon of October 25, 1968. When asked on direct examination why he had not referred the matter to his counsel before October 25, he answered, 'Well, it was a matter of business in general. I had been attending a trial, I believe in Delaware County, and had a number of other such matters.' On cross-examination he repeated the substance of this answer, saying '_ _well, there was no reason other than occupation with the trial and with the other suits and the assumption made that it (the complaint) had been received by the insured on or closely before the fourteenth.' Mr. Melson stated that he had seventeen men working under him. He identified a Donald Chabin as an adjuster in his office who had worked on this case.

As President Judge Gawthrop in his opinion below observed, a period of two months and ten days elapsed between the service of the writ and the taking of judgment, during which time an appearance could have been entered; after the complaint was received in the Philadelphia claims department of the defendant's insurance carrier, there were still...

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