Graham v. Kutler
| Decision Date | 12 August 1977 |
| Docket Number | 322 |
| Citation | 2 Phila. 355 |
| Parties | Cleophus Graham and Randie Graham, his wife v. Meyer S. Kutler and Marilyn Z. Kutler, his wife and Robert Kay Associates, Inc |
| Court | Pennsylvania Commonwealth Court |
(1) An attorney's unexcused delay in failing to file answers to interrogatories for a 241-day period warranted the trial court in refusing to open a default judgment entered as a sanction for such failure
(2) In an appropriate case, a delay of 35 days can constitute such laches as to bar the opening of a default judgment
(3) An attorney's mere unexcused or unjustified, inadvertence mistake, negligence, or oversight does not satisfy one of the three criteria for opening a judgment, but such inadvertence mistake, negligence, or oversight must be supported by evidence in the record to establish that it is itself excused or justified
(4) A trial court can properly balance the equities in an action involving a petition to open a default judgment, and in this case, defendants' equities of an unexcused inadvertence and unproven allegation of " misunderstanding" were outweighed by plaintiffs' equities represented by diligence of their counsel and the perpetual maxim that " justice delayed is justice denied."
(5) An order of a trial court granting or denying a petition to open judgment is within such court's discretion, and such an order is not to be overturned unless there is a manifest abuse of discretion in such a decision
(6) To find a manifest abuse of discretion, one of the following actions of the trial court must be determined on the record: [1] the trial court is guilty of a misapplication or overriding of the law; [2] the trial court's judgment was unfair, unjust, or unreasonable; [3] the trial court was guilty of bias, prejudice, ill-will or partiality.
F. Emmet Ciccone, Esquire, for Plaintiffs
David H. McCartney, Esquire and James M. Marsh, Esquire, for Defendants
The instant appeal is taken from an Order of the trial Court denying a petition to open a default judgment entered against the defendants as a sanction for failure to file answers to written interrogatories propounded to them under Pa. R.C.P. 4005. [1]
In our discussion of the pertinent facts of record, we have the following evidentiary items at our disposal: the original complaint which was filed and served and an answer thereto which alleges new matter, the petition to open and affidavits in suport thereof containing " new matter", a " reply" to new matter contained in said answer to the petition to open, record papers, docket entries, and the oral depositions of the attorneys for the plaintiffs and defendants. [2]
On December 2, 1975, Cleophus Graham and Randie Graham, his wife, plaintiffs, instituted an action in trespass by the filing of a complaint against Meyer S. Kutler and Marilyn Z. Kutler, his wife, and Robert Kay Associates, Inc., as defendants. The complaint in trespass was served upon all the named defendants on December 4, 1975. In this action, the plaintiffs, as tenants of a third floor apartment at the multi-unit dwelling located at 18 S. 43rd Street, Philadelphia, Pennsylvania, sought damages for personal injuries for several stairway falls allegedly caused by the negligence of the defendants as their landlords. [3]
Following service of the complaints, all of the defendants retained the same counsel. [4] The plaintiffs' attorney thereafter granted defense counsel an extension of time to file an appearance, an answer, and the required written demand for jury trial. Finally, on February 25, 1976, defense counsel entered his appearance and filed an answer containing new matter in response to plaintiffs' complaint. On February 26, 1976, after a stipulation of counsel containing a three week extension had already been filed and granted court approval, defense counsel filed a written demand for a jury trial. (See, Ciccone depositions, p. 3; Walsh depositions, pp. 2-3; docket entries; record papers) As required by Pa. R.C.P. 1018.1, the first page of the complaint filed in this action contains a full and complete notice to defend. Accordingly, the defendants would have normally had a period of twenty days in which to file an appearance and/or answer to the plaintiffs' complaint in trespass. See, Pa. R.C.P. 1045; Pa. R.C.P. 1047. Here, as a result of defense counsel's inaction and the indulging extension of time granted by plaintiffs' attorney, a period of eighty-one days (four times that allowed under pertinent Rule of Court) elapsed before an appearance and answer were filed.
On April 9, 1976, plaintiffs' counsel filed of record written interrogatories addressed to the defendants under Pa. R.C.P. 4005. These interrogatories were served upon defense counsel on or about April 13, 1976. (Ciccone depositions, p. 5; Walsh depositions, p. 3; exhibit D in answer to petition to open; docket entries; record papers) As appears in the record, the first paragraph of these interrogatories contains the required notice that " defendants are requested to answer under oath within twenty (20) days from receipt hereof the following Interrogatories." See, Pa. R.C.P. 4006. Following service of these interrogatories, defense counsel did not exercise his right to file and serve written objections thereto under Pa. R.C.P. 4005(b). Thereafter, although the record is devoid of any specified dates of such occurrences, plaintiffs' attorney contends that he had " one or two" telephone conversations with defendants' attorney concerning when answers to the interrogatories would be filed. Plaintiffs' attorney alleges that defense counsel told him that " they (the answers to interrogatories) were forthcoming." (Ciccone depositions, pp. 5-6) In any event, the matter was allowed to lie dormant until October 26, 1976. In this period of six months and thirteen days, the defendants did not file of record any written answers to the interrogatories addressed to them and received by their attorney on April 13, 1976. Moreover, other than the " one or two" telephone conversations mentioned, there were no communications between the attorneys for the parties concerning the required answers to interrogatories in this time frame.
After this passage of 193 days in which the defendants had failed to answer the plaintiffs' interrogatories, plaintiffs' attorney sought to enforce his clients' rights under pertinent Rules of Civil Procedure. On October 26, 1976, plaintiffs' attorney mailed defendants' attorney a notice of intention to file praecipe for interlocutory order under local Rule of Civil Procedure 4005*(d). [5] (Ciccone depositions, p. 6; Walsh depositions, p. 3; record papers) There is no dispute that defense counsel received this notice in proper and due course of post. Most significantly, plaintiffs' attorney gave a 15-day notice to defendants' attorney in lieu of the 10-day notice provided in the Rule. Defense counsel's receipt of this notice under local Rule 4005*(d) is further corroborated by his reply letter to plaintiffs' attorney. This letter dated October 28, 1976 states that defense counsel " would appreciate your not filing it." It further pledges the forwarding of answers to interrogatories " within the next two weeks." [6] (Ciccone depositions, pp. 6-7; Walsh depositions, pp. 2-4, 7, 11-12; Exhibit F in answer to petition to open.) Plaintiffs' attorney never replied to this letter of October 28, 1976 from his adversary. Further, defense counsel never filed answers to interrogatories within the two week period stated in his letter.
On November 10, 1976, in accordance with local Rule 4005*(d), plaintiffs' attorney filed the required proof of service and praecipe for interlocutory order with the Prothonotary of Philadelphia County. On the same date, the Prothonotary entered an interlocutory order directing that the defendants file answers to interrogatories within thirty days or suffer a judgment by default. [7] During the next thirty days, the defendants further failed to respond by filing answers to the interrogatories. As of November 10, 1976 when this interlocutory order was entered, a period of 208 days had elapsed since the defendants had first been served with interrogatories in this action.
On December 13, 1976 at about 4:00 p.m., plaintiffs' attorney filed a supplemental praecipe under local Rule 4005*(d) with the Prothonotary of Philadelphia County. Upon such praecipe, the Prothonotary entered judgments by default against all of the defendants in this case. Upon leaving the Prothonotary's office, plaintiffs' attorney personally hand-delivered a written notice of the default judgments to the law office of defendants' attorney. (Ciccone depositions, pp. 8, 14-17) Defendants' attorney reponded to his receipt of this notice of default by his letter dated December 14, 1976 to plaintiffs' attorney. This letter was received by plaintiffs' attorney on December 16, 1976. (Ciccone depositions, p. 10; Walsh depositions, pp. 4, 8, 12-13) In this letter, defendants' attorney: (1) alleges that his prior letter dated October 28 1976 evidenced an agreement to defer sanctions; (2) states that he had forwarded " draft" answers to interrogatories to his clients for execution; (3) submits " draft" answers to interrogatories which were neither supported by affidavits nor filed of record; (4) tenders a stipulation to strike the default judgment and to withdraw plaintiffs' motion for interlocutory order. [8] In a telephone conversation on December 16, 1976, plaintiffs' attorney told defendants' attorney that his clients would not permit him to execute the tendered stipulation to strike the default judgment. In fact, defendants' attorney was advised to file a petition to open judgment. (Ciccone depositions, pp. 10-11) In...
To continue reading
Request your trial