Hudgins v. Jewel T. Discount Store

• Decision Date: 10 March 1986
• Citation: 351 Pa.Super. 329,505 A.2d 1007
• Parties: Patricia HUDGINS v. JEWEL T DISCOUNT STORE, Appellant.
• Court: Pennsylvania Superior Court

Page 1007

505 A.2d 1007

351 Pa.Super. 329

Patricia HUDGINS v. JEWEL T DISCOUNT STORE, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 17, 1985.

Filed March 10, 1986.

Charles W. Craven, Philadelphia, for appellant.

Lynda M. Scher, Philadelphia, for appellee.

Before CIRILLO, MONTEMURO and POPOVICH, JJ.

POPOVICH Judge:

This is an appeal from the order of the Court of Common Pleas of Philadelphia County denying a petition to open judgment. We reverse and remand.

On April 19, 1984, the plaintiff/appellee, Patricia Hudgins, filed a complaint in trespass alleging that she sustained injuries when she fell on "slippery and/or sticky substances remaining on the floor" of the defendant/appellant, Jewel T Discount Store, in Philadelphia, Pennsylvania. Further, the complaint contained a standard notice to defend informing the defendant that if it did not take action within twenty days of service of the complaint, a judgment might be entered against it.

Service of the complaint was made by the Sheriff's Office at the defendant's Philadelphia store on April 24, 1984 by handing the document to the manager, Henry Hubbs. When no response was forthcoming from the defendant, counsel for the plaintiff sent a Notice of Intention to Take Default Judgment on May 18, 1984. The notice was mailed to the same address as the complaint was served, and the return receipt indicated that it was received by the manager/Hubbs on May 21, 1984.

When the defendant failed to act within the ten-day period recited in the notice, the plaintiff sought and was granted a default judgment on May 30, 1984.

The defendant filed a petition to open on June 5, 1984. Therein, it was alleged by the defendant that Hubbs had forwarded the complaint "within a few days" after its receipt to the district office in Blue Bell, Pennsylvania. Next, the defendant averred that the complaint was never received by its office in Blue Bell, and, if its district manager in Blue Bell had received the complaint, the information would have been sent on to its Chicago-based Special Services Department. Further, the defendant stated that a representative of Special Services had advised it that, as of June 4, 1984, the complaint had not yet been received.

In the remaining portion of the petition, as is relevant here, the defendant admitted receiving notice of the plaintiff's intention to seek a default judgment, but, it contended, Special Services was not advised of this fact until one day after the entry of the default judgment. Likewise, according to the defendant, the failure to act promptly was caused by the complaint allegedly being "lost in the mail between Blue Bell, Penna. and Chicago, Illinois."

After the plaintiff submitted a response to the petition to open, the court denied the defendant's request for relief. This appeal followed.

It is well settled that a petition to open a judgment is an appeal to the equitable powers of the court and will not be overturned on appeal absent an error of law or a clear, manifest abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Prior to granting a petition to open in a trespass action, the petitioner must establish that: (1) the petition was promptly filed after the judgment was entered, and (2) a legitimate explanation exists for the default. If the equities are otherwise clear, a meritorious defense need not be demonstrated. ¹ Hutchings v. Trent, 304 Pa.Super. 376, 450 A.2d 729 (1982).

In regard to the promptness with which the petition to open was filed, we do not take issue with the lower court's determination that, because it was filed within six days after entry of judgment, it was timely. However, the same result does not obtain in respect to the second prong, and the reason is that certain facts set forth in the petition were denied by the plaintiff. This put the burden of proof upon the moving party, i.e., the party asking that the judgment be opened. D'Amore v. Erthal, 421 Pa. 417, 219 A.2d 674 (1966).

Instantly, the defendant alleged in its petition to open at points 2-4 that Hubbs mailed the complaint to the district manager in Blue Bell within a few days of its receipt, and that neither the district manager nor its Special Services Department in Chicago, to whom the complaint would have been forwarded by the district manager, had ever received the document.

Contrary to the position taken by the lower court and the defendant, the record refutes their assessment that the plaintiff did not dispute the factual allegations set forth in the defendant's affidavits submitted in support of points 2-4 of the petition to open. In particular, counsel for the plaintiff filed a "Response to Defendant's Petition to Open Default Judgment" on June 26, 1984. As is relevant to the case at bar, the plaintiff answered the contentions of the defendant by averring that as to points "2-4[, t]hese allegations are deemed denied pursuant to the Pennsylvania Rules of Civil Procedure. Strict proof is demanded at time of trial."

Moreover, our scrutiny of the record has failed to uncover the affidavits referred to by the lower court and the defendant in support of the allegations concerning the manner in which the complaint was purportedly lost in the mail. Although the defendant has reproduced the affidavits in its brief to us, and even though unchallenged by the plaintiff and made reference to by the lower court, we are precluded from basing our disposition on such affidavits. Rather, we are required to base our ruling "on what is in the record." Commonwealth v. Rini, 285 Pa.Super. 475, 483, 427 A.2d 1385, 1390 (1981). Accord Sotak v. Nitschke, 303 Pa.Super. 361, 449 A.2d 729 (1982) (POPOVICH, J.).

As the case stands, the appellee's answer to the petition denied the factual allegations (Points 2-4) of the appellant's petition and demanded strict proof thereof. Therefore, as our Court has held in the past in this situation, "when a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa.Super. 84, 235 A.2d 435 (1967)." Hutchings v. Trent, supra, 304 Pa.Super. at 380, 450 A.2d at 731. The manner in which such proof is to be established is set forth in Pa.R.Civ.P. 209; it was not complied with in this case.

Rule 209 reads:

If, after the filing and service of the answer, the moving party does not within fifteen days: (a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or (b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above. If after hearing the rule shall be made absolute by the court, and the petitioner shall not proceed, as above provided, within fifteen days thereafter, the respondent may order the cause for argument on petition and answer, in which event all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of the rule.

As a corollary to the aforesaid, our Courts have ruled that the onus is on the petitioner to support his allegations of fact by depositions, Retzbach v. Berman, 222 Pa.Super. 523, 294 A.2d 917 (1972), a burden which cannot be avoided by substituting an ex parte affidavit unless the respondent either files no answering affidavit or does not deny the veracity of the facts recited in the petition or affidavit. Buxbaum v. Peguero, 335 Pa.Super. 289, 295, 484 A.2d 137, 140 (1984). This is not the case here.

Accordingly, only after petitioner is ruled to proceed, and fails to take depositions or order the cause for argument on the petition and answer, will the factual averments of the respondent be taken as true. Smith v. Dale, 405 Pa. 293, 296, 175 A.2d 78, 80 (1961).

In the instant case, when the lower court ruled on the petition, neither party had taken any action under Rule 209. The petitioner had not taken depositions or ordered the cause for argument on petition and answer, and the respondent had not served a rule on petitioner to show cause why depositions should not be taken or the matter ordered for argument on the petition and answer. See Lazzarotti v. Juliano, 322 Pa.Super. 129, 469 A.2d 216 (1983).

Based on the petition and answer alone, the court refused to open the default judgment. This decision was clearly premature. See Instapak v. S. Weisbrod Lamp & Shade, 248 Pa.Super. 176, 374 A.2d 1376 (1977). We also find the decision in Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979), to be similar in substance to the one at bar and look to it for guidance.

In Shainline, an assumpsit action was commenced seeking payment from the appellant for services rendered by the appellee. Service of the complaint was made upon the appellant, who, in turn, mailed the complaint to his counsel. The complaint apparently did not reach its destination until six days after an answer was due. This same day a default judgment was secured by the appellee, and this was followed four days later by a petition to open. An answer was filed by the appellee denying the factual allegations in the appellant's petition that the complaint was supposedly "mishandled" in the mails and delivered to another office in the same building in which his attorney was located. The court disposed of the matter on petition, answer and briefs against the appellant.

On appeal, this Court found that the lower court acted prematurely in not allowing the Rule 209 machinery to be utilized in resolving the disputed factual averments. This Court stated the proposition thusly:

Instead of waiting for either party to take action under the rule, the court decided the petition on petition and answer...