Kelly v. Carman Corp.
Decision Date | 12 February 2020 |
Docket Number | No. 2273 EDA 2018,No. 2274 EDA 2018,2273 EDA 2018,2274 EDA 2018 |
Citation | 229 A.3d 634 |
Parties | Ronald KELLY and Patrice Kelly, as Assignees of BBK Tavern, Inc. d/b/a the Princeton Tavern, by and Through Its Authorized Representative John Bell v. The CARMAN CORPORATION and Sergius B. Carman Appeal of: the Carman Corporation Ronald Kelly and Patrice Kelly, as Assignees of BBK Tavern, Inc., d/b/a the Princeton Tavern, by and Through Its Authorized Representative, John Bell Appellant v. The Carman Corporation and Sergius B. Carman |
Court | Pennsylvania Superior Court |
Brian R. Elias, Blue Bell, for appellant.
Steven M. Mezrow, Philadelphia, for appellee.
Ronald Kelly and Patrice Kelly (collectively, "the Kellys"), as assignees of BBK Tavern, Inc. ("BBK"), doing business as The Princeton Tavern, by and through its authorized representative John Bell, appeal from the order of June 26, 2018, that: entered a judgment notwithstanding the verdict ("JNOV") in favor of The Carman Corporation ("CC") and Sergius B. Carman ("Mr. Carman") (collectively, "Carman") as to negligence; and ordered a new trial to determine the amount of damages to be awarded for the sole remaining claim of breach of contract by CC only. CC cross-appeals from the same order, which also denied all other issues and claims raised in Carman's post-trial motions. We affirm.
CC Trial Court Opinion ("TCO"), No. 2274 EDA 2018, filed March 6, 2019, at 4 ( ).
Kelly v. Siuma , 34 A.3d 86, 87 (Pa. Super. 2011) (some footnotes omitted).
TCO, No. 2274 EDA 2018, filed March 6, 2019, at 4 (some formatting).
"On July 26, 2010, Attorney Gregory Kowalski, who represented the Kellys in the [D]ram [S]hop [A]ction, spoke with Ms. Sapienza regarding the unanswered complaint[.]" TCO, No. 2273 EDA 2018, filed May 8, 2019, at 5. Having received no answer from BBK in the Dram Shop Action, Kelly , 34 A.3d at 87.
"On September 14, 2010, twenty days after the Entry of Default Judgment, [the Kellys'] counsel faxed to [CC] a filed copy of the Complaint in [the Dram Shop Action but] did not advise [CC] that a default judgment had been entered." Id. at 88. "On or about September 15, 2010, [CC] forwarded the [Kellys'] Complaint to RCA Insurance Group, the third party administrator for State National Insurance Company, Inc. [ ("SNIC") ], the insurance company for [BBK[ ]]." Id. "On September 23, 2010, while beginning the process of opening a file on behalf of [BBK[ ]], [RCA Insurance Group] pulled a copy of the Civil Docket Report and discovered the entry of the default judgment against [BBK[ ]]." Id.
TCO, No. 2274 EDA 2018, filed March 6, 2019, at 1, 3-5 (some footnotes omitted) (some additional formatting).
On November 5, 2013, the Kellys filed their original complaint in the instant case, and, on January 9, 2014, they filed an amended complaint, averring as follows:
Amended Complaint, 1/9/2014, at ¶¶ 19, 24, 27-28, 34.
[O]n March 23, 2015, the Honorable Marlene Lachman denied Defendants' motion for summary judgment which asserted [the Kellys'] claims were time-barred by the statute of limitations. ... The Superior Court granted a motion to quash Defendants' appeal of Judge Lachman's denial of summary judgment. Kelly v. Carman Corporation , No. 1276 EDA 2015, order (Pa.Super., July 1, 2015) (order granting application to quash appeal).
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