Kelly v. Siuma

• Citation: 2011 PA Super 234,34 A.3d 86
• Parties: Ronald KELLY and Patrice Kelly, h/w, Appellee v. Michael SIUMA, Marie Siuma, Joseph Dittmar, Inc., d/b/a/ Princeton Tavern, BBK Tavern, Inc., d/b/a the Princeton Tavern, the New Princeton Tavern, Inc.,Appeal of BBK, Inc., d/b/a the Princeton Tavern.
• Decision Date: 03 November 2011
• Court: Superior Court of Pennsylvania

2011 PA Super 234

34 A.3d 86

Ronald KELLY and Patrice Kelly, h/w, Appellee

v.Michael SIUMA, Marie Siuma, Joseph Dittmar, Inc., d/b/a/ Princeton Tavern, BBK Tavern, Inc., d/b/a the Princeton Tavern, the New Princeton Tavern, Inc.,Appeal of BBK, Inc., d/b/a the Princeton Tavern.

Superior Court of Pennsylvania.

Argued Oct. 4, 2011.Filed Nov. 3, 2011.

Joseph D. Deal, Cherry Hill, N.J., for BBK, INC., appellant.

Steven M. Mezrow, Philadelphia, for Kelly, appellee. (Submitted).

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and GANTMAN, JJ.

OPINION BY STEVENS, P.J.:

This is an appeal from the December 9, 2010 order entered in the Court of Common Pleas of Philadelphia County denying Appellant BBK, Inc.'s, d/b/a the Princeton Tavern (hereinafter BBK, Inc.), petition to open the default judgment entered in favor of Appellees Ronald and Patricia Kelly (hereinafter collectively the Kellys). We affirm.

The relevant facts and procedural history are as follows: On December 18, 2009, the Kellys, who are husband and wife, filed a civil complaint against numerous defendants ¹ averring that, on May 23, 2007, Michael Siuma, while driving under the influence of alcohol,² collided with the Kellys' vehicle, thus seriously injuring the driver, Mr. Kelly. The Kellys averred that, prior to driving, Mr. Siuma consumed alcohol at the Princeton Tavern and, in fact, he was served alcohol after he was visibly intoxicated. The Kellys presented negligence claims against Mr. Siuma with regard to his operation of the motor vehicle, negligent entrustment claims with regard to Ms. Siuma, and claims under “the Dram Shop Act” ³ with regard to all remaining defendants, including BBK, Inc. Additionally, the Kellys sought damages due to Mrs. Kelly's loss of consortium.

On February 16, 2010, Mr. and Ms. Siuma filed an answer with new matter, in response to which the Kellys filed an answer. Having received no answer with regard to the remaining defendants, including BBK, Inc., on August 4, 2010, the Kellys provided an Important Notice of Intent to Enter Default Judgment against them. On August 25, 2010, the Kellys filed praecipes to enter judgment by default against BBK, Inc., the New Princeton Tavern, Inc., and Joseph Dittmar, Inc., d/b/a Princeton Tavern.

On October 8, 2010, BBK, Inc. filed a petition to open the default judgment, as well as a supporting memorandum of law. In its petition to open, BBK, Inc. averred, in relevant part, the following:

7. [BBK, Inc.] specifically denies serving alcoholic beverages to Michael Siuma while visibly intoxicated on or about May 23, 2007.

8. [BBK, Inc.] presented plaintiffs' Complaint to David Lehman, Esquire with the understanding that he would assist them in this matter.

9. Mr. Lehman corresponded and/or spoke with plaintiffs' counsel regarding his role in the case. Mr. Lehman requested, and counsel for plaintiff[s] agreed, not to file a default judgment while he sought to obtain insurance coverage for [BBK, Inc.].

10. On or about August 25, 2010, plaintiffs filed a Praecipe for Entry of Default Judgment.

11. On September 14, 2010, twenty days after the Entry of Default Judgment, counsel for plaintiffs faxed to Carmen Corp., the insurance broker for [BBK, Inc.], a filed copy of the Complaint in this matter. Counsel did not advise the Carmen Corp. that a default judgment had been entered.

12. On or about September 15, 2010, the Carmen Corp. forwarded the plaintiffs' Complaint to RCA Insurance Group, the third party administrator for State National Insurance Company, Inc., the insurance company for [BBK, Inc.]. Thereafter, RCA Insurance Group assigned the defense of [BBK, Inc.] to the undersigned, [Joseph D. Deal, Esquire].

13. On September 23, 2010, while beginning the process of opening a file on behalf of [BBK, Inc.], [Attorney Deal] pulled a copy of the Civil Docket Report and discovered the entry of the default judgment against [BBK, Inc.]. [Attorney Deal] immediately called Gregory Kowalski, Esquire, the attorney who sent the Complaint to the Carmen Corp., to advise him of [Attorney Deal's] assignment and asked if he would stipulate to vacate the default judgment. Mr. Kowalski advised that the decision on this issue would have to be made by Michael O. Pansini, Esquire. He further advised that Mr. Pansini was in trial and said that he would have him call [Attorney Deal].

14. On September 24, 2010, [Attorney Deal] sent a letter to Mr. Kowalski confirming [the] conversation, including [Attorney Deal's] request for a Stipulation to Vacate the Default Judgment, and asking that he have Mr. Pansini call [him] to discuss this matter as soon as possible.

15. [Attorney Deal] followed the September 24, 2010 letter with phone calls to the Pansini & Mezrow law offices on September 27, September 28, September 29, September 30, October 1, and October 4. Neither Mr. Kowalski nor Mr. Pansini returned any of these phone calls.

16. On October 4, 2010, [Attorney Deal] sent another letter to Mr. Kowalski, advising him that [Attorney Deal] had learned of the communications with Mr. Lehman and putting him on notice that [BBK, Inc.'s] insurance carrier had reserved their rights in this matter due to late notice and the prejudice suffered by the entry of a default judgment. [Attorney Deal] once again requested that either Mr. Kowlaski or Mr. Pansini call [Attorney Deal] to discuss this matter ‘as soon as possible.’

17. On October 5, 2010, [Attorney Deal] received a phone call from Mr. Pansini's partner, Steve Mezrow. Mr. Mezrow advised that he was calling at the request of Mr. Pansini, who was engaged in another trial. He indicated that he had no authority to stipulate to vacate the default judgment and then said that his partner may be willing to do so in return for an agreement to place the case into binding arbitration. [Attorney Deal] advised Mr. Mezrow that at this point [he] was just seeking a response to [his] inquiry as to whether or not the plaintiffs [were] willing to stipulate to vacate the default judgment. He said that he would have Mr. Pansini get back to [him]. To date, [Attorney Deal] ha[s] not heard from Mr. Pansini and still do[es] not know his position with regard to vacating the default judgment.

BBK, Inc.'s Petition to Open the Default Judgment filed 10/8/10 at 2–4.

Further, in its accompanying memorandum of law, BBK, Inc. continued to deny serving Mr. Siuma alcohol while he was visibly intoxicated. Additionally, BBK, Inc. averred, in relevant part:

[BBK, Inc.] presented plaintiffs' Complaint to David Lehman, Esquire with the understanding that he would assist them in this matter. Mr. Lehman corresponded and/or spoke with plaintiffs' counsel regarding his role in the case. Mr. Lehman requested and counsel for plaintiff agreed not to file a default judgment while he sought to obtain insurance coverage for [BBK, Inc.]. On or about August 25, 2010, plaintiffs filed a Praecipe for Entry of Default Judgment.

On September 14, 2010, twenty days after the Entry of Default Judgment, counsel for plaintiffs faxed to Carmen Corp., the insurance broker for [BBK, Inc.], a filed copy of the Complaint in this matter. Counsel did not advise the Carmen Corp. that a default judgment had been entered. On or about September 15, 2010, the Carmen Corp. forwarded the plaintiffs' Complaint to RCA Insurance Group, the third party administrator for State National Insurance Company, Inc., the insurance company for [BBK, Inc.]. Thereafter, RCA Insurance Group assigned the defense of [BBK, Inc.] to [Attorney Deal].

BBK, Inc.'s Memorandum of Law In Support of Petition for Relief From Judgment of Default filed 10/8/10 at 2. BBK, Inc. reiterated the action Attorney Deal took after September 23, 2010, when he opened BBK, Inc.'s file and specifically indicated:

The reasons for the delay in taking action on this petition and the plaintiffs' Complaint are indeed legitimate and reasonable. [BBK, Inc.] took plaintiffs' Complaint to an attorney. The attorney engaged in discussions with plaintiffs' counsel while making efforts to secure insurance coverage for [BBK, Inc.]. Mr. Lehman had a verbal agreement with plaintiffs' counsel that he would not take a default judgment. While Mr. Lehman was still making efforts to secure coverage, the plaintiffs took the default judgment. It was not until that time that counsel or plaintiffs put [BBK, Inc.'s] insurance carrier on notice of the subject claim by sending a copy of the Complaint, without the filed default judgment, to [BBK, Inc.'s] insurance broker. [BBK, Inc.] acted reasonable in retaining counsel to assist in this matter. Unfortunately, the actions of its counsel were not enough to prevent the entry of default judgment.

BBK, Inc.'s Memorandum of Law In Support of Petition for Relief From Judgment of Default filed 10/8/10 at 5.

BBK, Inc. also filed on October 8, 2010 an answer, with new matter and a cross-claim, to the Kellys' civil complaint. The Kellys filed an answer to the new matter and cross-claim, as well as an answer and supporting memorandum of law to BBK, Inc.'s petition to open the default judgment. In their answer, the Kellys averred, in relevant part:

In essence, the only thing that [BBK, Inc.] addresses in its petition is the time frame and delay from the date that the Default Judgment was entered to the time when it filed the instant Petition.

At no point does [BBK, Inc.] explain inactivity in delay in failing to file an answer to Plaintiffs' Complaint[.]

* * *

The evidence of record shows nothing but deleterious behavior and a general denial of Plaintiffs' claims with no facts of record which develop reasonable excuse or a meritorious defense.

* * *

[BBK, Inc.] demonstrates no facts showing it did anything but sit on its hands for close to a year, doing nothing. [BBK, Inc.] was given every opportunity to answer Plaintiffs' Complaint and defend itself. The time for discovery came and went. The time for expert reports came and went. A settlement conference date was...