Stabley v. Great Atl. & Pac. Tea Co.

• Decision Date: 10 April 2014
• Citation: 2014 PA Super 72,89 A.3d 715
• Court: Pennsylvania Superior Court
• Parties: Bertha STABLEY, Appellee v. The GREAT ATLANTIC & PACIFIC TEA CO. and Pathmark Stores, Inc., Appellants.

89 A.3d 715

2014 PA Super 72

Bertha STABLEY, Appellee

v.The GREAT ATLANTIC & PACIFIC TEA CO. and Pathmark Stores, Inc., Appellants.

Superior Court of Pennsylvania.

Submitted Nov. 12, 2013.

Filed April 10, 2014.

Audrey J. Copeland, King of Prussia and Andrew S. Rosembloom, Cherry Hill, N.J., for appellants.

Ronald E. Freemas, Media, for appellee.

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

OPINION BY WECHT, J.:

The Great Atlantic & Pacific Tea Company (“A & P”) and Pathmark Stores, Inc. (“Pathmark”) (collectively, “Appellants”), appeal the trial court's order denying their petition to open the default judgment entered in favor of Bertha Stabley and against Appellants. We affirm.

The underlying claim arose when Stabley was struck by a column of shopping carts in a Pathmark parking lot, which were being pushed by a Pathmark employee. Trial Court Opinion (“T.C.O.”), 8/5/2013, at 1. The trial court set forth the materially undisputed procedural history as follows:

This case originated with the filing, on September 13, 2012, of [Stabley's] two[-]count Complaint against [Appellants] alleging their failure to properly train and supervise the referenced Pathmark employee, and to safeguard [Stabley] as a business invitee on their premises due to the employee's failure to maintain control of the carts, to keep a proper lookout, and to issue a warning to [Stabley] that he was pushing the carts in her direction. [Stabley] claimed that her injuries included a pelvis fracture, a sacral ala [ ] fracture, as well as lacerations on her left arm and contusions on her right arm. Returns of Service from the Delaware County Pennsylvania Sheriff's Office evince that [Pathmark] was personally served with a copy of the Complaint on September 25, 2012 at its facility in Boothwyn, Pennsylvania where [Stabley] had been injured, and that [A & P] was personally served with a copy of the Complaint on September 26, 2012 at its office in Harrisburg, Pennsylvania.

Neither of [Appellants] timely responded to the Complaint by mid-October, 2012, or within twenty days of service. It was not until October 26, 2012 that [Stabley's] attorney received a call from one of [Appellants'] legal representative[s] requesting an extension of thirty days from the date of that conversation in which to do so. [Stabley's attorney granted the requested extension.] When no responsive pleading was filed by [Appellants] by November 26, 2012, [Stabley's] counsel, nevertheless, notified [Appellants'] attorney by letter correspondence, mailed ten days later on December 6, 2012, that it was then fifty-one days past the date when their responsive pleading was due, but that he was allowing an additional ... extension ... until December 10, 2012, for the response to be filed. Expressed in this letter was the clear warning that: “It is not my desire to take a default judgment in this matter; however, unless I receive your response by Monday, December 10, 2012, I will be forced to file the appropriate praecipe with the Court.”

Appellants' responsive pleading to the Complaint was not filed by December 10, 2012. However, [Stabley's] attorney, mindful of the demands of the holidays, waited until January 3, 2013, or 79 days after a response to the Complaint was required to be filed with the court, and 38 days following the November 26, 2012 time extension for doing so, to file and mail the requisite ten day Notice of the Intention to Take Default Judgment to defense counsel, noting therein that “[i]f no Answer to the Complaint is received in this office within ten (10) days of this date, the proper papers will be filed with the court.” The certified mail receipt adducing [Appellants'] acceptance of this notice bears the date of January 7, 2013. However, when the responsive pleading went unfiled after ten days, [Stabley's] counsel, in an ongoing spirit of accommodation, waited an additional five days after January 13, 2013 to file a Praecipe to Enter Default Judgment against [Appellants]. Docket entries in the case for January 18, 2013 bear the notations: “Judgment Entered in Favor of the Plaintiff and Against the Defendant for Failure to File an Answer”; “Copy of Ten Day Notice Affidavit”[;] and that notice of the entry of the judgment had been sent on the same date.

Eleven days later, on January 29, 2013, [Appellants] submitted their Petition to Open Default Judgment claiming that they had filed it the day after receiving notice of the entry of judgment against them in the mail as opposed to ten days following the judgment's docketing with the court. Curiously, the date of [Appellants'] purported receipt of that document on January 28, 2013 is 57 days after one of the [Appellants'] attorneys had entered his appearance in this actionfor the defense on December 2, 2013, according to a document submitted by [Appellants] as Exhibit B to their Petition. Moreover, although there is no docket entry of this nature whatsoever in the record, counsel for [Appellants] represented in the certificate of service accompanying their Petition to Open Default Judgment that “a true and correct copy of the foregoing Answer to [Stabley's] Complaint with New Matter was electronically filed with the Court and served via U.S. First Class Mail upon [Stabley's] counsel” approximately eight days previously on January 21, 2013. [Stabley's] attorney denies ever having received a mailed copy of [Appellants'] Petition to Open Default Judgment from defense counsel, and avers that he discovered the existence of the Petition only when he filed a Certificate of Readiness with the Court on March 5, 2013.

T.C.O. at 1–4 (record citations omitted). As implied by the above, it is undisputed that, while no responsive pleading was ever filed of record, a proposed answer was provided as an exhibit to Appellants' Petition to Open Default Judgment.

On April 29, 2013, the trial court held a hearing concerning Appellants' petition to open. There, Appellants' counsel observed that, unlike a truly absent defendant, they had been in contact with Stabley's attorney repeatedly over the months in question, and had participated in settlement negotiations. Counsel for Appellants further attributed their delay to the following factors:

[T]he way our dynamic [works] is that Pathmark sends the complaint up to our main office in New York and that it gets spenced [ sic ] out to us. Being that I was new at the firm at the time I wasn't personally allowed to answer. We have a managing partner in our New York City office who's licensed to practice down here as well. Unfortunately, his secretary[,] who is no longer with us, it's not the first calendar issue she missed, she missed it. We did move as promptly as possible. [Stabley's counsel] wants to talk about the mail. He's not sure why we got it. I served these papers with him, you know, promptly, yet he—his opposition was not submitted to the Court timely either. He said that he did not receive them. I mailed them the day that they were filed when I ran here to the courthouse to file them, but we have been here to appear. We have all the medical records for his client that he had previously sent to us and we're looking to move forward in this matter. Quite frankly I understand the age of his client, but I'm not sure whether the age will come into [the] determination and we do have a meritorious defense. On our own initial investigations into this is that his client was walking in the rain with her head down with an umbrella in front of her and she walked right in the path in front of a person that was pushing the carts. He has 12 carts. He couldn't stop in time.

T.C.O. at 6 (quoting Notes of Testimony (“N.T.”), 4/29/2013, at 10–11). At the hearing, the trial court observed that Appellants still had failed to docket a responsive pleading in the matter, and gave Appellants ten days from the date of the hearing to do so. Nonetheless, Appellants did not file a responsive pleading. Id. at 7.

By order entered on April 29, 2013, the trial court denied Appellants' petition to open and upheld the entry of default judgment in favor of Stabley. On May 29, 2013, Appellants filed a timely notice of appeal. On June 7, 2013, the trial court directed Appellants to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellants timely complied on June 28, 2013. The trial court filed its Rule 1925(a) opinion on August 5, 2013, and this case is ripe for our review.

Before this Court, Appellants raise the following issue:

Did the trial court abuse its discretion in denying [Appellants'] Petition to Open Default Judgment where the evidence established that [Appellants] promptly filed [their] Petition to Open Default Judgment, offered a reasonable explanation for [their] delay in answering [Stabley's] Complaint, provided a meritorious defense to the allegations in its proposed Answer, and there was little to no prejudice to [Stabley]?

Brief for Appellants at 2.

The trial court's review of a petition to open, and our review of a trial court's order addressing same, are governed by the following standards:

A petition to open a default judgment is addressed to the equitable powers of the court and the trial court has discretion to grant or deny such a petition. The party seeking to open the default judgment must establish three elements: (1) the petition to open or strike was promptly filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. The court's refusal to open a default judgment will not be reversed on appeal unless the trial court abused its discretion or committed an error of law. An abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill-will. Moreover, this Court must determine whether there are equitable...