Opinion
Argued June 5, 1981
December 10, 1981.
Judgment — Petition to open default judgment — Scope of review — Error of law — Abuse of discretion — Excuse for default — Prompt filing — Remand.
1. A petition to open a default judgment is addressed to the discretion of the court and is governed by principles of equity, and action by the court on such petition will be reversed on appeal only where that discretion is clearly abused or an error of law was committed. [115]
2. A default judgment will be opened only when a satisfactory explanation for the failure to act is presented, where a meritorious defense to the action is shown to exist and when the petition to open has been promptly filed. [115]
3. A reasonable belief that one is being properly represented by counsel and that one's legal interests are being protected can constitute a sufficient excuse for failure to enter an appearance prior to the entry of a default judgment. [115]
4. A delay in filing a petition to open a default judgment may be excused when resulting from negotiations to attempt an amicable removal of that judgment, and, in the absence of evidence as to the extent or duration of such negotiations, a matter must be remanded for additional testimony when the lower tribunal based its action in opening the judgment upon the fact that a delay was justified because of such negotiations. [117]
Judge WILLIAMS, JR. concurred in the result only.
Argued June 5, 1981, before Judges ROGERS, WILLIAMS, JR. and PALLADINO, sitting as a panel of three.
Appeal, No. 1911 C.D. 1980, from the Order of the Administrator of Arbitration Panels for Health Care in case of William Gravely v. E. J. Gaffney et al., No. M79-0163.
Complaint with the Administrator of Arbitration Panels for Health Care charging medical malpractice. Default judgment entered. Defendants filed petition to open and set aside default judgment. Petition granted. Plaintiff appealed to the Commonwealth Court of Pennsylvania. Hold: Reversed and remanded.
R. Michael Owens, for petitioner.
Michael W. Bolechowski, Assistant Attorney General, with him James R. Ingram, Deputy Attorney General, for respondents.
William Gravely (Petitioner) appeals from an order of the Administrator for Arbitration Panels for Health Care (Administrator) which granted Respondents' Petition to Open and Set Aside Default Judgment. We reverse and remand.
E. J. Gafney, Kemal Dincer, D. J. McMonagle, Joan Beiller, Nelson Wills, Michael Scheer and Philip Scotch.
Petitioner, an inmate at the State Correctional Institute at Graterford (Graterford), filed a complaint on June 7, 1979, alleging negligence by Respondents, all of whom were members of the medical staff at Graterford, in their treatment of Claimant for an infection in his hands. The complaint was served on Respondents by certified mail on June 11, 1979. Neither Graterford nor the Commonwealth were named as parties or served with the complaint. Respondents failed to answer or enter an appearance to the complaint. Petitioner filed a Praecipe for Default Judgment with the Administrator on August 20, 1979, and a default judgment was entered against each Respondent as to the issue of liability on August 27, 1979.
Pa. R.C.P. 237.1, which became effective on February 1, 1980, requires that a defendant be given at least ten days notice of complainant's intention to take a default judgment prior to the filing of the praecipe for entry of the default.
Upon learning of the default judgment, officials at Graterford notified legal counsel (the Pennsylvania Department of Justice) on September 12, 1979, and a Petition to Open and Set Aside Default Judgment was filed on January 17, 1980. The Administrator granted the Petition on July 11, 1980.
Petitioner claims an abuse of discretion in opening the default judgment because (1) no adequate justification was shown for failure to file a responsive pleading and (2) no sufficient reason was shown for a 127 day delay in filing the petition to open the default judgment.
Action on a petition to open a default judgment is discretionary and is governed by principles of equity. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971). Exercise of discretion, however, must be based on competent evidence. Shainline v. Alberti Builders, Inc., 266 Pa. Super. 129, 403 A.2d 577 (1979); Brown Bigelow, Inc. v. Borish, 165 Pa. Super. 308, 67 A.2d 823 (1949). The scope of review of this Court is to determine whether there is an error of law or a clear abuse of discretion. Balk; Nevils v. Chernitsky, 244 Pa. Super. 501, 368 A.2d 1297 (1976).
A default judgment should be opened only where (1) a satisfactory explanation is offered as to why there was a failure to act prior to the entry of judgment; (2) a meritorious defense is shown to exist (except in trespass actions), and (3) the petition to open has been promptly filed. In re Estate of McCauley, 478 Pa. 83, 385 A.2d 1324 (1978); Fox Chapel Sanitary Authority v. Abbott, 34 Pa. Commw. 637, 384 A.2d 1012 (1978).
In a trespass action petitioner is excused from establishing a meritorious defense if the equities are otherwise clear. Day v. Wilkie Buick Company, 239 Pa. Super. 71, 361 A.2d 823 (1976).
The Administrator based his decision to open the default judgment in part on reliance by Respondents on procedures established by Graterford officials for dealing with lawsuits by inmates against prison personnel, in which employees sued in that capacity were provided legal defense. Respondents believed that their interests were being represented as a matter of course. The Administrator found that the failure to respond to the complaint was reasonable under the circumstances and concluded that the failure to enter an appearance could be reasonably excused.
The reasonable belief that one is being represented by counsel and that everything has been done which is necessary to protect one's legal interest, can be sufficient to excuse a failure to enter an appearance prior to the entry of default judgment. Sprouse v. Kline-Styer-McCann, Post No. 7155 Veterans of Foreign Wars, 237 Pa. Super. 419, 352 A.2d 134 (1975).
The record includes affidavits of each of the Respondents attesting to the fact that they did not respond to the complaint because of their belief that the established procedure regarding lawsuits of this kind was in effect. The record also includes an affidavit by the Record Officer at Graterford outlining the procedure established for handling complaints and attesting to his ignorance of the instant action until after the entry of the default judgment. All seven of the Respondents reacted to the complaint in an identical manner. Respondents apparently believed they were being adequately represented. See Sprouse v. Kline-Styer-McCann, Post 7155 Veterans of Foreign Wars, 237 Pa. Super. 419, 352 A.2d 134 (1975).
On the matter of timely filing of the Petition to open, there is "no 'magic' number which will determine whether a petition [to open] is timely or not. Each case must rise or fall, on its own facts." Raymond J. Brusco Funeral Home v. Sicilia, 277 Pa. Super. 1157, 120, 419 A.2d 688, 690 (1980). The court must focus not only on the length of the delay in filing the petition to open, but also the reason for the delay. Quatrochi v. Gaiters, 251 Pa. Super. 115, 380 A.2d 404 (1977). Unexplained delays of as little as two and one-half weeks, McCoy v. Public Acceptance Corporation, 451 Pa. 495, 500, 305 A.2d 698, 700 (1973), and twenty-one days, B.C.Y. Equipment Leasing Associates v. Bukovich, 257 Pa. Super. 121, 126, 390 A.2d 276, 278 (1978), have been classified as "hardly prompt." Conversely, delays as long as twenty months, Queen City Electrical Supply Co. v. Soltis Electric Co., 258 Pa. Super. 305, 392 A.2d 806 (1978), aff'd 491 Pa. 354, 421 A.2d 174 (1980), and ten months, Raymond J. Brusco Funeral Home, have been found to be excusable under the circumstances, thus rendering the filing of the petition to open sufficiently prompt.
In the case at bar, it is clear from the record that 127 days elapsed between the time when the Department of Justice was notified of the default judgment by the officials at Graterford and the filing of the petition to open. The Administrator found that this delay was reasonably explained by the fact that counsel were attempting to negotiate an amicable removal of the default judgment. Such negotiations can constitute sufficient explanation for a delay in filing a petition to open. McGreevey v. Carter, 34 Bucks Co. L. Rep. 124 (C.P. Pa. 1980); Rice v. Reigh, 62 Pa. D. C.2d 175 (1973); See also Beam v. Carletti, 229 Pa. Super. 168, 323 A.2d 180 (1974). The only evidence on the record which supports the Administrator's determination, however, is the undenied assertion in Respondent's petition to open the default judgment that attempts were made to amicably open the judgment. There is no evidence as to the extent or duration of these negotiations.
Accordingly, we reverse the opinion and order and remand the record for the taking of additional testimony on this point, and we enter the following
ORDER
AND NOW, December 10, 1981, the Opinion and Order of the Administrator for Arbitration Panels for Health Care in the above-captioned matter, No. M79-0163, dated July 11, 1980, is hereby reversed and the record is remanded for further proceedings consistent with the opinion of this Court.
Judge WILLIAMS, JR. concurs in the result only.