Summary
In Toplovich, appellants' counsel had negligently failed to mail an answer to the prothonotary in time to avoid a default judgment.
Summary of this case from Buxbaum v. PegueroOpinion
November 17, 1975.
March 29, 1976.
Equity — Practice — Judgment by default — Requirements to open judgment — Equitable considerations in opening judgment — Failure of counsel to give notice to opposing counsel of intention to enter judgment — Snap judgment — Equities in favor of opening judgment — Discretion of court in opening judgment.
1. In this equity action, judgment was entered against defendants some four days after an answer was due. The defendants filed an answer two days after the judgment was entered, and a week later filed a petition to open the judgment. It was Held that the court below erred in denying the defendants' petition to open the judgment.
2. A petition to open a judgment is a matter of judicial discretion, an appeal to the court's equitable powers, and is to be exercised only when the following three factors coalesce: (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear can be excused.
3. Equitable principles must be applied in determining the presence or absence of the requirements to open a judgment.
4. The defendants' excuse for delay in filing an answer was the careless failure of their counsel to sign the answer and forward it by mail to the prothonotary in time to have the answer filed within an agreed period of extension. It was Held in this case that the defendants' position should not be prejudiced by the failure of their attorney to observe professional standards.
5. It was Held that there would be greater prejudice to the defendants by affirming the lower court's order, and lesser prejudice to the plaintiffs by reversing the order and allowing the case to go to trial, and the lower court erred by not considering this aspect of equity.
6. Counsel has the obligation to notify opposing counsel of his intention to take a "snap" judgment.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 831, April T., 1975, from order of Court of Common Pleas of Warren County, May T., 1975, No. 20, in case of Paul E. Toplovich, Jr., and Patricia Ann Toplovich v. Walter C. Spitman and Patricia A. Spitman. Order reversed.
Equity.
Order entered dismissing petition by defendants to open judgment entered by default, opinion by WOLFE, P.J. Defendants appealed.
Michael E. Dunlavey, with him Orton Nygaard, for appellants.
Douglas Rozelle, for appellees.
SPAETH, J., concurred in the result.
JACOBS, J., dissented.
Argued November 17, 1975.
Appeal is taken to this Court from an Order of the lower court denying appellants' petition to open judgment. The record shows appellees' complaint in equity was filed on May 8, 1975 and service thereof made on May 9, 1975. On May 28, 1975, appellants' counsel asked for and received from counsel for appellees a one week's extension of time in order to answer the complaint. On May 29, 1975, appellants' counsel entered his appearance. By counsel's agreement, appellants' answer became due on June 6, 1975, a Friday. On the following Tuesday, June 10, 1975, appellees filed a praecipe for judgment, which judgment was entered on their behalf. The record reflects that appellants' answer was filed on June 12, 1975. On June 19, 1975, appellants filed a petition to open the judgment. This relief was denied by Order of July 9, 1975.
Preliminarily we deny appellants' motion before our Court to quash appellees' brief, finding that the record is sufficiently complete for our purposes.
This motion was filed with our Prothonotary on November 12, 1975; appellees answered on November 17, 1975.
"As we have had occasion to reiterate several times recently, a petition to open a judgment is a matter of judicial discretion, is an appeal to the court's equitable powers, and is to be exercised only when three factors coalesce:
(1) The petition has been promptly filed;
(2) A meritorious defense can be shown (footnote omitted); and
(3) The failure to appear can be excused." Balk v. Ford Motor Co., 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971). Our considerations as to the presence or absence of these requirements is tempered by our application of equitable principles, for we sit as would a chancellor in equity to determine how best justice can be served. Kanai v. Sowa, 109 Pa. Super. 426, 167 A. 429 (1933) and Oppenheimer v. Shapiro, 163 Pa. Super. 185, 60 A.2d 337 (1948). Our deliberations of an equitable nature will be addressed to a weighing of the prejudices inflicted upon the opposing parties by whatever inaction of counsel occasioned the right of the successful party to obtain judgment. See Borjes v. Wich, 171 Pa. Super. 505, 90 A.2d 288 (1952).
It is clear that appellants have met the first two requirements. Filing the petition to open judgment nine days following entry of judgment, and placing it for argument on July 9, 1975, is prompt action. Appellants have posited a meritorious defense by way of laches, fraud, mistake, and lack of clean hands. We view these as defenses which, if proved, could defeat appellees' claim for relief based upon an alleged breach of a clause in a deed (whereunder certain rights and entitlements were reserved to appellees) causing appellees to lose these rights.
We are particularly troubled by appellants' treatment of the third requirement, viz: excuse for the delay. Appellants' counsel proposes that it is solely due to his careless failure to sign the answer and forward it timely by mail to the Warren County Prothonotary that appellants' answer was not filed within the agreed period of extension. We are cognizant of the added burdens upon attorneys who practice some distance from the site where their papers must be filed, but it must be their duty to compensate for this when dealing with the mail. It is evading the point now to argue that the responsive pleading was in the mail on June 10, 1975, the day on which appellees obtained judgment, and to claim that action was therefore prior to the entry of judgment. Appellants' counsel must stand reproach for careless handling of his clients' interests. But we, sitting as a chancellor in order to determine relative equities, must consider the interests of the parties involved. Appellants' position should not be prejudiced by attorney carelessness to observe professional standards. In this balance must also be considered the right of appellees to obtain judgment. However appellees' counsel failed to notify opposing counsel of his intention to take judgment, which is an oft-stated obligation when judgment is to be "snapped." Therefore, on this balance, we view greater prejudice obtaining to the parties appellant by affirming the lower court's Order, and lesser prejudice to the parties appellee by reversing the Order and allowing the case to go to trial. We hold that the lower court erred by not addressing itself to this aspect of equity. See Balk and Oppenheimer, supra, and also Johnson v. Yellow Cab Co., 226 Pa. Super. 270, 307 A.2d 423 (1973). So holding, we must therefore conclude, as in Borjes, supra, that mistake or oversight by counsel which enables a default judgment to be entered and results in prejudice to parties' rights to raise a defense, which prejudice is out of proportion and greater than that caused by opening the judgment, this imbalance coupled with a judgment entered swiftly (within two working days) without notice to counsel of record, constitutes a basis for opening the judgment.
Order reversed.
SPAETH, J., concurs in the result.
JACOBS, J., dissents.