529 A.2d 22 | Pa. Super. Ct. | 1987
This is an appeal from the lower court’s order denying appellant’s petition to open a default judgment. Appellants contend that the lower court erred in refusing to open the judgment because they offered a reasonable excuse for their failure to answer the complaint. We disagree and, accordingly, affirm the lower court’s order.
In January, 1985, appellee was injured when she slipped and fell on appellants’ property. Appellee filed a civil complaint, which was served on appellants on June 4, 1985. Appellants’ attorney entered an appearance on July 25, 1985. No answer to the complaint was filed. On January 3, 1986, appellee filed a Notice of Intent to Enter Default Judgment, see Pa.R.Civ.P. 237.1, informing appellants that a default judgment would be entered against them unless they responded to the complaint within ten days. Appellants still failed to answer the complaint, and a default judgment was entered. Appellants filed a petition to open the default judgment, which was denied, and this appeal followed.
Our courts have held that the power to open a default judgment entered as the result of a mistake or oversight by counsel may be exercised when a reasonable excuse has been offered. See Bildstein v. McGlinn, supra, 320 Pa.Superior Ct. at 423, 467 A.2d at 605; Ecumenical Enterprises, Inc. v. Nadco Constr., Inc., 253 Pa.Superior Ct. 386, 393, 385 A.2d 392, 394 (1978); Alexander v. Jesray Constr. Co., 237 Pa.Superior Ct. 99, 103, 346 A.2d 566, 568 (1975). In Shainline v. Alberti Builders, Inc., 266 Pa.Superior Ct. 129, 403 A.2d 577 (1979) this Court distinguished between mistakes by counsel that are excusable and those that are not. Relying on prior caselaw of this Commonwealth, we noted that an attorney’s dilatoriness, failure to act with knowledge of the implications, or deliberate decision not to defend are inadequate reasons for his or her failure to answer a complaint. Id., 266 Pa.Superior Ct. at 138, 403 A.2d at 581. We also stated that a clerical over
Here, the lower court held that appellants had satisfied two of the three requirements for opening a default judgment. The court held that the petition to open was timely and that a meritorious defense had been presented.
We agree with the court below that this excuse was not reasonable. Rule 1047 had been rescinded for nearly one year when the complaint was served upon appellants. In addition, the complaint contained the required notice on the front page that a written answer was required within twenty days. Moreover, appellants’ attorney admitted receiving a letter from appellee’s attorney dated July 29, 1985, which stated the following:
*164 Also, if you will be representing [appellants], I trust that you will proceed to file your Answer to our Complaint as soon as possible, as per the applicable Rules of Civil Procedure. If you require an extension of time, please advise.
. We do not rule on the correctness of these conclusions because of our disposition of this case.
. We note another reason why appellants’ attorney’s mistaken reliance on a prior rule of civil procedure was not a reasonable excuse for failing to answer the complaint. Under former Rule 1045(a), “[a] party who fails to file a responsive pleading shall be deemed to admit all averments relating to ... the ownership, possession or control of the property or instrumentality involved.” Pa.R.Civ.P. 1045(a) (rescinded effective July 1, 1984). Here, the defense that counsel intended to raise for appellants was that the property on which appellee claimed to have been injured was not under appellants’ control. Memorandum of Law in Support of Petition to Open Default Judgment. Thus, an entry of appearance without an answer would not have protected appellants’ interests because control over the property would have been deemed admitted.