holding that where employee sent notice to corporate headquarters, but notice was lost in U.S. mail, a legitimate reason was offered
How later courts described this case
- holding that where employee sent notice to corporate headquarters, but notice was lost in U.S. mail, a legitimate reason was offered
Written by the judges who cited it.
The opinion
MONTEMURO, Judge,
dissenting:
Because I am of the opinion that a reversal and remand is both unwarranted and unnecessary in light of the particular circumstances before us, I must dissent.
Appellant’s petition to open the default judgment alleged at paragraphs 2-4:
*340 2. Henry Hubbs, the manager of the local Jewel T Grocery store, advised defendant’s counsel on June 4, 1984 that he believes that he received the Complaint on or about April 24, 1984 and [forwarded it] within a few days to the district office in Blue Bell, Penna. (Affidavit to be supplied)
3. Ronald Tietgins, the district manager of Jewel T Grocery Store, advised defendant’s counsel that if he received the Complaint from the local store he would have forwarded it to the Special Services Department of Jewel Companies, Inc. within a few days of receipt. (Affidavit to be supplied)
4. Miria Gasparro, a representative of the Special Services Department, advised that Special Services had not received a copy of the Complaint as of June 4, 1984. (Affidavit to be supplied)
In responding to appellant’s petition, appellee, in effect, refuted the allegations contained in paragraphs 2-4. The court below subsequently denied appellant’s petition and, on appeal, the bulk of appellant’s argument is that the court below erred in ruling that appellant failed to offer a reasonable excuse for its default.
The majority sua sponte holds that the allegations of paragraphs 2-4, when considered in conjunction with appellee’s responsive refutation, triggered the procedures set forth in Pa. R.C.P. 209 and that the noncompliance with Rule 209 rendered the decision of the court below, with respect to appellant’s petition to open, “premature.”
It appears to me that the majority’s decision to reverse and remand this case is premised upon the supposition that not only are the allegations of paragraphs 2-4 “in dispute” but indeed that they are “material”. The rationale behind the majority’s decision therefore reveals itself as a concern for the appellant/petitioners right to assert clear and convincing proof of these “material” allegations. Any other interpretation of the majority’s disposition would seem to imply an unnecessary exaltation of procedural formality.
*341 The majority relies upon Instapak v. S. Weisbrod Lamp & Shade Co., Inc., 248 Pa.Super. 176 , 374 A.2d 1376 (1977), and Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129 , 403 A.2d 577 (1979).
In Instapak , this court reversed an order opening a default judgment. Therein, the petition to open the default judgment and the answer to that petition placed into dispute a “dispositive issue”: “[W]hether appellee’s counsel did or did not have a mistaken belief about the date by which an answer had to be filed____” Instapak , [248 Pa.Super.] at 182, 374 A.2d at 1379 . We concluded that the action taken by the lower court, solely on the basis of the allegations contained in the petition and the answer, was premature and we remanded the case for proceedings consistent with Rule 209.
In Shainline , this court reversed the denial of a petition to open a default judgment. We noted, “When a respondent effectively denies material allegations in a petition to open, the petitioner must support his position with clear and convincing proof. Johnson v. Leffring, 211 Pa.Super. 84 , 235 A.2d 435 (1967). The procedure for establishing such proof is provided by Pa.R.C.P. 209; [ ] it was not followed here.” Shainline, 266 Pa.Super. at 136 , 403 A.2d at 580 (emphasis supplied). Not only did we find in Shainline that the lower court acted prematurely in denying the petition to open, we went so far as to opine that, should petitioner prove the allegations contained in his petition following our remand, then the equities would favor opening the default judgment. In essence, we viewed petitioner’s disputed allegations, if proven, as constituting a reasonable excuse for petitioner’s default.
A careful reading of our decisions in both Instapak and Shainline discloses that, in each, the reversal and remand was necessitated by the pivotal nature of the allegations in dispute. Because I am unable to agree with the majority’s implicit premise, in the case sub judice, that the allegations contained in paragraph 2-4 are indeed “material” or “dis-positive,” I view Instapak and Shainline as inapposite. *342 Consequently, I am of the opinion that the sua sponte invocation of the spectre of Rule 209 is wholly unwarranted. Even accepting appellant’s allegations as supportable by clear and convincing evidence, I would nevertheless find that no reasonable excuse for appellant’s default has been thereby proffered. Accordingly, I consider a remand to be inefficacious.
Having so said, I would affirm the order of the court below on the thoughtful and well-reasoned opinion of the Honorable Ethan Allen Doty.