Longenecker, D. v. Neff, C. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DALE K. LONGENECKER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CECIL H. NEFF, III, J&S AUTO :
SALES, J&S GENERAL AUTO REPAIR, :
J&S AUTO REPAIR, AND L. BENJAMIN : No. 1574 MDA 2020
WENGER :
:
:
APPEAL OF: CECIL H. NEFF, III AND :
J&S AUTO SALES :
Appeal from the Order Entered November 13, 2020
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-20-04022
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 28, 2021
Cecil H. Neff, III (Neff)1 appeals from the order of the Court of Common
Pleas of Lancaster County (trial court) denying his petition to open the default
judgment entered against him in this action filed by Dale K. Longenecker
(Longenecker). Longenecker seeks to recover money he alleges was
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* Retired Senior Judge assigned to the Superior Court.
1 Although J&S General Auto Repair also appealed the trial court’s order, the
default judgment was entered against Neff only. (See Trial Court Opinion,
2/08/21, at 1 n.1; Neff’s Brief, at 5 n.3).
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wrongfully obtained from him by Neff in connection with Neff’s service to his
vehicle. We affirm.
I.
A.
We take the following background and procedural history from the
certified record. Neff owns and operates J&S General Auto Repair.
Longenecker owns a 2011 Toyota Camry and was 79 years old during the
relevant time period. In January 2020, Longenecker brought his vehicle to
Neff’s automobile repair shop for a routine state inspection. He did not believe
his vehicle was in need of any repairs at that time. However, Neff informed
him that the engine and transmission needed to be replaced and charged
$31,502.22 for the repair. Longenecker paid that amount in eight checks to
gain release of his car. He claims that Neff never performed these extensive
repairs to his vehicle and that the costs exceeded the then-average price of a
brand new Toyota Camry.
On June 12, 2020, Longenecker filed a complaint against Neff asserting
claims of fraud, negligent misrepresentation, rescission of contract,
negligence, violations of the Unfair Trade Practices and Consumer Protection
Law (UTPCPL),2 conversion, unjust enrichment and civil conspiracy. An
employee at Neff’s automobile repair business accepted service of the
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2 See 73 P.S. §§ 201-1.- 201-10.
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complaint on July 1, 2020. The complaint was prefaced with a Notice to
Defend advising Neff of the requirement to file a responsive pleading within
20 days and that a default judgment could be entered against him for failure
to do so. See Pa.R.C.P. 1018.1. Neff did not respond to the complaint.
B.
On August 4, 2020, Longenecker filed a praecipe for entry of default
judgment against Neff for failure to file a responsive pleading3 and judgment
was entered that day. Neff was provided with notice of entry of the default
judgment via first-class mail on August 5, 2020. Longenecker then filed a
motion to assess damages under the UTPCPL, including treble damages, costs
and attorneys’ fees.
Neff filed a petition to open the default judgment on September 2, 2020.
The trial court, after considering multiple submissions by the parties regarding
their respective positions, entered its order denying Neff’s petition to open the
default judgment on November 13, 2020. The court concluded that Neff did
not timely file the petition to open nor did he provide a legitimate reason for
failing to answer the complaint. (See Trial Ct. Op., at 3). Neff timely
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3 Longenecker averred in the praecipe that written notice of his intent to file
for entry of default judgment was mailed to Neff on July 23, 2020, which was
at least ten days prior to the filing in accordance with our rules of Civil
Procedure. See Pa.R.C.P. 237.1(a)(2)(ii).
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appealed. He and the trial court complied with Rule 1925. See Pa.R.A.P.
1925(a)-(b).4
II.
Neff contends that he timely filed the petition to open the default
judgment and that he provided a justifiable excuse for not answering the
complaint.5 With regard to timeliness, Neff acknowledges that the notice of
entry of the default judgment was mailed to him on August 5, 2020, and that
he received it on or about August 7, 2020. Neff asserts that he encountered
difficulty in retaining counsel because of the COVID-19 pandemic. Neff claims
that he filed the petition as soon as he was able to engage counsel, who
submitted it within one month of his receipt of the notice. Neff offers as his
explanation for the delay in answering the complaint the difficult
circumstances of the COVID-19 pandemic because attorney availability was
limited. Neff maintains that he consulted or attempted to consult with at least
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4 “It is well settled that a petition to open a default judgment is an appeal to
the equitable powers of the court, and absent an error of law or a clear,
manifest abuse of discretion, it will not be disturbed on appeal.” Myers v.
Wells Fargo Bank, N.A., 986 A.2d 171, 175 (Pa. Super. 2009) (citation
omitted).
5 Neff also claims that the court abused its discretion in finding that he failed
to provide a meritorious defense to the allegations in the complaint. (See
Neff’s Brief, at 17). However, the court plainly recognized that Neff did raise
a meritorious defense in averring that he performed the paid-for repairs with
Longenecker’s consent. (See Trial Ct. Op., at 3, 5). This issue is, therefore,
not in dispute.
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ten attorneys regarding a defense to Longenecker’s complaint and a possible
bankruptcy action, and that he was initially unable to find counsel willing to
represent him.
Pennsylvania Rule of Civil Procedure 237.3 governs the opening of
default judgments and provides that a court must open the judgment where
a party files a petition to open within ten days of its entry. See Pa.R.C.P.
237.3(b)(1). However, when the party fails to file a petition within ten days,
he must meet the common-law standard for opening a default judgment. See
id. at Explanatory Comment, Illustration 5. This standard provides that a
default judgment may be opened if the moving party has 1) promptly filed a
petition to open the default judgment; 2) provided a reasonable excuse or
explanation for failing to file a responsive pleading; and 3) pleaded a
meritorious defense to the allegations contained in the complaint. See
Myers, supra at 175. The defendant must establish all three of these criteria
in order for the trial court to open a default judgment based on the equities
of the case. See id.“The timeliness of a petition to open a judgment is measured from the
date that notice of the entry of the default judgment is received.” Digital
Commc'ns Warehouse, Inc. v. Allen Investments, LLC, 223 A.3d 278,
285 (Pa. Super. 2019) (citation omitted). The law does not establish a specific
time frame within which a petition to open a judgment must be filed to qualify
as timely. See id. Instead, a court must consider the length of time between
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notice of the entry of the default judgment and the reason for the delay. See
id. In cases where appellate courts have found a prompt and timely filing of
the petition to open a default judgment, the period of delay has typically been
less than one month. See id.With regard to the second prong, “whether an excuse is legitimate is not
easily answered and depends upon the specific circumstances of the case.”
US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (citation
omitted). Our Court has addressed the question of legitimate excuse in the
context of the party’s explanation for failure to respond to the original
complaint in a timely manner. See id.Instantly, in concluding Neff did not promptly file the petition to open or
provide a reasonable excuse for failing to file a response to the complaint, the
trial court stated:
[Neff] was provided notice of entry of judgment via first
class mail on August 5,2020. [He] did not file his petition to enter
default judgment until September 2, 2020 ─ four weeks after
receiving notice. [Neff] admits being aware of the complaint
against him and aware of the default, but asserts he was unable
to obtain legal counsel until September 2, 2020 and was therefore
unable to file a petition sooner. [Neff] had adequate time from
receiving notice of the default judgment to hire legal counsel to
file a prompt petition to open the default judgment. Alternatively,
[he] could have filed a petition himself. A four (4) week delay
between notice of the entry of default judgment and filing of the
petition to open was not prompt.
* * *
[Neff] states that in the twenty (20) days after the
complaint was filed, he contacted at least six (6) attorneys to
schedule a consultation regarding a possible bankruptcy matter
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and the present litigation.6 [Neff] argues that he was unable to
secure representation during that time due to COVID-19 delays in
scheduling consultations, and the unwillingness of the contacted
attorneys to take on his case or unavailability of other attorneys
that he contacted. [Neff’s] failure to file a response to the
complaint because he could not hire an attorney is not a justifiable
excuse. [Neff] could have filed a response as an unrepresented
party pending retaining counsel. Therefore [he] did not present a
justifiable excuse to this court.
(Trial Ct. Op., at 4-5) (record citations omitted).
We find no abuse of discretion in this regard. Neff filed the petition to
open 28 days after the default was entered and he admits to receiving notice
well before the 20-day response period expired. While circumstances
surrounding the COVID-19 pandemic may have contributed to his difficulty in
finding representation, it does not explain why he did not take any action
himself. Furthermore, Neff’s argument indicates that he tied this litigation to
a separate bankruptcy matter and that certain attorneys were unwilling to
represent him. In sum, we agree with the trial court that Neff did not promptly
file the petition to open, nor did he establish an excusable reason for failing
to respond to the complaint.
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6 Neff’s brief puts the number of lawyers at ten. (See Neff’s Brief, at 20).
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Order affirmed.
Judge Kunselman Joins the memorandum.
Judge Stabile Notes Dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2021
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