Markh, B. v. Kotikovsky, M.

J-A17034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BORIS MARKH AND ALLA MARKH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellees
v.
MIKHAIL AND IRINA KOTIKOVSKY
Appellants No. 283 EDA 2015
Appeal from the Order November 24, 2014
In the Court of Common Pleas of Pike County
Civil Division at No(s): 1864-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 07, 2015
Appellants, Mikhail and Irina Kotikovsky, appeal from the order
entered in the Pike County Court of Common Pleas, which denied Appellants’
petition to open a default judgment. We affirm.
The relevant facts and procedural history of this case are as follows.
On January 1, 2013, Appellees, Boris Markh and Alla Markh, were guests at
Appellants’ vacation home in Dingman’s Ferry. Mr. Markh allegedly
sustained injuries after he slipped and fell on icy stairs located on the
property. Appellees filed a complaint in negligence on November 22, 2013,
and served the complaint on Appellants on November 26, 2013. Appellants
did not file a responsive pleading. On February 11, 2014, Appellees sent
Appellants a ten-day notice of intent to file a praecipe for entry of default
judgment, per Pa.R.C.P. 237.1. Twenty-one days later, on March 4, 2014,
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Appellees filed a praecipe to enter default judgment, and the prothonotary
entered judgment by default against Appellants.
Counsel for Appellants entered an appearance on May 2, 2014. On
May 13, 2014, Appellants filed a petition to open the default judgment,
along with an answer and new matter to the complaint. Following a hearing,
the trial court denied the petition on November 25, 2014. Appellants filed a
timely notice of appeal on December 19, 2014. The court ordered
Appellants to file a concise statement of errors complained of on appeal, per
Pa.R.A.P. 1925(b), and Appellants timely complied.
Appellants raise the following issues for our review:
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
TO OPEN DEFAULT JUDGMENT PURSUANT TO PA.R.CIV.P.
237.3 AND ESTABLISHED CASELAW WHERE THE
EVIDENCE ESTABLISHED THAT [APPELLANTS] MET THE
FOLLOWING THREE REQUIREMENTS: (1) A PROMPT
FILING OF A PETITION TO OPEN THE DEFAULT JUDGMENT;
(2) A MERITORIOUS DEFENSE; AND (3) A REASONABLE
EXCUSE OR EXPLANATION FOR THEIR FAILURE TO FILE A
RESPONSIVE PLEADING?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
TO OPEN DEFAULT JUDGMENT BECAUSE, IN REACHING
ITS CONCLUSION THAT [APPELLANTS’] REASONS FOR
DELAY DID NOT EXCUSE THE DELAY AND THAT THE
PETITION WAS NOT FILED PROMPTLY, THE COURT
EXERCISED JUDGMENT WHICH IS MANIFESTLY
UNREASONABLE UNDER THE CIRCUMSTANCES?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
TO OPEN DEFAULT JUDGMENT BECAUSE THE COURT’S
ANALYSIS REGARDING THE PROMPTNESS REQUIREMENT
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IS AT ODDS WITH MODERN JURISPRUDENCE AND THE
TYPICAL TIMELINE ASSOCIATED WITH LITIGATION OF
CIVIL MATTERS IN THE STATE COURT SYSTEM FROM
INCEPTION THROUGH TRIAL?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
TO OPEN DEFAULT JUDGMENT WHERE EQUITY CLEARLY
FAVORED OPENING THE JUDGMENT?
WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
TO OPEN DEFAULT JUDGMENT WHERE [APPELLEES] DID
NOT SUFFER ANY PREJUDICE BASED ON THE DELAY
BETWEEN THE ENTRY OF DEFAULT JUDGMENT AND THE
FILING OF THE PETITION TO OPEN DEFAULT JUDGMENT?
(Appellant’s Brief at 4-5).
In their issues combined, Appellants argue they raised several
meritorious defenses in their answer and new matter. Appellants concede
proper service of the complaint and filings related to entry of the default
judgment. Nevertheless, Appellants contend their delay was excusable
because they thought their insurance company, which had been in contact
with Appellees’ counsel following the incident, was handling the matter.
Appellants claim Appellees’ counsel failed to provide a copy of the complaint
to the insurance company or to advise it that Appellees had filed a
complaint. Appellants assert Appellees’ counsel knew before the complaint
was filed that Appellants’ insurance company intended to defend the claims.
Appellants “admit that there is no precedent under Pennsylvania law which
would allow for a delay [of] roughly 70 days between the date of a default
judgment being taken and a petition to open a default judgment being filed.”
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(Appellant’s Brief at 16). Appellants assert, however, that current precedent
“is at odds with modern case realities,” given the typically long period of
pretrial activity in civil cases. Id. at 17. Appellants reject a “bright line
test” for promptness and emphasize that Appellees failed to allege any
prejudice caused by Appellants’ delay in filing a responsive pleading.
Appellants conclude they satisfied the three-prong standard to justify
opening the default judgment. We disagree.
The decision to grant or deny a petition to open a default judgment is
a matter of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90,
477 A.2d 471 (1984). A petition to open a default judgment is an appeal to
the court’s equitable powers, and absent an error of law or an abuse of
discretion, this Court will not disturb that decision on appeal. Reid v.
Boohar, 856 A.2d 156 (Pa.Super. 2004).
Pennsylvania Rule of Civil Procedure 237.3(b) provides: “If the petition
[challenging the default judgment] is filed within ten days after the entry of
the judgment on the docket, the court shall open the judgment if the
proposed complaint or answer states a meritorious cause of action or
defense.” Pa.R.C.P. 237.3(b). Where a petition to open a default judgment
is not filed within ten (10) days of entry of the default judgment, the movant
must “(1) promptly file a petition to open judgment, (2) provide a
meritorious defense; and (3) offer a legitimate excuse for the delay in filing
a timely answer.” Reid, supra at 160. To succeed, the petitioner must
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meet all three requirements. US Bank N.A. v. Mallory, 982 A.2d 986, 995
(Pa.Super. 2009); Duckson v. Wee Wheelers Inc., 620 A.2d 1206(Pa.Super. 1993). In other words, if the petitioner fails to meet even one
requirement for opening judgment, the court can deny relief without even
considering arguments made with regard to the two other requirements. Id.
at 1209. If the petitioner has made some showing as to all three prongs of
the test, then the court is entitled to consider each point in light of all the
“circumstances and equities of the case.” Id. Courts “must determine
whether there are equitable considerations which require that a defendant,
against whom a default judgment has been entered, receive an opportunity
to have the case decided on the merits.” Id. at 1208.
With respect to the first requirement that the petitioner promptly file a
petition to open, this Court does not “employ a bright line test”; courts focus
“on two factors: (1) the length of the delay between discovery of the entry
of the default judgment and filing the petition to open judgment, and (2) the
reason for the delay.” Flynn v. America West Airlines, 742 A.2d 695, 698
(Pa.Super. 1999). Given an acceptable reason for the delay, one month or
less between the entry of the default judgment and the filing a petition for
relief from the judgment typically meets the time requirement for a prompt
filing of a petition for relief. Myers v. Wells Fargo Bank, N.A., 986 A.2d
171, 176 (Pa.Super. 2009). See also US Bank N.A., supra (comparing
cases and rejecting eighty-two day interval between default judgment and
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petition for relief as tardy).
With respect to the second requirement of a justifiable excuse, courts
look to the specific circumstances of the case to determine whether the
petitioner offered a legitimate explanation for the delay that caused entry of
a default judgment. Id. “While some mistakes will be excused, …mere
carelessness will not be….” Bahr v. Pasky, 439 A.2d 174, 177 (Pa.Super.
1981).
Generally speaking, a default attributable to a defendant’s
justifiable belief that his legal interests are being protected
by his insurance company is excusable. However, if the
insured fails to inquire of the insurer as to the status of the
case after events have occurred which should have
reasonably alerted the insured to a possible problem, the
insured is precluded from asserting a justifiable belief
that its interests were being protected.
Duckson, supra at 1210 (citations omitted) (emphasis in original). Finally,
as to asserting a meritorious defense, the petitioner must aver facts that if
proved at trial would justify relief. See id.
Instantly, the trial court reasoned as follows:
[Appellants] allege numerous reasons for the delay in filing
their answer and petition: [Appellants’] lack of legal
expertise, [Appellants’] belief the insurance company was
handling the case, the mistaken belief the insurance
company was also receiving the case related
correspondence and no action was required on
[Appellants’] behalf, and the failure of [Appellees’]
attorney to advise the insurance company of the
developments within the case. While [Appellants] have
advanced a myriad of reasons for the delay, the court does
not agree that the reasons provided excuse the prolonged
delay. The default judgment was entered on March 4,
2014; Entry of Appearance on May 2, 2014; and the
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petition [to open default judgment] on May 13, [2014,]
approximately 70 days, or 10 weeks, after the filing of the
default judgment. After considering the length of time and
the reasons for the delay, the court rejects the assertion
that [Appellants] have promptly filed their petition to open
default judgment. Therefore, because [Appellants] have
failed under the first prong, which requires a promptly filed
petition, the court will not exercise its discretion to open
default judgment.
(Order, filed 11/25/14). The court added the following in its Rule 1925(a)
opinion: “[E]ven if a seventy (70) day delay were considered prompt, the
excuses proffered and the evidence presented by [Appellants] failed to
convince the [c]ourt that a granting of the Petition is warranted.” (Trial
Court Opinion, filed January 29, 2015, at 3). The record supports the court’s
analysis. Appellants acknowledge proper service of the complaint, the Rule
237.1 ten-day notice of Appellees’ intent to seek a default judgment, and
the praecipe to enter default judgment. The language of the ten-day notice
complied with Pa.R.C.P. 237.5, informing Appellants that (1) they failed to
enter an appearance personally or through an attorney; (2) they failed to file
in writing with the court their defenses or objections to the claims in
Appellees’ complaint; (3) unless Appellants acted within ten days, a
judgment might be entered against them without a hearing and they may
lose their property or other rights; and (4) they should take the notice to a
lawyer at once. See Pa.R.C.P. 237.5. Even after Appellants received that
notice, they failed to contact their insurance company or an attorney or take
any other action. By that point, Appellants knew or should have known that
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their insurance company was not handling the matter or protecting their
interests. Appellants then received notice of entry of the default judgment.
Nevertheless, Appellants failed to file a petition to open the default judgment
for over two months after default judgment was entered and almost six
months after the complaint was filed and served.1 Therefore, the trial court
acted within its discretion when it denied Appellants’ petition on the grounds
that it was not promptly filed and Appellants’ misplaced reliance on their
insurance company was not a legitimate excuse for their protracted delay in
responding to Appellees’ complaint.2 See US Bank N.A., supra; Reid,
supra; Duckson, supra. Accordingly, we affirm.
Order affirmed.
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1
At the October 28, 2014 petition to open hearing, Appellant Mr.
Kotikovsky’s testimony on this issue was inconsistent. He initially stated he
took no action when he received the complaint, Rule 237.1 notice, or
praecipe to enter default judgment. On cross-examination, however,
Appellant Mr. Kotikovsky alternatively testified that he could not remember
what he did, and that he did in fact contact the insurance company at some
point. Appellants’ insurance claims representative testified that he received
no documents from Appellants or information that Appellants had been
served with any documents.
2
Appellants’ reliance on the outcome in Duckson, supra, is inappropriate
because in Duckson, the defendant filed a petition to open the default
judgment one day after the default judgment had been entered. See id.Moreover, Appellants’ dissatisfaction with current precedent does not justify
this Court’s deviation from it.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2015
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