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JOSEPH DINENNO v. GREAT ATLANTIC AND PACIFIC TEA CO. (11/22/76)

decided: November 22, 1976.

JOSEPH DINENNO
v.
THE GREAT ATLANTIC AND PACIFIC TEA CO., INC., AND RICHARD MCCARTHY, APPELLANTS, AND PEPSI COLA DISTRIBUTING CO., OF DELAWARE VALLEY, INC.



Appeal From the Order of the Court of Common Pleas of Chester County, Civil Action, Law, at No. 228 March Term, 1975. No. 681 October Term, 1976.

COUNSEL

Thomas O. Malcolm, West Chester, for appellants.

R. Barclay Surrick, Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Hoffman, J., files a dissenting opinion.

Author: Cercone

[ 245 Pa. Super. Page 499]

This is an appeal from the denial of a petition to open a default judgment. On March 24, 1975 Joseph DiNenno filed a complaint in trespass alleging slander and naming The Great Atlantic and Pacific Tea Company, Inc., Richard McCarthy, an A & P manager, and Pepsi Cola Distributing Co. of Delaware Valley, Inc. as defendants. On April 4, 1975 Pepsi was served. Counsel for Pepsi entered a timely appearance and filed an answer to the complaint. On April 7, 1975, A & P and McCarthy were served. On May 1, 1975, twenty-four days after service, counsel for DiNenno entered a default judgment against A & P and McCarthy for their failure to file an appearance for answer. Counsel for A & P and its manager, McCarthy, on May 16, 1975, filed a petition to open the default judgment. An answer to the petition to open was filed on June 1, 1975 and depositions were taken on June 19, 1975. Briefs were submitted and on December 11, 1975 the petition to open was denied. This appeal followed.

The law in this area is clear, a petition to open a default judgment is a matter of judicial discretion to be exercised when: (1) the petition to open has been

[ 245 Pa. Super. Page 500]

    promptly filed; (2) a meritorious defense can be shown;*fn1 and (3) the failure to file a timely answer can be reasonably explained or excused. Zellman v. Fickenscher, 452 Pa. 596, 598, 307 A.2d 837 (1973); McCoy v. Public Acceptance Corp., 451 Pa. 495, 498, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 356-7, 304 A.2d 143 (1973); Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970).

The first two factors need not detain us. Clearly the petition to open was promptly filed. This point is not disputed by either the lower court or DiNenno. Since this is a trespass action and since we feel the equities are clear it is not necessary that the question of a meritorious defense be considered. This leaves only the question of whether A & P and its manager, McCarthy, have reasonably explained or excused their failure to file a timely answer. To resolve this question we must look closely at the facts set forth in the various depositions which were taken in support of the petition to open.

The complaints were served at an A & P store in Delaware County on April 7, 1975. McCarthy, who managed the A & P store, was home at the time and therefore the complaints were received by the assistant manager. The assistant manager notified McCarthy by telephone and was instructed by McCarthy to send the complaints by courier to the Philadelphia Division Office of A & P and to then inform Robert Coyle, A & P's claims manager, of the receipt of the complaints. The complaints were received by A & P claims manager, Coyle, in the Philadelphia Office on April 9, 1975. Coyle later assured manager McCarthy that A & P's insurance carrier would

[ 245 Pa. Super. Page 501]

    provide for his defense and accordingly McCarthy never engaged personal counsel. When Coyle received the complaints he wrote to Arthur Broll, Jr. of Pepsi requesting that Pepsi answer the complaints on behalf of A & P and McCarthy. The basis for this request was Coyle's assumption that there existed an indemnity agreement between A & P and Pepsi. This assumption was not unreasonable since A & P had such agreements with several Pepsi franchises, however there was in fact no such agreement with the particular Pepsi franchise involved in this action. Coyle also wrote to A & P's liability insurance carrier, Aetna Life and Casualty Company (Aetna), advising of the lawsuit, and enclosing a copy of the complaints together with a copy of his letter to Pepsi. Coyle's letter was received by Kenneth C. Pierce of Aetna on April 14, 1975. Normally upon receipt of such papers Pierce of Aetna would promptly assign the matter to counsel, however since it appeared that Pepsi might be furnishing a defense Pierce of Aetna deviated from his normal procedure and instead had a file made up with the intention of contacting Pepsi. The file was made up and returned to Pierce's desk. Pierce was out of the office for several days and as a result the clerk who made up the file became concerned that the file should be acted upon. Accordingly the clerk removed the file from Pierce's desk and gave it to Barton Schwartz who was the claims representative of Aetna assigned the responsibility of handling the file. Normally when handling a personal injury case Schwartz of Aetna would call plaintiff's counsel to ...


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