decided: January 28, 1983.
TOWNSHIP OF CHESTER, APPELLANT
SANDRA STEUBER AND PHILIP STEUBER, APPELLEES
Appeal from the Order of the Court of Common Pleas of Delaware County in case of Sandra Steuber and Philip Steuber v. Township of Chester, No. 80-15675.
Joseph Goldberg, with him Robert R. Harris, Margolis, Edelstein & Scherlis, and Christopher F. Gorbey, for appellant.
Marc S. Weisberg, for appellees.
Judges Blatt, Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
[ 72 Pa. Commw. Page 135]
The Township of Chester appeals an order of the Court of Common Pleas of Delaware County which denied the township's petition to open a default judgment in trespass.
The relevant facts leading to the default judgment are as follows:
On October 24, 1980, Mr. and Mrs. Philip Steuber filed their complaint in trespass against the township
[ 72 Pa. Commw. Page 136]
for personal injuries that Mrs. Steuber had received as a result of a fall she sustained, allegedly caused by the township's negligent maintenance of certain property.*fn1
On November 3, 1980, the Delaware County sheriff served the complaint upon a township employee at the township's administration building. That employee, in turn, forwarded the complaint to the township administrator.*fn2
On December 31, 1980, after hearing nothing from the township, the Steubers served notice upon the township, by certified mail, that they intended to file a praecipe for a default judgment against the township after the expiration of the ten-day period required by Pa. R.C.P. No. 237.1.*fn3
[ 72 Pa. Commw. Page 137]
The township again failed to respond, and on February 19, 1981, the Steubers praeciped the common
[ 72 Pa. Commw. Page 138]
pleas court for a default judgment,*fn4 which the court granted on February 25, 1981.
On March 9, 1981, the township filed a petition to open the default judgment, which the common pleas court denied on February 17, 1982.
A petition to open a default judgment is addressed to the common pleas court's equitable powers and is a matter of judicial discretion. Hersch v. Clapper, 232 Pa. Superior Ct. 550, 335 A.2d 738 (1975). In a trespass action,*fn5 before a court may open a default judgment, it must find that: (1) the petition to open was promptly filed, and (2) the reason for the delay was reasonably explained or excused. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). DiNenno v. Great Atlantic & Pacific Tea Co., Inc., 245 Pa. Superior Ct. 498, 369 A.2d 738 (1976).
The common pleas court concluded that the township met the timeliness requirement because its petition to open was filed twelve days after the default was taken. Therefore, we need only focus on the question of whether the township has reasonably explained or excused its failure to file a timely answer. See DiNenno.
In making this determination, we are guided by the principle that the common pleas court decision will not be overturned on appeal absent an error of law or
[ 72 Pa. Commw. Page 139]
a clear, manifest abuse of discretion. Tice v. Nationwide Life Insurance Co., 253 Pa. Superior Ct. 118, 384 A.2d 1257.*fn6
The township seeks to justify its failure to answer the complaint by explaining that the township had been without a solicitor for a period of eighteen months, from October 1979 to January 1981, as a result of political wrangling among the township's board of supervisors. The township analogizes the inertia of its officials*fn7 to the situation in Campbell v. Heilman Homes, Inc., 233 Pa. Superior Ct. 366, 367, 335 A.2d 371, 373 (1975) (default judgment opened where employee inadvertently failed to relay complaint to the main office of his employer), to support its position that it is excused from the delay because the delay was "an unintentional omission to act."
[ 72 Pa. Commw. Page 140]
Furthermore, the township contends that it was not responsible for any subsequent delay once the newly appointed solicitor began his duties on January 5, 1980, citing Maruccio v. Houdaille Industries, Inc., 254 Pa. Superior Ct. 560, 386 A.2d 91 (1978) (school district's failure to answer complaint was reasonably excused by its belief that it was properly being represented by its solicitor). Moreover, the township also asserts that the six-week delay after January 5, 1980 was excusable because the solicitor, who had inherited a backlog of work, immediately forwarded the pleadings to the township's insurance carrier once he uncovered the complaint and notice to praecipe in late January, 1980.
The delay, however, considered in its entirety, was not the result of a clerical error by a supporting staff member, see Campbell. Nor was it merely an oversight, mistake or neglect of counsel. See, e.g., Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (1966); Moyer v. Americana Mobile Homes, Inc., 244 Pa. Superior Ct. 441, 368 A.2d 802 (1976); Alexander v. Jesray Construction Co., 237 Pa. Superior Ct. 99, 346 A.2d 566 (1977).
Rather, in appraising the township's responsibility in this delay, we find Bethlehem Apparatus Co., Inc. v. H.N. Crowder, Jr. Co., 242 Pa. Superior Ct. 451, 364 A.2d 358 (1976) controlling. There, our Superior Court held that an appellant failed to justify his failure to answer where:
[T]he appellant has failed to show that it acted in a manner which would reasonably result in the protection of its legal interests.
Id. at 456, 364 A.2d at 360.
Certainly the township's failure to hire legal counsel for eighteen months, the failure of its top officials
[ 72 Pa. Commw. Page 141]
to take necessary action, and the subsequent failure of the newly appointed township solicitor to respond to the Steubers' notice of their intention to seek a default judgment,*fn8 indicate that the township did not reasonably protect its legal interests.
Therefore, we cannot say that the trial court abused its discretion in denying the township's petition to open the default judgment. Accordingly, the decision of the common pleas court is affirmed.
Now, January 28, 1983, the order of the Court of Common Pleas of Delaware County, Civil Action, Law, at No. 80-15675, in trespass, dated February 17, 1982, is hereby affirmed.