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ALLEN R. DAVIS AND BRENDA DAVIS v. COMMONWEALTH PENNSYLVANIA (12/21/89)

decided: December 21, 1989.

ALLEN R. DAVIS AND BRENDA DAVIS, APPELLANTS,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Common Pleas Court, Philadelphia County; Honorable Charles P. Mirarchi, Jr., Judge.

COUNSEL

David F. Binder, Rayne, McCarty, Binder, Ross & Mundy, Philadelphia, for appellants.

Celeste Y. Lamb and Allan Ells, Deputy Atty. Gen., Philadelphia, for appellee.

Crumlish, Jr., President Judge, and Craig, Barry, Colins, Palladino, McGinley and Smith, JJ. Crumlish, Jr., President Judge, dissenting. Palladino, Judge, dissenting.

Author: Craig

[ 130 Pa. Commw. Page 289]

Mr. and Mrs. Allen R. Davis appeal from orders of the Court of Common Pleas of Philadelphia County, denying their motion to strike the Pennsylvania Liquor Control Board's (LCB) answer and new matter as untimely under Pa.R.C.P. No. 1026(a), and granting the LCB's motion to dismiss the suit because of the Davises' failure to comply with the six-month notice requirement under subsection (a)(1) of section 5522 of the Judicial Code, 42 Pa.C.S. § 5522(a)(1).

On February 15, 1986, Allen Davis was involved in an automobile accident. The driver of another car was killed and Davis became a paraplegic. On March 26, 1987, the Davises filed a complaint against the LCB for damages resulting from the accident, alleging that a state store sold him liquor even though he had been "visibly intoxicated." Subsection (b)(7) of section 8522 of the Judicial Code, 42 Pa.C.S. § 8522(b)(7), places liability on the LCB for selling liquor to any person visibly intoxicated.

On April 8, 1987, the LCB wrote to the Davises requesting an extension of time in which to file its answer to the complaint, beyond the twenty-day requirement of Pa.R.C.P. No. 1026. The request stated that the LCB would assume the Davises had granted the extension, unless they notified the LCB to the contrary.*fn1 The Davises did not object to the time extension.

On April 22, 1988, both parties agreed to a three-month continuance as to trial date. On April 27, 1988, the LCB filed an answer and new matter claiming that the case should be barred because the Davises failed to comply with the six-month notice requirement. The Davises filed a

[ 130 Pa. Commw. Page 290]

    motion to strike the LCB's answer and new matter on the ground that the answer and new matter had been untimely filed. Judge Lehrer of the Court of Common Pleas of Philadelphia county dismissed that motion.

The Davises filed a reply to new matter stating that, under 42 Pa.C.S. § 5522(a)(2), a reasonable excuse could be shown for not giving notice of their claim within six months.

On September 26, 1988, the common pleas court conducted an evidentiary hearing regarding the Davises' noncompliance with the notice requirement. The court concluded that the Davises had not shown a reasonable excuse for failing to comply and therefore dismissed their suit.

The questions we must consider are: (1) whether the trial court erred in denying the Davises' motion to strike the LCB's untimely filed answer and new matter; and (2) whether the trial court erred in granting the LCB's motion to dismiss the Davises' complaint for failing to comply with the notice requirements of 42 Pa.C.S. § 5522(a)(1).

I.

In determining whether an answer and new matter is untimely, the trial court must adjust the relative equities in light of any agreement between the parties and the procedural posture of the case. Trial courts have broad discretionary power in considering procedural issues. Allison v. Merris, 342 Pa. Superior Ct. 571, 493 A.2d 738 (1985). A trial court has discretionary power to waive noncompliance with procedural rules which govern the timing of pleadings. Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971).

Before the LCB filed an answer, the Davises took no action to preclude the LCB from filing an untimely answer, nor did they seek a default judgment. Pa.R.C.P. No. 1037(b) does not allow opposing parties to sit idly and then move to strike an untimely answer. Rather, a party must take affirmative action to secure a judgment by

[ 130 Pa. Commw. Page 291]

    default. Colonial School District v. Romano's School Bus Service, 118 Pa. Commonwealth ...


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