In order to make out a prima facie case, the Court must determine whether Delco filed its Petition to Open in a timely manner. "Whether there is undue delay is a matter largely within the discretion of the court to which a petition to open is submitted." Haggerty v. Fetner, 332 Pa. Super. 333, 481 A.2d 641, 648 (Pa. Super. Ct. 1984). "The crucial factor in determining whether a petition is timely is not the specific time which has elapsed but rather the reasonableness of the explanation given for the delay." First Seneca Bank & Trust Co. v. Laurel Mountain Dev. Corp., 506 Pa. 439, 485 A.2d 1086, 1088 (Pa. 1984).
The instant case presents a factual dispute regarding the timeliness of Delco's Petition to Open. Both Allied and Delco maintain that different time periods elapsed between Delco's notice that the Judgment was entered and the filing of its Petitions. Delco asserts that its first notice of either the Complaint or the Judgment was by letter-dated April 12, 1996 from Allied's counsel. Delco submits a copy of that letter in conjunction with its Petition to Open. See Def.'s Mot. Ex. A. Delco calculates that thirty four (34) days elapsed between its first notice of the Judgment and its allegedly prompt filing of its Petitions.
Allied argues that sixty one (61) days elapsed between Delco's first notice of the Judgment and the filing of its Petition. Allied points to the Docket in this case which states that copies of the Judgment were mailed. See Doc. No. 3. Allied also submits the affidavit of its attorney who vouches for the authenticity of the attached docket and avers that he contacted Janice Owens, a clerk in the Eastern District's Clerk's Office, who told him that she personally mailed a copy of the Judgment to Delco on March 14, 1996.
This controversy presents the Court with a "material" factual dispute because "a resolution of the factual 'dispute' concerning promptness [would] change the court's decision to deny the petition." Cross v. 50th Ward Community Ambulance Co., 365 Pa. Super. 74, 528 A.2d 1369, 1373 (Pa. Super. Ct. 1987). Given the absence of an established rule, and considering the disparity among different courts' disposition of the issue, the contested thirty days may prove dispositive. Compare Duque v. D'Angelis, 390 Pa. Super. 136, 568 A.2d 231, 233 (Pa. Super. Ct. 1990) (stating "this Court has found a time lapse of nine (9) months excessive in seeking a petition to open"); and Melvin v. Melvin, 580 A.2d at 819 (considering thirty four (34) days unreasonable delay "given the fact that petitioner knew of the order sought to be opened the day it was entered" and petitioner provided no explanation for this tardiness); with Citizens Nat'l Bank v. Bilowich Constr. Corp., 303 Pa. Super. 193, 449 A.2d 644, 647 (Pa. Super. Ct. 1982) (finding petition filed two (2) years and eleven (11) months after judgment entered promptly filed); and M.N.C. Corp. v. Mount Lebanon Med. Ctr., 510 Pa. 490, 509 A.2d 1256, 1258 (Pa. 1986) (finding petition was promptly filed one hundred and seven (107) days after judgment was entered), cert. denied, 484 U.S. 852, 108 S. Ct. 155 (1987).
The presence of a disputed factual issue material to the disposition of Delco's Petition to Open invokes Rule 209 and requires that the Court defer its decision concerning promptness until further discovery has taken place. Cross, 528 A.2d at 1373 (deciding that "Rule 209 procedure is inappropriate because there is no factual dispute concerning the 'reasonable excuse' prong of the three-part test and no material factual dispute with regard to the 'promptness' prong"). Indeed, the absence of timeliness would end the Court's inquiry and preclude granting Delco's Petition to Open. See Landis v. Richmond, 249 Pa. Super. 418, 378 A.2d 365, 366 (Pa. Super. Ct. 1977) (remarking that because petition was filed seventeen (17) months after entry of judgment without explanation, "whether or not a meritorious defense was set forth is thus irrelevant"). Cf. Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136, 140 n.2 (Pa. 1982) (noting "equitable considerations continue to be relevant . . . on the issue of timeliness").
C. RULE TO SHOW CAUSE AND STAYING PROCEEDINGS
Delco moves pursuant to Fed. R. Civ. P. 62(f) for a stay of the proceedings to execute on the judgment.
Rule 62(f) entitles the judgment debtor to a stay in the proceedings if state law would accord such relief. In the instant case, Pennsylvania law provides this remedy. "Where the Court finds that a petition filed under Rule 2959(b) states prima facie grounds for relief, it must issue a rule to show cause and it may grant a stay of further proceedings." 7 Goodrich Amram 2d § 2959(b):1 (citing Pa. R. Civ. P. 2959(e)).
Pursuant to Pennsylvania law, the Court, having found prima facie grounds for relief, may, within its discretion, stay the proceedings. Id. (citation omitted). Because Delco is entitled to a stay under state law, the Court will grant Delco's Rule 62(f) Motion.
An appropriate Order follows.
AND NOW, this 16th day of July, 1996, upon consideration of Defendant's Motion To Open And/Or Strike The Judgment Entered By Confession (Doc. No. 4), Defendant's Motion To Stay Proceedings To Enforce Judgment Entered By Confession (Doc. No. 5), and Plaintiff's Response thereto (Doc. No. 7), IT IS HEREBY ORDERED THAT:
1. Defendant's Motion To Strike The Judgment Entered By Confession is DENIED.
2. Delco shall file its depositions, if any, with this Court no later than August 12, 1996.