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Stabley v. The Great Atlantic & Pacific Tea Company

Superior Court of Pennsylvania

April 10, 2014

BERTHA STABLEY, Appellee
v.
THE GREAT ATLANTIC & PACIFIC TEA CO. AND PATHMARK STORES, INC., Appellants

Submitted November 12, 2013

Appeal from the Order Entered April 29, 2013. In the Court of Common Pleas of Delaware County, Civil Division at No.: 2012-7837. Burr, J.

Audrey J. Copeland, King of Prussia and Andrew S. Rosembloom, Cherry Hill, N.J., for appellants.

Ronald E. Freemas, Media, for appellee.

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J. OPINION BY WECHT, J. Gantman, J. concurs in the result.

OPINION

Page 716

WECHT, J.:

The Great Atlantic & Pacific Tea Company (" A& P" ) and Pathmark Stores, Inc. (" Pathmark" ) (collectively, " Appellants" ), appeal the trial court's order denying their petition to open the default judgment entered in favor of Bertha Stabley and against Appellants. We affirm.

The underlying claim arose when Stabley was struck by a column of shopping carts in a Pathmark parking lot, which were being pushed by a Pathmark employee. Trial Court Opinion (" T.C.O." ), 8/5/2013, at 1. The trial court set forth the materially undisputed procedural history as follows:

This case originated with the filing, on September 13, 2012, of [Stabley's] two[-]count Complaint against [Appellants] alleging their failure to properly

Page 717

train and supervise the referenced Pathmark employee, and to safeguard [Stabley] as a business invitee on their premises due to the employee's failure to maintain control of the carts, to keep a proper lookout, and to issue a warning to [Stabley] that he was pushing the carts in her direction. [Stabley] claimed that her injuries included a pelvis fracture, a sacral ala[] fracture, as well as lacerations on her left arm and contusions on her right arm. Returns of Service from the Delaware County Pennsylvania Sheriff's Office evince that [Pathmark] was personally served with a copy of the Complaint on September 25, 2012 at its facility in Boothwyn, Pennsylvania where [Stabley] had been injured, and that [A& P] was personally served with a copy of the Complaint on September 26, 2012 at its office in Harrisburg, Pennsylvania.
Neither of [Appellants] timely responded to the Complaint by mid-October, 2012, or within twenty days of service. It was not until October 26, 2012 that [Stabley's] attorney received a call from one of [Appellants'] legal representative[s] requesting an extension of thirty days from the date of that conversation in which to do so. [Stabley's attorney granted the requested extension.] When no responsive pleading was filed by [Appellants] by November 26, 2012, [Stabley's] counsel, nevertheless, notified [Appellants'] attorney by letter correspondence, mailed ten days later on December 6, 2012, that it was then fifty-one days past the date when their responsive pleading was due, but that he was allowing an additional . . . extension . . . until December 10, 2012, for the response to be filed. Expressed in this letter was the clear warning that: " It is not my desire to take a default judgment in this matter; however, unless I receive your response by Monday, December 10, 2012, I will be forced to file the appropriate praecipe with the Court."
Appellants' responsive pleading to the Complaint was not filed by December 10, 2012. However, [Stabley's] attorney, mindful of the demands of the holidays, waited until January 3, 2013, or 79 days after a response to the Complaint was required to be filed with the court, and 38 days following the November 26, 2012 time extension for doing so, to file and mail the requisite ten day Notice of the Intention to Take Default Judgment to defense counsel, noting therein that " [i]f no Answer to the Complaint is received in this office within ten (10) days of this date, the proper papers will be filed with the court." The certified mail receipt adducing [Appellants'] acceptance of this notice bears the date of January 7, 2013. However, when the responsive pleading went unfiled after ten days, [Stabley's] counsel, in an ongoing spirit of accommodation, waited an additional five days after January 13, 2013 to file a Praecipe to Enter Default Judgment against [Appellants]. Docket entries in the case for January 18, 2013 bear the notations: " Judgment Entered in Favor of the Plaintiff and Against the Defendant for Failure to File an Answer" ; " Copy of Ten Day Notice Affidavit" [; ] and that notice of the entry of the judgment had been sent on the same date.
Eleven days later, on January 29, 2013, [Appellants] submitted their Petition to Open Default Judgment claiming that they had filed it the day after receiving notice of the entry of judgment against them in the mail as opposed to ten days following the judgment's docketing with the court. Curiously, the date of [Appellants'] purported receipt of that document on January 28, 2013 is 57 days after one of the [Appellants'] attorneys had entered his appearance in this action

Page 718

for the defense on December 2, 2013, according to a document submitted by [Appellants] as Exhibit B to their Petition. Moreover, although there is no docket entry of this nature whatsoever in the record, counsel for [Appellants] represented in the certificate of service accompanying their Petition to Open Default Judgment that " a true and correct copy of the foregoing Answer to [Stabley's] Complaint with New Matter was electronically filed with the Court and served via U.S. First Class Mail upon [Stabley's] counsel" approximately eight days previously on January 21, 2013. [Stabley's] attorney denies ever having received a mailed copy of [Appellants'] Petition to Open Default Judgment from defense counsel, and avers that he discovered the existence of the Petition only when he filed a Certificate of Readiness with the Court on March 5, 2013.

T.C.O. at 1-4 (record citations omitted). As implied by the above, it is undisputed that, while no responsive pleading was ever filed of record, a proposed answer was provided as an exhibit to Appellants' Petition to Open Default Judgment.

On April 29, 2013, the trial court held a hearing concerning Appellants' petition to open. There, Appellants' counsel observed that, unlike a truly absent defendant, they had been in contact with Stabley's attorney repeatedly over the months in question, and had participated in settlement negotiations. ...


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