Posted By Cliff Tuttle | February 25, 2010
This Post first appeared on February 9, 2009. PLBT is bringing back some of the best posts of the past 18 years to celebrate our new look. This post, on how to open a judgment, is worth repeating.
You are served by the sheriff with a civil complaint. The second page informs you that you have twenty days to file a responsive pleading or default judgment may be entered against you. But you don’t. You forgot.
A notice from the Plaintiff’s attorney come in the mail. You have failed to file an answer in the alloted 20 days, it states, so you must file a responsive pleading within ten days or default judgment may be entered against you.
Ten days passes and you still haven’t filed anything. You’ve been busy.
Then, you receive notice of default judgment from the Prothonotary (or Department of Court Records in Allegheny County). Damn, too late!
Get to a lawyer right away. He/she may be able to save you from your procrastinating ways by promptly filing a petition to open the judgment, together with that answer you didn’t get around to filing.
Under Pennsylvania Rule of Civil Procedure 237.3, a court is required to open judgment if you follow a few simple steps. (1) File the petition to open the judgment; (2) file a verified answer at the same time that (3) asserts a meritorious defense.
It must be an answer, not preliminary objections. If you want to file PO’s, you must satisfy the tests developed by case law. See the official notes and comments. As noted in a Lycoming County Common Pleas case, Grisewood v. Grindmaster, a Commonwealth Court case (Peters Twp. San. Auth. v. American Home Land Dev.) holding that preliminary objections could satisfy the requirements of Rule 237.3 was made obsolete by the revision of the Explanatory Comment in 2001.
Under rules developed under common law, it was also required to state a reasonable defense for the late-filing or non-filing. However, in the case ofAttix v. Lehman, the Superior Court held that this was not required under Rule 237.3.
The Superior Court also held in Boatin v. Miller that failure to comply with unrelated local rules did not affect the operation of Rule 237.3, providing all of its requirements were met.
AS you may have noticed, Rule 237.3 can also applied to vacate judgments of non pros. However, as illustrated by the case of Kruis v. McKenna, there can be complications as other Rules come into play.
The foregoing is intended to be only a general introduction to the subject of opening judgments. If you are a non-lawyer and have recently (less than ten days recently) had a default judgment entered against you, do NOT attempt to prepare your own petition to open. Run, don’t walk, to a qualified lawyer. There isn’t a third chance.
CLT| Post a Comment