civil procedure - default judgment - petition to open timeliness

Wilmington Savings Fund Society v. Bogo – Pa. Super. 12-27-23 – unreported**

https://www.pacourts.us/assets/opinions/Superior/out/J-A25023-23m%20-%20105782574250221495.pdf?cb=1

 

 Held: A petition to open a default judgment filed 167 days after that judgment was entered is not timely.

“In general, a default judgment may be opened when the moving party establishes three requirements: (1) a prompt filing of a petition to open the default judgment; (2) a meritorious defense; and (3) a reasonable excuse or explanation for its failure to file a responsive pleading.” Smith, 29 A.3d at 25. Additionally, “the trial court cannot open a default judgment based on the ‘equities’ of the case when the defendant has failed to establish all three of the required criteria.” Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009) (emphasis added). Hence, the court may dismiss a petition to open a default judgment based on one or more of the criteria. 

Here, the trial court denied relief based upon the first criteria – i.e., that the Bogos failed to file their petition to open the default judgment promptly. The promptness requirement stems from the fact that the party seeking to open a default judgment appeals to the equitable power of the court. Under the ancient maxim, “equity aids the vigilant, not those who slumber upon their rights.” Riley v. Boynton Coal Co., 157 A. 794, 795 (Pa. 1931). 

Equity’s window for lending aid closes quickly when parties seek to open judgments after defaulting under the Rules of Civil Procedure. “The timeliness of a petition to open a judgment is measured from the date that notice of the entry of the default judgment is received.” Myers, 986 A.2d at 176. While there is no “specific time period within which a petition to open a judgment must be filed to qualify as [timely] . . . the [trial] court must consider the length of time between discovery of the entry of the default judgment and the reason for delay.” Id. “In cases where the appellate courts have found a ‘prompt’ and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month.” Id. 

Indeed, as the trial court said, our precedents are “clear regarding what should be deemed a prompt request to open a default judgment . . . .” Trial Court Order and Opinion, 1/13/23, at 2. Relying on US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009), the trial court observed that delays 55 days, 63 days, and 82 days were not prompt for equitable purposes. Id. (quoting US Bank N.A. and decisions cited therein). 

Here, the Bogos delayed far longer than any case upon which the trial court relied. They waited 167 days after the entry of the default judgments to appear and to petition to open those judgments. “Based on these previous decisions, we find support for the trial court’s conclusion that the delay in this case does not constitute a prompt filing, and therefore, we find no abuse of discretion on this basis.” US Bank N.A., 982 A.2d at 995. 

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Superior Court – unreported decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

employment - EMT certification - appeal - abuse of discretion

Knelly v. Pa. Dept. of Health – Cmwlth. Court (2-1)  – 12-13-23

https://www.pacourts.us/assets/opinions/Commonwealth/out/1088CD22_12-13-23.pdf?cb=1

 

Held: It was an abuse of discretion for the Dept. of Health to revoke Knelly’s EMT certification rather than impose a lesser penalty, even though Knelly (a) had entered plea of nolo contendere to second degree felony strangulation involving his minor son, and (b) he failed to report the conviction to the DOH, as required by statute. The court vacated the revocation and remanded the case for further consideration.

 

Scope and standard of review

Absent an accusation of bad faith or fraud, our review of a licensing board’s disciplinary sanction is limited to determining “whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency’s duties or functions.” Goldberger v. State Board of Accountancy, 833 A.2d 815, 817 n.1 (Pa. Cmwlth. 2003) (quoting Slawek v. State Board of Medical Education and Licensure, 586 A.2d 362, 365 (Pa. 1991)). Further, a professional licensing board exercises “considerable discretion in policing its licensees.” Ake v. Bureau of Professional and Occupational Affairs, State Board of Accountancy, 974 A.2d 514, 519 (Pa. Cmwlth. 2009). The weight to be given to evidence of mitigating circumstances is a matter of agency discretion. Burnworth v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 589 A.2d 294, 296 (Pa. Cmwlth. 1991). Nevertheless, this Court must “correct abuses of discretion in manner or degree of penalties imposed.” Ake, 974 A.2d at 519 (internal quotation omitted); see also Foose v. State Board of Vehicle Manufacturers, Dealers and Salespersons, 578 A.2d 1355 (Pa. Cmwlth. 1990). 

 

Constitutional right to engage in lawful employment

Legal Principles Governing Licensure Revocation 

The Pennsylvania Supreme Court has long stated: 

[E]very citizen has an inalienable right to engage in lawful employment. While a state may regulate a business which affects the public health, safety and welfare, it may not, through regulation, deprive an individual of his right to conduct a lawful business unless it can be shown that such deprivation is reasonably related to the state interest sought to be protected.

Secretary of Revenue v. John’s Vending Corporation, 309 A.2d 358, 361 (Pa. 1973) (citations omitted) (emphasis added). See also King v. Bureau of Professional and Occupational Affairs, State Board of Barber Examiners, 195 A.3d 315, 329 (Pa. Cmwlth. 2018) (“our Supreme Court has consistently interpreted [a]rticle I, [s]ection 1 of the Pennsylvania Constitution[, Pa. Const. art. I, § 1,] as guaranteeing an individual’s right to engage in any of the common occupations of life”) (emphasis added). 

Effect of plea of nolo contendere in this particular case –

The Court agreed that the imposition of the most severe sanction was without adequate consideration of mitigating evidence and the fact a nolo contendere plea does not itself sufficiently connect the conviction to his present ability to perform his duties as an EMT.  The Court also found that “the Department completely ignored several mitigating factors that are undisputed in the record—especially the parents’ “bitter custody battle” and “[m]ost tellingly, that Knelly currently has at least partial custody of his son pursuant to an informal agreement with his son’s mother. There is no meaningful discussion or weighing of these facts anywhere in the Department’s Final Determination, which absence we find to be manifestly unreasonable. We therefore conclude that the Department’s revocation of Knelly’s EMT certification based on his nolo contendere plea was a manifest abuse of discretion and unreasonable in these circumstances.”

 

Dissenting opinion of Judge Ceisler

The majority “improperly reweighed the evidence and made its own credibility determinations” contrary to those made by the hearing officer and Department – something that “this Court is not permitted to do.” 

 

Since we will never know if Knelly actually committed the underlying felony charge to which he pled, I believe it is prudent to err on the side of caution due to the severity of the allegations. We must also give deference to the hearing officer, who actually observed the witnesses’ testimony and made credibility determinations based on those observations. 

It would not be in the public’s best interest to allow an emergency medical technician (EMT) to remain certified and continue to dispense lifesaving care in extremely stressful situations after he has been convicted of physically harming his own minor child. 

In this situation, I am uncomfortable reweighing the evidence and substituting our credibility determinations for those of the hearing officer. Because I do not believe the Department abused its discretion in revoking Knelly’s EMT certification under the circumstances, I would affirm the Department’s Final Determination. 

 

 

 

 

 

 

 

 

 

civil procedure - appeals - PRAP 1925(b) - failure to timely file statement of matters complained of

Bertino v. Tax Claim Bureau – Pa. Cmwlth. 12-12-23 – unreported**

 

Rule 1925(b) sets out a simple bright-line rule, which obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered.” Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). 

Failure to comply with the minimal requirements of Pa. R.A.P. 1925(b) will result in automatic waiver of the issues raised,” even where granting relief has equitable appeal. Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005). 

Requiring “a bright-line rule eliminates the potential for the inconsistent results that existed prior to Commonwealth v.] Lord, [719 A.2d 306 (Pa. 1998), when trial courts and appellate courts had discretion to address or to waive issues raised in non-compliant Pa.[ ]R.A.P. 1925(b) statements.” Schofield, 888 A.2d at 774. Accordingly, “the Rule’s provisions are not subject to ad hoc exceptions or selective enforcement[,] appellants and their counsel are responsible for complying with the Rule’s requirements.” Hill, 16 A.3d at 494. 

Rule 1925(b) requires that, to preserve issues for appellate review, the 1925(b) statement must be timely filed and served on a trial judge. Finding all of the appellant’s issues waived for not complying with Rule 1925(b)’s requirements is consistent with “the Supreme Court’s commitment to a bright-line rule of waiver for failure to comply with the requirements of Rule 1925.” Commonwealth v. $766.00 U.S. Currency, 948 A.2d 912, 915 (Pa. Cmwlth. 2008),

Here, the trial court’s July 22, 2022 order directed Bertino to file a Concise Statement within 21 days. Bertino did not file his statement until 25 days later; therefore, it was untimely. 

Rule 1925(b) requires both filing of the Concise Statement and service of that statement on the trial court within the time set forth in the order. The deadlines in Rule 1925(b) are unambiguous, and a concise statement “is either timely or it is not.” Tucker v. R.M. Tours, 977 A.2d 1170, 1173 (Pa. 2009). 

Because an untimely served statement “fail[s] to comply with the minimal requirements of Pa.[ ]R.A.P. 1925(b)[, it] will result in automatic waiver of the issues raised.” Schofield, 888 A.2d at 774. 

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** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).

 

 

 

 

 

 

admin. law - timely adjudication - mandatory v. directory - "purely judicial function" -

Kabiru v. Bureau of Professional and Occupational Affairs

Commonwealth Court – 11-21-23 – not reported**

 

Car salesperson appealed a decision of the BPOA, on the facts, and because the adjudication was issued past the 90-day deadline set out in the statute, 63 Pa.C.S. § 3105(d)(4), which provides that the “[Board] shall render a final adjudication or decision on any exceptions to the decision of a hearing examiner or any applications for review within 90 days of the filing of the exceptions or applications[.]”(emphasis added). 

 

The Court held that the “shall” language of the statute was not mandatory but merely directory, because the Board was exercising a “purely judicial function,” following the jurisprudence set out below.

 

From the opinion:

 

To be sure, “[i]t has long been part of the jurisprudence of this Commonwealth that the use of ‘shall’ in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory.” In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1071 (Pa. 2020). Indeed, in 1956, our Superior Court established: 

To hold that a provision is directory rather than mandatory, does not mean that it is optional—to be ignored at will. Both mandatory and directory provisions of the legislature are meant to be followed. It is only in the effect of non-compliance that a distinction arises. A provision is mandatory when failure to follow it renders the proceedings to which it relates illegal and void; it is directory when the failure to follow it does not invalidate the proceedings. 

Borough of Pleasant Hills v. Carroll, 125 A.2d 466, 469 (Pa. Super. 1956) (emphasis added). Nearly four decades later, this Court similarly held that “‘shall’ has generally been regarded as directory, unless time is of the essence or the statute indicates that the provision is mandatory.” Dep’t of Transp., Bureau of Driver Licensing v. Claypool, 618 A.2d 1231, 1232 (Pa. Cmwlth. 1992) (citing Commonwealth v. Kowell, 228 A.2d 50 (Pa. Super. 1967)). 

We have also recognized the General Assembly may not “fix a time in which the exercise of a purely judicial function must occur and, thus, when a statute appears to do so it will be construed as directory.” West Penn Power Co. v. Pa. Pub. Util. Comm’n, 521 A.2d 75, 78 (Pa. Cmwlth. 1987) (emphasis added); see JPay, Inc. v. Dep’t of Corr., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (“[The Commonwealth Court] is particularly reluctant to find a statutory provision mandatory where it requires that a Commonwealth agency issue an adjudication within a specified time frame[.]”). 

The language of Section 3105(d)(4) does not prima facie invalidate the Board’s authority in the event its final adjudication—a “purely judicial function”—exceeds the statute’s 90-day deadline. First, it is well settled that “where a statute fixes a time for an adjudicating body, the language of the statute will be construed as directory because the courts cannot punish any of the litigants for the actions of the adjudicator.” Pub. Serv. Water Co. v. Pa. Pub. Util. Comm’n, 645 A.2d 423, 430 (Pa. Cmwlth. 1994) (citing West Penn, 521 A.2d at 78). We correspondingly determined in Schulze v. Bureau of Professional and Occupational Affairs, 794 A.2d 984, 989 (Pa. Cmwlth. 2002), and Shapiro v. State Board of Accountancy, 856 A.2d 864, 872 (Pa. Cmwlth. 2004), that Section 3(d) of the Act of July 2, 1993, P.L. 345, formerly 63 P.S. § 2203(d), repealed by the Act of July 1, 2020, P.L. 575 (the predecessor to Section 3105(d)(1)), is a directory provision. “When the meaning of a word or phrase is clear when used in one section, it will be construed to mean the same thing in another section of the same statute.” Hous. Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d 935, 946 (Pa. 1999) (citing Commonwealth v. Maloney, 73 A.2d 707, 712 (Pa. 1950)). Section 3105(d)(4) is in pari materia with Section 3105(d)(1); therefore, Section 3105(d)(4) is equally directory. See 1 Pa.C.S. § 1932. For these reasons, the Board’s delay did not prejudice Petitioner; in fact, she actually “benefited from the delay through continuous, unencumbered licensure.”

 

** An unreported decision of the Commonwealth Court can be cited “for its persuasive value, but not as binding precedent” under 210 Pa. Code 69.414 (citing judicial opinions in filings).