IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sales and Marketing Group, Inc., :

Petitioner :

:

v. : No. 198 C.D. 2017

: Argued: December 4, 2017

Pennsylvania Human Relations :

Commission, :

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: January 4, 2018

Sales and Marketing Group, Inc. (SMG) petitions for review from an 

order of the Pennsylvania Human Relations Commission (Commission) that denied 

its petition to open a judgment. SMG failed to answer the complaint its former 

employee, Jason Scott (Employee), filed with the Commission alleging 

discriminatory discharge under the Pennsylvania Human Relations Act (Act)1 based 

on race and sex. Despite prior settlement negotiations between counsel for 

Employee and counsel for SMG (Attorney Koller), Employee’s counsel did not 

serve Attorney Koller with the complaint filed with the Commission. As Attorney 

Koller had not filed an appearance with the Commission at that time, the 

Commission served SMG directly.

 

1 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§951-963.
2

SMG argues its failure to answer was excused because it believed, 

albeit mistakenly, that Attorney Koller was aware of the complaint and handling the 

dispute. It contends this belief was reasonable despite receiving multiple 

communications from the Commission regarding its failure to respond. SMG also 

asserts its petition to open the judgment was prompt, and it maintains it has a defense 

that warrants a decision on the merits. Because SMG did not establish grounds to 

open the judgment, we affirm.

I. Background

This dispute arose from SMG’s allegedly discriminatory discharge of 

Employee from his position as General Manager in June 2014. In early August 2014, 

counsel for Employee sent SMG a letter advising of Employee’s intent to file a 

complaint with the Commission. He attached a draft complaint to the letter. The 

letter also invited settlement discussions. Attorney Koller sent a letter in response on 

August 19, 2014, explaining that he was representing SMG in the discrimination 

matter. Certified Record (C.R.), Item No. 5, Ex. A. Shortly thereafter, counsel 

engaged in settlement negotiations. SMG rejected Employee’s settlement demand. 

The attorneys did not further discuss settlement or the ensuing litigation.

On December 8, 2014, Employee filed a complaint against SMG 

alleging discriminatory discharge under the Act based on race and sex (Complaint). 

The Commission served SMG with a copy of the Complaint on December 23, 2014. 

The Commission did not serve Attorney Koller because he had not entered an 

appearance. The Complaint included a notice to defend. Nonetheless, SMG failed 

to answer within 30 days of service as required by 16 Pa. Code §42.31(c). 
3

When no answer was received, the Commission sent a letter to SMG 

dated February 4, 2015, requesting an answer within 10 days (February Letter). 

SMG did not respond. Again, on March 6, 2015, the Commission wrote to SMG 

requesting an answer within 10 days (March Letter). Again, SMG did not respond. 

Shortly thereafter, on March 30, 2015, the Commission filed a petition 

for a rule to show cause why SMG’s failure to answer should not result in a finding 

of probable cause, and result in a judgment for Employee on liability (March 

Petition). On April 23, 2015, the Commission issued an order granting the rule, 

setting a new deadline to answer, or to assert good cause why its failure to answer 

should not result in entry of judgment in Employee’s favor (April Rule). The new 

deadline, May 4, 2015, passed without SMG filing an answer or other response. 

On May 18, 2015, the Commission entered an order under 16 Pa. Code 

§42.33(d)(4) entering judgment by default against SMG as to liability (Judgment). 

On June 15, 2015, Attorney Koller entered an appearance for SMG. Later, he 

claimed he did not receive notice of the May Judgment until August 13, 2015, when 

he received a letter from the Commission scheduling conciliation.

Instead of participating in conciliation, on September 17, 2015, SMG 

filed a motion for extraordinary relief seeking to open the Judgment (Petition to 

Open). Employee and the Commission filed responses in opposition, and SMG 

replied. 
4

A motions examiner denied the Petition to Open on November 10, 2015 

(Interlocutory Order). In the findings and rationale accompanying the Interlocutory 

Order, he found SMG received all correspondence, including the April Rule. 

Because all communications were directed to SMG, he rejected the premise that 

SMG believed its counsel was handling the matter.

Initially, SMG filed a petition for review of the Interlocutory Order. 

The Commission filed preliminary objections. After telephonic argument on the 

objections, which were deemed a motion to quash, this Court quashed the appeal. 

Subsequently, a hearing examiner conducted a public hearing limited 

to Employee’s damages. The parties submitted post-hearing briefs. Based on the 

evidence and briefing, the hearing examiner issued a recommendation awarding 

damages to Employee.

Ultimately, in January 2017, the Commission adopted the hearing 

examiner’s recommendation, and it issued a final order awarding Employee 

$100,766.70 for lost earnings, plus six percent interest per year as of his discharge 

date. In its adjudication, the Commission determined that SMG was served with a 

copy of the Complaint in December 2014, to which it failed to respond. Comm’n 

Adj., 1/23/17, Finding of Fact, (F.F.) No. 2; Reproduced Record (R.R.) at 339a. It 

also found the Commission sent the February and March Letters advising of the 

consequences if an answer to the Complaint was not filed. SMG’s employee signed 

for the April Rule sent by certified mail. F.F. No. 6. Thus SMG had notice of 

impending judgment.
5

SMG petitions for review2from the Commission’s final order, as well 

as the Interlocutory Order denying its Petition to Open. SMG asks this Court to vacate

the judgment and to remand for further proceedings on the merits. After briefing and 

argument, the matter is ready for disposition.

II. Discussion

A. Issues Preserved

SMG’s petition for review raised two issues: (1) the Complaint does 

not sustain an inference that discrimination occurred;3 and, (2) the Commission 

abused its discretion in denying its Petition to Open and should decide the case on the 

merits rather than procedural default. See Pet. for Review (Pet.) at ¶5. However, 

SMG briefed only the entry of judgment on liability issue. Accordingly, only that 

issue is capable of appellate review. See Com. v. Spontarelli, 791 A.2d 1254, 1259 

n.11 (Pa. Cmwlth. 2002) (“Mere issue spotting without analysis or legal citation to 

support an assertion precludes our appellate review of this matter.”).

As to the entry of judgment, SMG claims it meets the three factors 

required to open a judgment. See 16 Pa. Code §42.33. It argues the Judgment should 

be vacated because its failure to file an answer was the result of “excusable neglect,” 

Pet’r’s Br. at 11, because it believed, albeit mistakenly, that Attorney Koller was 

 

2 Our review is limited to determining whether the Commission violated constitutional 

rights, made findings of fact which are not supported by substantial evidence, or committed legal 

error. Pa. Bd. of Prob. & Parole v. Pa. Human Rel. Comm’n, 66 A.3d 390 (Pa. Cmwlth. 2013). 

3 Under Commission regulations, Commission staff must “determin[e] that a complaint 

sets forth sufficient facts to raise an inference of unlawful discrimination under the [A]ct, and the 

respondent has failed to deny these facts in an answer, or has failed to file an answer” before taking 

steps for an entry of judgment as to liability. 16 Pa. Code §42.33(c).
6

receiving the same communications and handling the matter. In the alternative, 

SMG attributes its failure to file an answer to attorney error. SMG contends it meets 

the other criteria for removing an entry of judgment including that it filed its Petition 

to Open promptly upon discovering the Judgment. It also asserts it has a defense 

that warrants litigation on the merits.

B. Prerequisites for Opening Judgment

This Court follows the common law for a petition to open default 

judgment when reviewing a Commission entry of liability under 16 Pa. Code §42.33. 

Bebee v. Pa. Human Rel. Comm’n, 55 A.3d 1280 (Pa. Cmwlth. 2012); see Kennedy 

v. Black, 424 A.2d 1250 (Pa. 1981) (outlining common law factors for opening default 

judgment). In Bebee, we held a petitioner must satisfy three factors to warrant 

opening a default judgment: (1) prompt filing of a petition to open; (2) a reasonable 

excuse for its failure to act; and, (3) a meritorious defense to the complaint. Id. All 

three factors must be met before a default judgment may be opened. McCoy v. Pub. 

Acceptance Corp., 305 A.2d 698 (Pa. 1973). Thus, once the fact-finder determines 

one factor is not present, the decision to refuse to open the judgment is warranted. Id.

1. Timeliness

First, we consider whether SMG’s Petition to Open was timely. Here, 

SMG filed the petition to open on September 16, 2015, almost four months after 

Judgment, which the Commission entered on May 18, 2015.

Relevantly, the timeliness of a petition to open judgment is measured 

from the date that notice of the entry of the default judgment is received. However, 

common law does not establish a specific time frame within which a petition to open 
7

a judgment must be filed to qualify as prompt. U.S. Bank N.A. v. Mallory, 982 A.2d 

986 (Pa. Super. 2009) (holding 82 days is not prompt). A court must consider the 

length of time between discovery of the entry of the judgment and the reason for delay. 

Id. (citing Castings Condo. Ass’n v. Klein, 663 A.2d 220 (Pa. Super. 1995)). 

Appellate courts have found a “prompt” filing of the petition to open a 

default judgment when the period of delay has been less than one month. See

Mallory (citing Duckson v. Wee Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993))

(one day is timely); Alba v. Urology Assocs. of Kingston, 598 A.2d 57 (Pa. Super. 

1991) (14 days is timely); Fink v. Gen. Accident Ins. Co., 594 A.2d 345 (Pa. Super. 

1991) (five days is timely). Delays of more than 50 days between notice of the entry 

of the judgment and the filing a petition to open are not prompt. Mallory (82 days);

see Pappas v. Stefan, 304 A.2d 143 (Pa. 1973) (55 days); Quatrochi v. Gaiters, 380 

A.2d 404 (Pa. Super. 1977) (63 days). 

Here, SMG asserts it met this 30-day threshold because it filed the 

Petition to Open within one month of Attorney Koller’s discovery of the Judgment. 

Significantly, it cites no legal support for this application of the discovery rule. 

There is no dispute that SMG received the April Rule, and the Judgment that 

followed in May. Thus, although SMG knew about the Judgment in May, it took no 

steps to open it. Indeed, there is no indication that SMG contacted Attorney Koller 

or the Commission regarding the Judgment at that time. 
8

Importantly, SMG recognizes: “Obviously, the [Commission] was not 

required to serve [Attorney Koller] since there was no entry of appearance.”4 Pet’r’s 

Br. at 22. Because there was no entry of appearance by Attorney Koller at the time 

of Judgment, it is appropriate to consider only the time between the date SMG 

received notice of the Judgment and the filing of the Petition to Open. That period 

is 121 days. 

Regardless, presuming the discovery rule applies to Attorney Koller’s 

notice of the Judgment, and not that of SMG, Attorney Koller admitted he learned 

of the Complaint on June 15, 2015. Pet’r’s Br. at 21, 23. Thus, he became aware 

that there was a pleading requiring an answer three months before filing the Petition 

to Open in September 2015. That period is 92 days.

5

Based on applicable case law and the circumstances here, SMG’s 

Petition to Open was not prompt. It exceeds one month, which is a general parameter 

courts use when assessing promptness. Mallory.

 

4 Based on his representations in SMG’s brief and at argument, it is clear Attorney Koller

did not enter an appearance with the Commission until June 15, 2015. Pet’r’s Br. at 10 (“I entered 

my appearance on behalf of [SMG] on June 15, 2015 via a letter [sic] Investigator Luis Sanabria.”). 

 

5 Nonetheless, Attorney Koller represents he first received notice of the Judgment on 

August 20, 2015. Pet’r’s Br. at 17. However, this date conflicts with repeated statements that he 

received notice a week earlier. See id. at 10 (“I only became aware of the [Commission’s] 

judgment for [Employee] on the issue of liability when I received a letter from the Commission on 

August 13, 2015.”). Thus, presuming notice on Attorney Koller started the clock for calculating 

promptness, August 13, 2015, is the proper notice date. That period (notice to filing) is 34 days.
9

Because the absence of any one factor is a sufficient basis to deny the 

Petition to Open, McCoy, the Commission did not err. Nevertheless, in the interest 

of completeness, we briefly address the remaining factors.

2. Reasonable Excuse

Next, we consider whether SMG had a reasonable excuse for failing to 

file an answer. SMG offers two theories for reasonable excuse. First, it asserts its 

disregard for numerous communications from the Commission was reasonable 

because it believed, erroneously, that Attorney Koller was handling the case. Second, 

it contends any error in failing to answer constitutes excusable attorney error.

a. SMG’s Mistaken Belief

Appellate courts have usually addressed the issue of reasonable excuse 

in the context of a failure to respond to the original complaint in a timely manner. 

See McFarland v. Whitham, 544 A.2d 929 (Pa. 1988). For example, lack of proper 

service constitutes grounds for reasonable excuse. See Comyn v. Se. Pa. Transp. 

Auth., 594 A.2d 857 (Pa. Cmwlth. 1991). 

As to a represented party’s expectations, in the default judgment 

context, our Supreme Court held: “Any person entrusting a matter to an attorney in 

this Commonwealth should be able to believe that the matter will be competently and 

diligently handled.” Dep’t of Transp. v. Nemeth, 442 A.2d 689, 691 (Pa. 1982). An 

“attorney’s neglect of his client’s affairs provides sufficient justification for [a 

respondent’s] failure to respond to the original complaint.” Id.
10

Here, SMG received the Complaint. There is no suggestion that SMG 

did not receive the two letters warning it of the consequences of failing to answer 

the Complaint (February & March Letters). There is no dispute that SMG received 

the March Petition, the April Rule, and the Judgment in May. Thus, neither improper 

service nor lack of notice excuses SMG’s failure to answer. 

Instead, the excuse SMG submits is that it believed, erroneously, that 

Attorney Koller was handling the litigation. In explanation, SMG advises that 

Attorney Koller’s letter in response to the settlement demand showed his 

representation. SMG asserts: “It is understandable that this mistake happened for a 

layperson not well-versed in procedure.” Pet’r’s Br. at 18. 

We are unpersuaded that SMG’s excuse was reasonable under these 

circumstances. As of the entry of Judgment in May, after serving the Complaint, the 

Commission sent four separate warnings to SMG about the consequences of failing 

to answer. Yet, SMG admittedly did not contact Attorney Koller from the date it 

received process in December 2014 through May 2015. SMG’s failure to contact 

Attorney Koller when judgment was threatened was not reasonable. 

Regardless, SMG’s layperson status does not excuse it from the rules. 

This Court does not recognize ignorance of the law as a valid excuse for not filing a 

timely response. See Brady Twp. v. Ashley, 331 A.2d 585 (Pa. Cmwlth. 1975). In 

Brady Township, this Court held that “neither ignorance nor mistake of the law with 

a full knowledge of the facts is per se a ground for equitable relief.” Id. at 588. 
11

There, we reasoned it was incumbent upon the petitioner to contact her counsel once 

she knew about the action filed against her. We also emphasized the lack of any 

evidence that the petitioner did not know about the action against her or about the 

intent of the opposing party to obtain default judgment. 

Following that reasoning here, SMG’s proffered excuse was not 

reasonable. SMG failed to contact Attorney Koller in more than eight months after

the filing of the Complaint, despite receiving numerous warnings of the 

consequences of failing to answer. Therefore, SMG did not establish a reasonable 

excuse. 

b. Attorney Error

Turning to SMG’s second theory of reasonable excuse, which placed the 

onus for responding on Attorney Koller, we consider whether the defense of attorney 

error merits opening the Judgment. 

Mistake or inadvertence of counsel may justify opening a default 

judgment where a reasonable excuse for the default is offered. Horan v. R.S. Cook 

& Assoc. Inc., 430 A.2d 278, 279 (Pa. Super. 1981). “Errors of counsel ... which 

indicate an oversight rather than a deliberate decision not to defend, have been held 

to constitute sufficient legal justification to open a default judgment. Nemeth, 442 

A.2d at 691 (emphasis added).

Acceptable excuses include the misplacement or mishandling of papers 

through no fault of the client or his attorney, or a clerical oversight resulting in an 
12

attorney being unaware of the suit from the outset. Nemeth. However, an attorney’s 

carelessness or dilatoriness, or failure to act when knowing the consequences, are 

not acceptable. Our Supreme Court rejected the following as reasonable excuses for 

not filing responsive pleadings: attorney confusion as to length of extension; failure 

to follow local court customs; and, an attorney’s belief that opposing counsel would 

not take a default judgment. Kennedy.

At the outset, we recognize this is not a case where a client was without 

fault by providing filings to counsel who then did not act upon them. Nemeth. This 

is a case where counsel did not receive any client communication regarding the 

litigation. Further, there is no dispute that all relevant filings were served directly 

on SMG without copy to Attorney Koller. Thus, “attorney neglect” does not offer 

an appropriate excuse until Attorney Koller received notice.

Here, Attorney Koller became aware of the litigation sometime before 

June 15, 2015.6 At that time, he claims he entered his appearance by letter and called 

the Commission investigator on the matter. Pet’r’s Br. at 10. Yet, the certified 

record reflects he did not file anything in the litigation until he filed the Petition to 

Open on September 16, 2015. 

There is no suggestion that Attorney Koller’s failure to file an answer 

earlier than 92 days post-notice resulted from any inadvertence or mistake. Cf. Flynn 

v. Am. W. Airlines, 742 A.2d 695, 699 (Pa. Super. 1999) (“[W]here the failure to 

 

6 The certified record does not include a formal entry of appearance by Attorney Koller. 

However, he attached the June 2015 letter as Exhibit B to the Petition to Open. 
13

answer was due to an oversight, an unintentional omission to act, or a mistake of the 

rights and duties of the appellant, the default judgment may be opened.”). Because 

Attorney Koller does not identify mistake or inadvertence, the attorney error defense

does not justify opening the Judgment here. See Seeger v. First Union Nat’l Bank,

836 A.2d 163, 167 (Pa. Super. 2003) (“Excusable negligence must establish an 

oversight rather than a deliberate decision not to defend.”) (quotation marks and 

quotation omitted). 

3. Meritorious Defense

Lastly, we consider whether SMG submitted a meritorious defense. 

This Court holds “a meritorious defense is one that is sufficient to 

justify relief if proven.” Se. Pa. Transp. Auth. v. DiAntonio, 618 A.2d 1182, 1184 

(Pa. Cmwlth. 1992). Further, a petition to open must set forth its defenses “in precise, 

specific, clear and unmistaken terms.” City of Phila. v. New Sun Ray Drug, Inc., 394 

A.2d 1311, 1313 (Pa. Cmwlth. 1978). It must also set forth the facts underlying the 

defense. Id.; see Young v. Matthews Truck’g Corp., 119 A.2d 239 (Pa. 1956). 

SMG does not set forth any defense to the Complaint in its brief. Also, 

our review of the answer attached to the Petition to Open at Exhibit D (C.R. at Item 

No. 5) shows a series of general denials, and no new matter. SMG offered no

defense, much less one with merit. Thus, SMG did not meet the third factor. 

Accordingly, we discern no error in the Commission’s denial of its Petition to Open.
14

III. Conclusion

For the foregoing reasons, we conclude SMG did not meet the three 

factors required to open an entry of judgment. Therefore, we uphold the Judgment 

against SMG, and we affirm the Commission’s order.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sales and Marketing Group, Inc., :

Petitioner :

:

v. : No. 198 C.D. 2017

:

Pennsylvania Human Relations :

Commission, :

Respondent :

O R D E R

AND NOW, this 4

th day of January, 2018, the order of the Pennsylvania 

Human Relations Commission is AFFIRMED.

 

ROBERT SIMPSON, Judge