J-A23001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUOMARA NUNEZ

v.

KLS ENTERPRISES T/A AND D/B/A 

MCDONALDS RESTURANT AND 

MCDONALDS STORE #8261 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3542 EDA 2019

Appeal from the Order Entered November 20, 2019,

in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): No. 190700954.

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBUARY 9, 2021

KLS Enterprises t/a and d/b/a McDonald’s Restaurant and McDonald’s 

Store #8261 appeals from the order denying the petition to open default 

judgment entered against it in this personal injury case. Upon review, we 

affirm.

The procedural history and relevant facts of this case are as follows. 

KLS is a Pennsylvania corporation. It owns and operates several McDonald’s 

restaurants in the Philadelphia area. 

On July 9, 2019, Suomara Nunez filed a complaint against KLS claiming 

that she was injured while working at KLS’ Torresdale Avenue McDonald’s 

restaurant. Nunez served the complaint upon KLS on July 17, 2019, by 

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* Retired Senior Judge assigned to the Superior Court.
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handing it to: 1) Tashiana Damey, the shift manager at KLS’ Ogontz Avenue 

McDonald’s; and 2) Arrona Jones, the department manager at KLS’ Torresdale 

McDonald’s. KLS’ human resources director, DaShaun Youngblood first 

learned of Nunez’ complaint on July 23, 2019, when she was given a copy of 

it at their weekly leadership meeting. That same day, Youngblood sent the 

complaint to KLS’ general liability carrier (Zurich Insurance Co.) and its 

worker’s compensation carrier (Guard Insurance Co.), via email, and reported 

Nunez’ lawsuit to them. Thereafter, KLS did not file a response to the 

complaint.

On August 7, 2019, Nunez served KLS with a ten (10) day notice of 

intent to take a default judgment by mailing a copy to the Ogontz and 

Torresdale restaurants’ addresses. Still, KLS did not respond to the complaint.

On August 22, 2019, Nunez praeciped for entry of default judgment, 

which was entered the same day. Notice was sent to KLS at both the Ogontz 

and Torresdale addresses. After learning of the default judgment, KLS 

retained counsel and filed a petition to open the default judgment on October 

4, 2019. 

At the hearing on KLS’s petition, Youngblood testified that once she 

learned of Nunez’ complaint, she sent it to both KLS’ worker’s compensation 

and general liability insurance carriers. Having done so, KLS relied on its 

carriers to handle the matter. Youngblood further testified that she did not 

receive either the notice of intent to take a default judgment or the default 

judgment. Instead, according to Youngblood, she learned about the default 
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judgment from McDonald’s corporate on September 20, 2019, via an email. 

Nonetheless, the trial court denied KLS’ petition to open the judgment. 

KLS filed this timely appeal. On appeal, KLS raises the following single 

issue:

I. Whether the [t]rial [c]ourt abused its discretion in denying 

KLS’ petition to open default judgment where the three 

factors necessary to open a default judgment . . . were 

present .

See KLS’ Brief at 4.

Generally, 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. Dumoff v. Spencer,

754 A.2d 1280, 1282 (Pa. Super. 2000). Our standard of review for a 

challenge to a decision concerning the opening of a default judgment is well 

settled. 

A petition to open a default judgment is an appeal to the equitable 

powers of the court. The decision to grant or deny a petition to 

open a default judgment is within the sound discretion of the trial 

court, and we will not overturn that decision absent a manifest 

abuse of discretion or error of law.

However, we will not hesitate to find an abuse of discretion if, after 

our [] review of the case, we find that the equities clearly favored 

opening the judgment.

An abuse of discretion is not a mere error of judgment, but if in 

reaching a conclusion, the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill will, as shown by the evidence or 

the record, discretion is abused.
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Id. (citations omitted).

In its appeal, KLS claims that the trial court abused its discretion in 

denying KLS’ petition to open the default judgment entered against it because 

KLS argues that it satisfied the three requirements to open a default 

judgment. In particular, KLS offered a reasonable explanation for its failure 

to respond to the complaint. Upon receipt of the complaint, KLS sent it to its 

insurance carriers and relied on them to handle the matter; KLS itself did not 

have expertise to respond to the complaint. However, neither of KLS’ 

insurance carriers responded to the complaint. Furthermore, KLS did not 

receive notice of Nunez’ intent to take a default judgment or entry of the 

actual judgment. KLS Brief at 19-21. 

KLS also argues that the trial court failed to consider the equities and 

prejudices in this case. Consequently, according to KLS, this Court should 

reverse the trial court’s order, and allow this case to proceed on its merits. 

KLS’ Brief at 34-35.

In this case, the focus was on the third requirement needed to open a 

default judgment. KLS argued that it had a reasonable excuse or explanation 

for not responding to Nunez’ complaint. Specifically, KLS, unsophisticated in 

legal matters, justifiably believed that its insurance carriers were protecting 

its legal interests, but failed to timely respond on behalf of KLS. Trial Court 

Opinion, 3/16/20, 3-4.

Generally, courts have found that an insured’s belief that its legal 

interests were being protected by its insurance carrier constitutes a 
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reasonable excuse or explanation for the insured’s failure to file a timely 

responsive pleading. Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099, 

1102-03 (Pa. Super. 1996); Autologic Inc. v. Cristinzio Movers, 481 A.2d 

1362 (Pa. Super. 1984). However, “if the insured failed to inquire of the 

insurer as to the status of the case after events have occurred which should 

have reasonably alerted the insured to a possible problem, [particularly notice 

of the other party’s intent to take a default judgment], the insured is precluded 

from asserting a justifiable belief that its interests were being protected.” 

Autologic, at 1363; Flynn, at 1103. Additionally, where the insured is not a 

layperson, but a sophisticated insured such as corporate defendant with the

means to monitor legal claims, the courts have found that such belief was not 

justifiable. Flynn, at 1102-1103. 

Here, the court rejected KLS’ claims, and found that, under the 

circumstances of this case, KLS was not justified in believing that its insurance 

carriers were handling the matter. Therefore, KLS failed to prove that it had

a reasonable excuse for not responding. Trial Court Opinion, 3 at 4. 

First, the trial court found that KLS was not a layperson, but rather a 

sophisticated insured and corporate defendant with the means to monitor legal 

claims. Trial Court Opinion, 3/16/20, at 3. The court explained: 

[KLS] has been in business for several years as a corporate 

franchisee of the McDonald’s Corporation. As a franchisee, [KLS] 

receives support and assistance from McDonald’s Corporation 

including information regarding lawsuits and insurance.
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Id., 3/16/20, at 3-4. We observe that the evidence further showed that KLS 

was involved in multiple lawsuits before Nunez initiated hers.

Additionally, the trial court found that KLS received notice of Nunez’ 

intent to take a default judgment evidenced by the certificate of service 

showing that Nunez sent it to KLS at both its Ogontz and Torresdale

restaurants. It was KLS’ process that such mail was to be given to Youngblood 

at KLS’ weekly leadership meetings. Although Youngblood testified that she 

never received Nunez’ notice of intent to take a default judgment, given this 

evidence, the trial court did not find her testimony credible, which we cannot 

disturb. The court explained that this notice “should have alerted [KLS] to the 

possibility that [its] insurance carriers were either (1) not going to defend it 

against the claim, or (2) were delinquent in their duties.” Trial Court Opinion, 

3/16/20, at 4. Instead, KLS merely sent a copy of Nunez’ complaint to its 

insurance carriers, and made no inquiries thereafter as to the status of this 

claim.

 The trial court further explained that, unlike the case of Reid v. 

Boohar, 856 A.2d 156 (Pa. Super. 2004), where this Court found that the 

insured had a reasonable excuse, KLS did not allege that its insurance carriers 

were unresponsive, made a mistake or oversight in their operation or lost their 

claim files. Id. at 4 fn. 2. In fact, KLS offered no explanation for the insurance 

carriers’ lack of response until after entry of the default when they both denied 

coverage. 
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The instant case is similar to Bethlehem Apparatus Co., Inc. v. H.N.

Crowder, Jr., Co., 364 A.2d 358 (Pa. Super. 1976), 

instructive. In Bethlehem, an insured received service of a complaint 

naming it as a defendant in a breach of contract action. The insured alerted 

his insurance carrier of the receipt of the complaint, explained the 

circumstances, and asserted his belief that the matter was covered by his 

liability insurance. Id. at 360. The insured received no response from the 

carrier, and took no action to defend against the action until it learned of the 

entry of a default judgment. Id. at 359-60. The insured 

in Bethlehem offered no explanation or information regarding why the 

insurance carrier failed to mount a defense on its behalf. Accordingly, this 

Court concluded that “the record clearly shows that the [insured] has not 

acted in a manner that would have enabled it to rely justifiably upon legal 

representation by the insurance carrier.” Id. Similarly, KLS was not justified 

in relying on its insurance carriers when they failed to inquire as to the status 

of the claim or confirm that KLS’ carriers were taking steps to handle the 

matter.

KLS further argues that the trial court erred in denying KLS’ request to 

open the default judgment because it failed to consider the equities in this 

case. 

When considering whether to open a default judgment, courts must 

“determine whether there are equitable considerations which require that a 

defendant, against whom a default judgment has been entered, receives an 
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opportunity to have the case decided on the merits.” Duckson v. Wee 

Wheelers, 620 A.2d 1206, 1208 (Pa. Super. 1993). However, the 

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, 986 A.2d 171, 176 (Pa. Super. 2009) 

(citations omitted). 

Here, the court found that KLS did not satisfy the reasonable explanation 

for not timely responding to the complaint prong. Therefore, the trial court 

properly did not consider further the equities of the case. KLS is entitled to 

no relief.

Based upon the foregoing, we conclude that the trial court did not abuse 

its discretion in denying KLS’ petition to open the default judgment. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/09/2021
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