Reserved: September 9, 2019
F. Wasserman, Esquire Ciconte Scerba LLC Attorney for
Charles S. Knothe, Esquire Attorney for Peter Meyer
OPINION ON DEFENDANT'S MOTION TO REARGUE
K. WELCH JUDGE.
August 9, 2019, this Court held a hearing on Peter
Meyer's Motion to Vacate and Pencader Realty LLC's
response thereto. This Court Denied Peter Meyers Motion to
Vacate on the record and filed an Order denying the motion on
August 19, 2019. On August 14, 2019, Peter Meyer timely
noticed the present Motion for Reargument (the
"Motion") pursuant to Court of Common Pleas Rule
59(e). On August 28, 2019, Pencader Realty LLC filed a
response in opposition to the Motion. On September 6, 2019,
Peter Meyer filed his Reply. This is the Final Decision and
Order on Peter Meyer's Motion for Reargument.
AND PROCEDURAL HISTORY
2, 2018, Pencader Realty LLC ("Plaintiff) filed this
action against Sri Ganesh Sai LLC ("Defendant") for
breach of contract arising from a real estate transaction.
Plaintiff entered into an agreement to purchase property from
Defendant located at 1 6th Street, New Castle, DE 19720 (the
"Property"). Meyer & Meyer Realty
("M&M") was the real estate agent for both
Plaintiff and Defendant. The agreement between the parties
was contingent on Plaintiff successfully obtaining a mortgage
to finance the purchase of the Property. In the interim, the
Property was in need of a new roof. Plaintiff asserts M&M
urged Plaintiff to repair the roof and the parties agreed
that should the transaction fall through, Plaintiff would be
reimbursed for the cost. On June 9, 2017 and June 16, 2017,
Plaintiff wrote a check to M&M for the replacement of the
roof in the amount of $5, 635.00 each for a total of 11,
270.00. Plaintiff claims its bank denied the requisite
financing for the purchase of the Property and M&M
instructed Plaintiff to withdraw from the purchase. Despite
Plaintiffs withdrawal from the sale, Defendant has not
returned the cost of repairing the roof to Plaintiff.
27, 2018, Plaintiff filed an affidavit for entry of default
judgment for want of an answer by Defendant and this Court
entered default judgment. On July 17, 2018, Charles S.
Knothe, Esquire ("Knothe") entered his appearance
on behalf of the Defendant.
17, 2018, Defendant filed a Motion to Vacate the default
judgement and on July 24, 2018, Plaintiff responded in
opposition to Defendant's Motion to Vacate. On July 31,
2018, this Court granted Defendant's Motion to Vacate and
ordered Defendant to file an answer within fifteen (15) days.
On August 13, 2018, Defendant filed an answer denying
Plaintiffs substantive allegations and counterclaimed for
attorney's fees in the event Defendant prevailed.
January 15, 2019, Defendant filed a Motion for Summary
Judgement asserting a statute of frauds argument. On January
23, 2019, Plaintiff responded to Defendant's Motion for
Summary Judgment arguing the statute of frauds partial
performance exception. On January 25, 2019, this Court denied
January 28, 2019, Knothe filed a Motion to Withdraw as
counsel for Defendant because Defendant failed to respond to
counsel. On February 8, 2019, this Court granted Knothe's
request and instructed Defendant to hire counsel within
thirty (30) days or face default judgment.
March 11, 2019, Plaintiff filed a Motion for Default Judgment
and on March 22, 2019, this court entered default judgement
in favor of the Plaintiff against the Defendant.
26, 2019, Plaintiff filed a Motion for Attachment of Judgment
Lien and Writ of Execution, requesting to attach judgment to
a third party, Peter Meyer ("Meyer"). On October
19, 2018, while litigation was pending, Meyer purchased the
Property in question from the Defendant. Plaintiff alleged
Meyer purchased the Property despite knowing of the
litigation. Plaintiff further argued the principal of the
Defendant absconded following the sale of the Property. On
July 26, 2019, this Court granted Plaintiffs motion in part,
permitting Plaintiff to pursue its judgment by way of writ of
execution upon the Property, notwithstanding the transfer of
ownership of the Property.
26, 2019, Knothe, despite his failure to file an entry of
appearance, filed a Motion to Vacate the default judgement as
Meyer's counsel. Meyer asserted his counsel prepared a
response to Plaintiffs motion to attach; however, due to a
clerical error, the response to Plaintiffs motion was not
docketed. Meyer requested the decision be vacated and he be
permitted to file a response to Plaintiffs motion for
attachment. On August 5, 2019, Plaintiff filed a response in
opposition to Meyer's motion to vacate. Plaintiff argued
Meyer's Motion to Vacate failed to demonstrate excusable
neglect for failure to timely respond and attend the hearing
on Plaintiffs motion. Plaintiff asserted Meyer could not
avoid the rule of the Court by simply alleging clerical
errors. Plaintiff contended that permitting counsel to avoid
following procedural rules for a second time in the case
would rendered ...