Wang, L. v. Talotta, V. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LIMING WANG : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VINCENT GUISEPPE TALOTTA, :
GEARY STREET TOWNHOMES, LLC :
AND JING PU : No. 22 EDA 2018
:
:
APPEAL OF: GEARY STREET :
TOWNHOMES, LLC :
Appeal from the Order Entered November 16, 2017
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 02915 September Term, 2016
BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 25, 2019
Appellant, Geary Street Townhomes, LLC, appeals from the order of
November 16, 2017 in the Civil Division of the Court of Common Pleas of
Philadelphia County that denied its petition to open a default judgment
entered in favor of Liming Wang (Wang). We affirm.
Wang commenced this action on September 26, 2016 by filing a
complaint for mortgage foreclosure against defendant Guiseppe Talotta
(Talotta). Thereafter, on January 20, 2017, Wang filed an amended complaint
naming Appellant and Jing Pu (Pu) as defendants. Wang served Appellant
with the amended complaint on March 18, 2017. Thus, Appellant had 20 days,
or until April 7, 2017, to file an answer or preliminary objections to the
amended complaint. See Pa.R.C.P. 1026(a).
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* Retired Senior Judge assigned to the Superior Court.
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When no responsive pleading was forthcoming, Wang, on April 26, 2017,
sent Appellant notice of her intent to enter default judgment. See Pa.R.C.P.
237.1. Thereafter, on May 11, 2017, Wang filed a preacipe to enter default
judgment against Appellant. On June 21, 2017, Appellant retained counsel
who entered his appearance on Appellant’s behalf. Counsel then contacted
counsel for Wang seeking a stipulation to vacate the default judgment, but
counsel for Wang refused. On September 18, 2017, Appellant filed a petition
to open the default judgment entered on May 11, 2017. Appellant’s petition
explained that it was unable to retain counsel within the period for filing an
answer or within the ten-day period after entry of the default judgment.1 The
trial court denied Appellant’s petition on November 16, 2017. In its July 26,
2018 opinion, the trial court stated that Appellant’s petition was not promptly
filed and that Appellant’s excuse for failing to respond was unreasonable. This
appeal followed.
Appellant’s brief raises the following questions for our review.
Should the [trial] court have considered [Appellant’s petition to
open default judgment] in accordance with equitable principles as
required by the Supreme Court of Pennsylvania?
Should the [trial] court have found that Appellant satisfied the
three-prong requirement for opening a judgment by default?
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1Rule 237.3 governs relief from judgment of non pros or by default and directs
the court to open a judgment where the defaulting party files its petition to
open within ten days of entry of the adverse judgment and attaches a
proposed answer stating a meritorious defense. See Pa.R.C.P. 237.3.
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Appellant’s Brief at 6.
Before we address the merits of Appellant’s claims, we briefly consider
a contention advanced by Wang that pertains to our jurisdiction. Specifically,
Wang argues that we lack jurisdiction over this appeal because the order
entering default judgment against Appellant was not final and appealable. In
support of this contention, Wang points out that the order did not dispose of
claims against Talotta and Pu and did not assess damages against Appellant.
See Wang’s Brief at 3. “This Court has held that a party may petition to open
a default judgment prior to the assessment of damages and that an appeal
from an order denying such a petition is appealable under Pa.R.A.P.
311(a)(1)[, which allows appeals of interlocutory orders that deny requests to
open a judgment.]” Boatin v. Miller, 955 A.2d 424, 433 n.2 (Pa. Super.
2008); see also Mother's Restaurant, Inc. v. Krystkiewicz, 861 A.2d 327,
334-336 (Pa. Super. 2004) (en banc). Wang cites no case law in support of
her position and our own research has not uncovered precedent that precludes
jurisdiction over this interlocutory appeal as of right. In view of these
circumstances, we conclude that we possess jurisdiction to review Appellant’s
claims.
Appellant’s issues are closely related and we shall address them in a
single discussion. Appellant argues that the trial court abused its discretion
in denying its petition to open the May 11, 2017 default judgment. In
developing this claim, Appellant asserts that it did not act in a dilatory fashion,
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that it demonstrated its intent to defend the case, and that it experienced
difficulty in retaining counsel in a timely manner because Wang’s allegations
were not covered by a policy of insurance and Appellant was required to act
on its own in financing a defense. See Appellant’s Brief at 13.
The following principles govern our review of Appellant’s contentions.
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. The standard of review for challenges 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 o[w]n 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.
Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 25 (Pa. Super. 2011)
(quotation omitted).
After careful review, we conclude that Appellant is not entitled to relief.
As a preliminary matter, we agree with the trial court that Appellant did not
act promptly in filing its petition to open the default judgment. Instead,
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Appellant waited months to file its petition, long after Wang entered default
judgment and Appellant retained counsel. Lastly, Appellant’s explanation for
its delay – difficulty in retaining counsel – is entirely unconvincing. Apart from
its obligation to pay for legal representation, Appellant has not referred us to
an undue hardship or other obstacle which delayed its response. We are
unwilling to view this circumstance as a reasonable excuse or explanation for
Appellant’s failure to file a responsive pleading.2 Accordingly, we affirm.
Order affirmed. Application to strike Appellant’s reply brief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/19
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2 The record reveals that Appellant is a real estate developer in the
Philadelphia area.
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