Stocki, P. v. Goble, J. Lallave v. Swaydis, F. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICK R. STOCKI IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JESSE GOBLE, VICTORINA LALLAVE
A/K/A VICTORINA LALLAVE GOBLE,
FORREST M. SWAYDIS
Appellants No. 999 MDA 2017
Appeal from the Order Entered May 24, 2017
In the Court of Common Pleas of Lackawanna County
Civil Division at No.: 2015-02937
BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 14, 2018
Appellant/defendant Victorina Lallave a/k/a Victorina Lallave Goble
(“Defendant”),1 appeals from the May 24, 2017 order of the Court of Common
Pleas of Lackawanna County (“trial court”), denying her petition to open a
default judgment entered in favor of Appellee/plaintiff Patrick R. Stocki
(“Plaintiff”). Upon review, we remand for further proceedings.
The facts and procedural history of this case are undisputed. On April
28, 2015, Plaintiff initiated this civil action by filing a praecipe for writ of
summons against defendants. On May 27, 2015, Plaintiff filed a praecipe to
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* Retired Senior Judge assigned to the Superior Court.
1Defendants Jesse Goble and Forrest M. Swaydis are not parties to the instant
appeal.
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reissue the writ of summons. The docket indicates that on June 23, 2015, a
Deputy Sheriff of Lackawanna County allegedly served the writ of summons
on all defendants by handing it to Maulik Reeves, identified as “person in
charge,” at 169-171 Sussex Street, Old Forge, Pennsylvania 18518 (the
“Address”). On August 18, 2015, Plaintiff filed a civil complaint against the
defendants, alleging negligence.2 Plaintiff alleged that on May 27, 2013, he
was walking his dog near his home when the defendants’ dog, that was
unrestrained, attacked him. Specifically, the defendants’ dog allegedly bit
Plaintiff on the right arm, causing him to fall to the ground. Plaintiff alleged
that, because of the attack, he suffered and continues to suffer a laceration of
the right arm, scars to his right arm, abrasions to his left hand, nightmares,
and a shock to his nerves and nervous system.
The record indicates that Plaintiff allegedly served the complaint on the
defendants by Certified Mail, Return Receipt Requested, and First Class at the
Address. On October 13, 2015, approximately fifty-five days after service of
the complaint, Plaintiff filed a certificate of service, indicating that he served
on the defendants a notice of default judgment by Certified Mail, Return
Receipt Requested, and First Class at the Address. On November 23, 2015,
approximately forty-one days after allegedly serving on the defendants a
notice of default judgment, Plaintiff filed a praecipe for entry of default
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2The complaint contained a notice to defend, as required under Pa.R.C.P. No.
1018.1.
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judgment. The Clerk of Judicial Records entered default judgment against the
defendants. On the same date, Plaintiff filed another certificate of service,
indicating that he served on the defendants a praecipe for entry of judgment
by default and entry of judgment by Certified Mail, Return Receipt Requested,
and First Class at the Address.
On March 8, 2017, more than a year after the entry of default judgment,
Defendant filed a petition to open the default judgment to which she attached
her proposed answer to the complaint in accord with Pa.R.C.P. No. 237.3(a).
In the petition, Defendant alleged that she never was served with a copy of
the complaint and that, at the time of the alleged service of the complaint,
she did not reside at the Address. Rather, Defendant alleged that she resided
at an undisclosed location in light of a protection from abuse order entered
against her husband and co-defendant, Jesse Globe. She further alleged that
she never received a copy of the ten-day notice of default, as required under
Pa.R.C.P. Nos. 237.1(a)(2) and 237.5. On the same date, the trial court
issued a rule to show cause, indicating that a hearing would be held on May
3, 2017 at 2:00 p.m. on Defendant’s petition. The docket, however, does not
reveal that a hearing was conducted on Defendant’s petition to open default
judgment consistent with Pa.R.C.P. Nos. 206.6 and 207.
Instead, on May 24, 2017, the trial court denied without a hearing
Defendant’s petition to open the default judgment. Defendant timely appealed
to this Court. The trial court ordered Defendant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Defendant complied, raising
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sixteen assertions of error. In response, the trial court issued a Pa.R.A.P.
1925(a) opinion, concluding that Defendant was not entitled to relief.
On appeal, Defendant raises seven issues for our review:
[I.] Did the trial court err by refusing to open the default judgment
where the record reflects that [Defendant] was not served causing
a fatal defect in the procedural aspects of service of original
process upon [Defendant]?
[II.] Did the trial court abuse its discretion in denying
[Defendant’s] petition to open the default judgment where
[Plaintiff] could not establish that original process was served
upon [Defendant] in compliance with [Pa.R.C.P. No. 402]?
[III.] Did the trial court abuse its discretion or commit an error of
law where it appears from a review of the record that there is no
evidence to support the court’s findings?
[IV.] Did the trial court abuse its discretion or commit an error of
law in failing to call witnesses, permit the presentation of evidence
and cross-examination of witnesses, before issuing its May 24,
2017 order?
[V.] Did the trial court err in denying the petition to open the
default judgment and failing to consider all three criteria for
opening a default where numerous meritorious defenses to the
allegations were contained in [Defendant’s] proposed answer with
new matter to [Plaintiff’s] complaint, where [Defendant] provided
a reasonable explanation for failing to file a timely responsive
pleading, and when [Defendant], through present counsel,
promptly filed a petition to open default?
[VI.] Where [Defendant’s] petition to open possessed a
reasonable explanation or legitimate excuse for her default, did
the trial court abuse its discretion in failing to give weight to
[Defendant’s] meritorious defenses to the complaint?
[VII.] Did the trial court err in denying the petition to open the
default judgment by failing to consider the equities of the matter,
the prejudice to [Defendant] if the petition to open was denied
and whether [Plaintiff] would suffer any prejudice if the petition to
open default was granted?
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Defendant’s Brief at 6-7 (unnecessary capitalizations omitted).
At the outset, we note that, “[a]lthough orders of court denying motions
to strike or petitions to open default judgments are interlocutory, Pennsylvania
Rule of Appellate Procedure 311 provides that ‘[a]n appeal may be taken as
of right . . . from [ ] [a]n order refusing to open, vacate or strike off a
judgment.’” Keller v. Mey, 67 A.3d 1, 3 (Pa. Super. 2013). The fact that
Plaintiff here obtained default judgment against Defendant only on liability is
of no moment. There is “no support for the proposition that an aggrieved
party cannot seek to open, strike or vacate the entry of a default judgment
prior to the assessment of damages or the entry of a final decree.”
Mother’s Rest. Inc. v. Krystkiewicz, 861 A.2d 327, 335 (Pa. Super. 2004)
(en banc) (emphasis added). Accordingly, this appeal is properly before us.
We now turn to the merits of Defendant’s appeal. Our standard of
review of a denial of a petition to open a default judgment is as follows:
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.’
Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000)
(citation omitted). This Court may, after a review of the case, find
an abuse of discretion if equity clearly favored opening the
judgment. Id. (citation omitted). “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.” Id. (citation omitted).
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Generally speaking, a default judgment may be opened if the
moving party has (1) promptly filed a petition to open the default
judgment, (2) pleaded a meritorious defense to the allegations
contained in the complaint, and (3) provided a reasonable excuse
or explanation for failing to file a responsive pleading. Id. at
1281.
Seeger v. First Union Nat. Bank, 836 A.2d 163, 165 (Pa. Super. 2003).
Instantly, the trial court concluded that Defendant’s answer contained a
meritorious defense in accord with the second prong. The dispute, therefore,
turns on the first and third prongs. Plaintiff and Defendant proffer a different
version of the facts. Defendant claims that she was never served with the
complaint and the notice of default because she did not reside at the Address
during the timeframe in question, and thus, was unable to participate
meaningfully and timely in this action. Plaintiff disagrees, claiming that he
effectuated proper service upon Defendant. Given this conflict in facts and
the lack of an evidentiary hearing, we are unable to review the merits of this
appeal. In other words, to determine whether Defendant promptly filed her
petition to open default judgment and whether she provided a reasonable
excuse or explanation for failing to file a responsive pleading, the trial court
must hold an evidentiary hearing and render findings of fact, which we, as a
reviewing court, cannot do. We, therefore, remand this matter to the trial
court with instruction to hold an evidentiary hearing.
Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/14/2018
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