Stone, T. v. 4 Rides Auto Sales, LLC ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TROYCEE JADE STONE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
4 RIDES AUTO SALES, LLC AND FURAD
WOODARD
Appellant No. 2829 EDA 2014
Appeal from the Order Entered August 28, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): July Term 2013, No. 02687
BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JANUARY 08, 2016
Appellants, 4 Rides Auto Sales, LLC (4 Rides) and Furad Woodard,
appeal from the August 28, 2014 order denying their motion for post-trial
relief after the trial court assessed damages in favor of Appellee, Troycee
Jade Stone.1 After careful review, we affirm.
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*
Former Justice specially assigned to the Superior Court.
1
We note that Appellants filed their appeal prematurely from the August 28,
2014 denial of post-trial motions before judgment was entered. See
Pa.R.C.P. 227.4(2) (noting that either party may praecipe for the entry of
judgment after the trial court denies relief but does not enter judgment).
However, Pa.R.A.P. 905(a)(5) provides that “[a] notice of appeal filed after
the announcement of a determination but before the entry of an appealable
order shall be treated as filed after such entry and on the day thereof.”
Pa.R.A.P. 905(a)(5); see also Mackall v. Fleegle, 801 A.2d 577, 581 (Pa.
Super. 2002) (refusing to quash an appeal from the denial of post-trial
motions when neither party praeciped for the entry of judgment; instead, “in
(Footnote Continued Next Page)
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The trial court summarized the facts and procedural history of this
case as follows.
On July 19, 2013, [Stone] filed a Complaint
against [Appellants]. [Stone] was driving behind a
vehicle driven by [] Woodard and owned by [] 4
Rides. [Stone] alleged a piece of debris fell from the
undercarriage of this vehicle. [Stone] swerved to
avoid the debris, crashed, and suffered injuries.
In the Complaint, [Stone] alleged the
[Appellants’] address was 307 N. Chester Pike
Glenolden, Pa 19036. On August 16, 2013, the
Sheriff made several attempts to serve the
Complaint at that address but there was no response
at the door. [Stone] filed a Motion for Alternative
Service. The [trial court] granted [Stone’s] Motion
and authorized the Complaint to be served by
regular and certified mail. The certified mail went
unclaimed but the regular mail was not returned.
[Appellants] failed to timely respond to the
Complaint. On December 3, 2013, [Stone] sent
[Appellants] a notice of his intention to take default
judgment for [Appellants’] failure to respond to the
Complaint. This notice was sent to the Glenolden
address. Again, [Appellants] did not respond.
[Stone] subsequently filed a Praecipe to Enter
Default Judgment and served it on [Appellants] by
first class mail at the same Glenolden address.
A Default Judgment was entered on December
17, 2013. Notice of the default judgment was sent
to [Appellants] by regular mail at the Glenolden
address. An assessment of damages hearing was
scheduled for February 3, 2014. [] Woodard
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(Footnote Continued)
the interests of judicial economy we will regard as done what ought to have
been done[]”). Therefore, even though neither party praeciped for the entry
of judgment following the assessment of damages, we will not quash this
appeal as interlocutory. See Pa.R.A.P. 905(a)(5); Mackall, supra.
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received notice of the hearing by regular mail at the
Glenolden Address. [] Woodard appeared at the
hearing without an attorney. The [trial court]
continued the hearing to March 17, 2014, so []
Woodard could retain counsel.
On February 19, Michael McDermott, Esquire
entered his appearance on behalf of both
[Appellants]. On the same day, he filed a Petition to
Open Default Judgment. In that petition,
[Appellants] claimed that they never received the
Complaint. [The trial court] denied the Petition to
Open Default Judgment on March 27, 2014.
The assessment of damages hearing was
rescheduled and held on May 19, 2014. … [Stone]
presented uncontested evidence of $51,200 in lost
wages and $11,520 in outstanding medical bills.
After hearing evidence, [the trial court] awarded
[Stone] $123,000.
On June 9, [2014,] [Appellants] filed a post-
verdict motion which sought a new trial or, in the
alternative, remittitur.[2] In support of a new trial,
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2
We note this post-trial motion was untimely filed. See Pa.R.C.P.
227.1(c)(2) (providing post-trial motions must be filed within ten days after
the decision in a bench trial). However, the motion was filed within 30-days
after the trial court entered its assessment of damages, Stone did not object
to its untimeliness, and the trial court addressed the merits contained
therein. Therefore, we treat this as the trial court implicitly granting leave to
file the post-trial motion. See Millard v. Nagle, 587 A.2d 10, 12 (Pa.
Super. 1991) (noting that it is within the trial court’s discretion to address
the merits of an untimely post-trial motion if the opposing party does not
object), affirmed, 625 A.2d 641 (Pa. 1993) (per curiam). We will not review
this exercise of the trial court’s discretion, and we address the merits of this
case. See id. (explaining the trial court’s decision to address untimely post-
trial motions “should not be subject to review by this court, and we should
go on to consider the issues contained in these motions on their merits, as
did the trial court[]”); accord Kurtas v. Kurtas, 555 A.2d 804, 806 (Pa.
1989).
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[Appellants] claimed the [trial court] committed
prejudicial error when it denied the Petition to Open
Default Judgment. [Appellants] argued that there
had been improper service.
The post-verdict motion was not verified by
any [Appellant]. In a single paragraph of the post-
verdict motion, Counsel for [Appellants] alleged
various facts in support of a remittitur. None of
these facts were offered into evidence during the
May 19[, 2014] hearing. [Appellants’] Counsel
alleged that the only possible part that could have
fallen off of the vehicle was a very small exhaust tip,
thereby suggesting that [Stone’s injury claims were
fraudulent. [Appellants’] Counsel also alleges that
[Woodard] was unaware of anything falling off his
vehicle. He further alleges that [Stone’s] own
negligence contributed to the accident.
Furthermore, [Appellants’] Counsel alleges that
[Stone] told [] Woodard that he was on the phone
with his girl friend [sic] and was not paying attention
at the time of the accident.
By Order dated August 21, 2014, [and entered
August 28, 2014,] [the trial court] denied
[Appellants’] post-trial motion. It is this Order from
which [Appellants] have appealed.[3]
Trial Court Opinion, 2/4/15, at 1-3 (footnotes omitted).
On appeal, Appellants present the following three issues for our
review.
1. Did the trial court err by refusing to strike the
judgment where the record reflects a fatal defect in
the procedural aspects of taking a default judgment
because the procedure does not conform to Phila.
Civ. R. 430.1(B) and/or Pa.R.C.P. [] 440. Service of
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3
Appellants and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Legal Papers Other than Original Process, making the
entry of judgment void ab initio?
2. Did the trial court err in denying a petition to open
default and failing to consider all three criteria for
opening a default where numerous meritorious
defenses to the allegations where [sic] contained [in]
[Appellants’] Answer to [Stone’s] Complaint, where
[Appellants] provided a reasonable explanation for
failing to file a timely responsive pleading, and
[Appellants], through present counsel, promptly filed
a petition to open default?
3. Did the trial court err[] in denying the petition to
open default judgment by failing to consider the
equities of the matter, the prejudice to [Appellants]
if the petition to open was denied and whether
[Stone] would suffer any prejudice if the petition to
open default was granted?
Appellants’ Brief at 4.
In Appellants’ first issue on appeal, they contend that the default
judgment should be stricken.4 We review a petition to strike a default
judgment according to the following standard.
An appeal regarding a petition to strike a
default judgment implicates the Pennsylvania Rules
of Civil Procedure. Issues regarding the operation of
procedural rules of court present us with questions of
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4
Appellants did not present a motion to strike the default judgment as void
to the trial court. However, a motion to strike a void judgment is not
waivable and can be raised for the first time on appeal. See Mother’s
Rest. Inc. v. Krystkiewicz, 861 A.2d 327 (Pa. Super. 2004) (explaining
“an individual may even seek to strike a void judgment after a trial court has
previously denied his/her petition to open the same judgment. … [O]ur Court
has permitted litigants to attack other void decrees for the first time on
appeal[]”) (citations omitted).
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law. Therefore, our standard of review is de novo
and our scope of review is plenary.
A petition to strike a judgment is a common
law proceeding which operates as a demurrer to the
record. A petition to strike a judgment may be
granted only for a fatal defect or irregularity
appearing on the face of the record. [A] petition to
strike is not a chance to review the merits of the
allegations of a complaint. Rather, a petition to strike
is aimed at defects that affect the validity of the
judgment and that entitle the petitioner, as a matter
of law, to relief. A fatal defect on the face of the
record denies the prothonotary the authority to enter
judgment. When a prothonotary enters judgment
without authority, that judgment is void ab initio.
When deciding if there are fatal defects on the face
of the record for the purposes of a petition to strike a
[default] judgment, a court may only look at what
was in the record when the judgment was entered.
Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1267-
1268 (Pa. Super. 2015) (internal citations and quotation marks omitted).
Herein, Appellants contend that the judgment should be stricken as
void because Stone did not comply with Philadelphia County Local Rule of
Civil Procedure 430.1(B) or Pennsylvania Rule of Civil Procedure 440.
Specifically, Appellants’ analysis of this issue is confined to the following
sentence in their appellate brief, “[Stone’s] counsel never served the two
[Appellants] separately with any papers including the complaint and never
sent each defendant a singular copy of any of the legal papers.” Appellants’
Brief at 17.
The rules of civil procedure applicable to this case are Philadelphia
County Rule of Civil Procedure 430.1, Pennsylvania Rule of Civil Procedure
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424, and Pennsylvania Rule of Civil Procedure 440. Rule 430.1 provides as
follows.
Rule 430.1. Alternate Service
(A) Right of Service. Pursuant to Pa.R.C.P. No.
430, the plaintiff has the right of service in such
manner as the Court by special Order shall direct in
cases where service cannot otherwise be made.
(B) Procedure. When a return of “Not Found” or its
equivalent has been made after more than one
attempt to make service by the Sheriff or where the
first return of “Not Found” indicates that further
attempts at personal service would not be
successful, the plaintiff’s counsel may request an
order permitting service of the complaint by regular
mail to the defendant’s last known address by filing
an affidavit ….
Phila.Civ.R. 430.1(A)-(B). Rule 424, which governs the service of process
on corporations, provides as follows.
Rule 424. Corporations and Similar Entities
Service of original process upon a corporation or
similar entity shall be made by handing a copy to
any of the following persons provided the person
served is not a plaintiff in the action:
(1) an executive officer, partner or trustee of the
corporation or similar entity, or
(2) the manager, clerk or other person for the time
being in charge of any regular place of business or
activity of the corporation or similar entity, or
(3) an agent authorized by the corporation or similar
entity in writing to receive service of process for it.
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Pa.R.C.P. 424. Additionally, Rule 440, which sets for the procedure for
service of other legal papers, states, in relevant part, as follows.
Rule 440. Service of Legal Papers Other than
Original Process
(a)(1) Copies of all legal papers other than original
process filed in an action or served upon any party to
an action shall be served upon every other party to
the action. …
…
(2)(i) If there is no attorney of record, service
shall be made by handing a copy to the party
or by mailing a copy to or leaving a copy for
the party at the address endorsed on an
appearance or prior pleading or the residence
or place of business of the party ….
(ii) If such service cannot be made, service
shall be made by leaving a copy at or mailing a
copy to the last known address of the party to
be served.
(b) Service by mail of legal papers other than
original process is complete upon mailing.
Pa.R.C.P. 440(a)-(b). “Due process, reduced to its most elemental
component, requires notice.” PNC Bank, N.A. v. Unknown Heirs, 929
A.2d 219, 230 (Pa. Super. 2007) (citation omitted). “The adequacy of this
notice, as applied to substituted service, depends upon whether it is
reasonably calculated to give the party actual notice of the pending litigation
and an opportunity to be heard.” Id. (citations omitted).
Herein, Stone filed a motion for alternative service pursuant to
Philadelphia Local Rule 430.1. In the accompanying affidavit, counsel for
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Stone explained that the Delaware County Sheriff’s Department attempted
to serve the complaint on Appellants at their last known address, 307 North
Chester Pike, Glenolden, PA 19036, but the return of service affidavits
indicated there was “no response at door.” Further, Stone stated that the 4
Rides website provided that was the address for the business and also
indicated that Woodard was the corporation’s contact at that address. Stone
also verified that neither defendant had a change of address on file with the
U.S. Postal Service. Accordingly, Stone requested the trial court to enter an
order directing service via first-class mail addressed to 4 Rides and Woodard
at 307 North Chester Pike.
On October 18, 2013, the trial court granted Stone’s motion for
alternative service. On November 14, 2013, Stone filed an affidavit of
service, indicating that he mailed a time-stamped copy of the complaint to 4
Rides and Woodard by certified and regular mail at 307 North Chester Pike.
The affidavit of service further stated that the certified mail was unclaimed
by Appellants, but the first-class mail copy was not returned to Stone.
Contrary to Appellants’ argument, there is no defect on the face of the
record with regard to service of the complaint because the trial court
permitted alternative service, and Stone accomplished service by first-class
mail in compliance with the trial court’s order. See Phila. Civ. R. 430.1;
Pa.R.C.P. 424. Moreover, the trial court reasonably calculated the
alternative service to give Appellants actual notice of the pending
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proceedings and an opportunity to be heard. See PNC Bank, supra.
Therefore, Appellants’ argument that the complaint was not properly served
is meritless, and Appellants have not demonstrated a fatal defect on the face
of the record. See Green Acres, supra.
Likewise, Stone served both Appellants with notice of intention to take
default, and the praecipes to enter default judgment, at 307 North Chester
Pike. The trial court found that Appellants received actual notice of all the
filings in this case as follows.
[Stone’s] Complaint, the Notice of Intent to Enter
Default Judgment, the Notice of Default Judgment,
and the first Notice of the Assessment of Damages
hearing were all sent to [Appellants’] proper
Glenolden address. [Appellants] knew of the
scheduled trial by notice sent to that same address.
He appeared for the first time in the case at the
February 3, 2014 assessment of damages hearing.
The Glenolden address was accurate.
Trial Court Opinion, 2/4/15, at 4. The record supports the trial court’s
determination. Moreover, we note that Woodard was the agent listed on the
4 Rides website. As such, mailing a copy of the complaint and all other
pleadings to him in both his individual capacity and as an agent for 4 Rides
was sufficient to provide notice to both Appellants. See Pa.R.C.P. 424.
Further, on December 13, 2013, Stone filed a certification of service stating
that he had served the notice of intent to enter default judgment on both 4
Rides and Woodard at 307 North Chester Pike on December 3, 2013.
Thereafter, on December 17, 2013, Stone filed a separate praecipe to enter
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default judgment as to each Appellant, accompanied by a certification of
service verifying that he independently served each Appellant at 307 North
Chester Pike. That same day, the prothonotary entered judgment in favor of
Stone and against each Appellant separately. As such, there are no fatal
defects on the face of the record, and Appellants are not entitled to relief on
their motion to strike. See Green Acres, supra.
In their second and third issues on appeal, Appellants contend that the
trial court erred in denying their petition to open. The trial court entered the
order denying Appellants’ petition to open on March 27, 2014. Pursuant to
Pennsylvania Rule of Appellate Procedure 311(a)(1), that interlocutory order
was immediately appealable as of right. Pa.R.A.P. 311(a)(1). However,
Appellants did not immediately appeal the denial of the petition to open.
Nonetheless, Rule 311(g)(1)(i) provides that the failure to immediately
appeal an order denying a petition to open does not constitute waiver, “and
the objection may be raised on any subsequent appeal in the matter from a
determination on the merits.” Id. at 311(g)(1)(i). Consequently, we
address Appellant’s second and third issues asserting that the trial court
erred in denying their petition to open.
We review an appeal from an order denying a petition to open under
the following standard.
A petition to open a default judgment is an appeal to
the equitable powers of the [trial] court. The
decision to grant or deny a petition to open a default
judgment is within the sound discretion of the trial
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court, and we will not overturn that decision absent
a manifest abuse of discretion or error of law.
…
Ordinarily, if a petition to open a judgment is to be
successful, it must meet the following test: (1) the
petition to open must be promptly filed; (2) the
failure to appear or file a timely answer must be
excused; and (3) the party seeking to open the
judgment must show a meritorious defense ….[5] In
making this determination, a court can consider facts
not before it at the time the judgment was entered.
Green Acres, supra at 1270 (citations omitted).
The trial court denied Appellants’ petition to open on the basis that the
petition was not promptly filed. Trial Court Opinion, 2/4/15, at 4 (noting
that the petition was filed 64 days after the entry of judgment); see also
Pa.R.C.P. 237.3(b) (providing a petition to open filed within ten days is
timely); Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super.
2009) (noting that generally one month or less between the entry of default
judgment and the filing of a petition to open typically meets the time
requirement for “prompt filing”). Additionally, the trial court found
Appellants provided no explanation for the delays in filing either the petition
to open or the answer to the complaint. Id. On appeal, Appellants contend
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5
A trial court must grant a petition to open that is filed within ten days of
the entry of judgment and presents a proposed answer containing a
meritorious defense. Pa.R.C.P. 237.3(b). However, herein, there is no
dispute that Lloyd did not file the petition to open within ten days.
Accordingly, he must meet these three requirements to open the judgment.
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that they alleged meritorious defenses in the petition to open and that
opening the default judgment will not prejudice Appellees. However,
Appellants still do not assert that the trial court abused its discretion or
erred as a matter of law in finding that the petition to open was not timely
filed or that the failure to file a timely answer was excusable. Even if
Appellants presented a meritorious defense, Appellants did not timely file the
petition or offer an excuse for failing to file a timely answer to the complaint.
Therefore, Appellants did not meet two of the requirements necessary to
open a judgment, and we discern no manifest abuse of discretion or an error
of law in the trial court’s decision to deny Appellants’ petition to open. See
Green Acres, supra. Accordingly, Appellants second and third issues on
appeal are meritless. See id.
Based on the foregoing, we conclude that Appellants’ petition to strike
is meritless. See Green Acres, supra at 1267-1268. Further, the trial
court did not manifestly abuse its discretion or err as a matter of law by
denying Appellants’ petition to open. See id. at 1270. Accordingly, we
affirm the trial court’s order entered August 28, 2014, denying Appellants’
motion for post-trial relief with regard to the assessment of damages.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2016
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