Citizens Bank of PA. v. Rim, D. ( 2017 )

J-A04028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CITIZENS BANK OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONG M. RIM, AS ADMINISTRATOR
OF THE ESTATE OF YOUNG WOON RIM,
DECEASED
Appellant No. 760 EDA 2016
Appeal from the Order Dated January 20, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2015-03289
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY SOLANO, J.: FILED SEPTEMBER 08, 2017
Appellant Dong M. Rim, as administrator of the estate of Young Woon
Rim, appeals from the order denying his petition to open the default
judgment entered in the mortgage foreclosure action initiated by Appellee
Citizens Bank of Pennsylvania. We affirm.
In 2011, Young Woon Rim mortgaged a residential property located in
Ambler, Pennsylvania (“Ambler property”), for a principal amount of
$228,500. Trial Ct. Op., 8/19/16, at 1. The Ambler property was later
encumbered by a second mortgage owned by Nationstar Mortgage, LLC.
Young Woon Rim died in June 2014, and in July 2014, Dong M. Rim
(“Rim”), was qualified as the administrator of the estate. Id. at 2. In his
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*
Retired Senior Judge assigned to the Superior Court.
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petition for probate and grant of letters testamentary, Rim verified his
address as 2200 Arch Street, #907-08, Philadelphia, PA 19103 (“2200 Arch
Street”). Id.
On January 6, 2015, as the Ambler property loan had fallen into
default,1 Citizens sent an Act 91 notice to Rim.2 The notice was sent to 2200
Arch Street via certified mail. Trial Ct. Op. at 2.3 Citizens received no
response to the Act 91 notice.
On February 20, 2015, Citizens initiated a mortgage foreclosure action.
Trial Ct. Op. at 2. On March 19, 2015, Citizens filed an affidavit stating that
the complaint and notice to defend4 were served upon Rim on March 17,
2015, at 2200 Arch Street. Aff. of Service, 3/19/15. Attached to the affidavit
was a copy of the notarized return of service.5 The return states that Rim
was served at 2200 Arch Street on March 17, 2015, at 9:25 AM. It specifies
that the process documents were given to the “Manager/Clerk of place of
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1
According to the complaint, the mortgage fell past due in August 2014.
Compl., 2/20/15, at ¶ 12.
2
The Homeowner’s Emergency Mortgage Act, “Act 91,” provides, among
other things, that a homeowner must be notified that his or her mortgage is
in default and how to contact the lender prior to the commencement of a
foreclosure action. See generally 35 P.S. §§ 1680.402c to 1680.403c.
3
Citizens also sent the Act 91 notice to two other known heirs of Young
Woon Rim at their addresses, and a fourth notice to the Ambler property
addressed to “[a]ny and all unknown heirs.” Trial Ct. Op. at 2.
4
A notice to defend advises a defendant that he or she has twenty days to
respond to the complaint. See Pa.R.C.P. 1018.1.
5
A “return of service” or “return of no service” specifies whether service of
process was successfully made upon a defendant. See Pa.R.C.P. 405.
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lodging in which Defendant resides.” It does not state the name of the
person to whom the documents were given. The return also states that on
March 12, 2015, the server had attempted to serve Rim at the same
location, but that “As per the Concierge the Defendant was not home.”
Citizens received no response to the complaint and notice to defend.
On April 8, 2015, Citizens sent Rim a notice of its intent to seek entry
of a default judgment based on Rim’s failure to plead to the complaint. Trial
Ct. Op. at 3.6 The notice was sent to 2200 Arch Street via first class regular
mail. See Praecipe to Enter Default J., 4/23/15, at ¶ 4. Citizens received no
response to the notice of its intent to seek a default judgment.
On April 23, 2015, Citizens filed a praecipe to enter a default
judgment. Trial Ct. Op. at 3. Judgment was entered against Rim in the
amount of $239,453.34, plus interest and the costs of suit. Id.
On June 3, 2015, Citizens filed a praecipe for a writ of execution,
requesting a sheriff’s sale of the Ambler property, which was granted. On
June 16, 2015, Citizens attempted to serve a notice of sale upon Rim at
2200 Arch Street, and was informed by security personnel that Rim was no
longer living there. Citizens also mailed a copy of the notice of sale to the
2200 Arch Street address.
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6
Notice must be given to the defendant and his or her attorney at least ten
days before the plaintiff files a praecipe for entry of a default judgment. See
Pa.R.C.P. 237.1.
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Meanwhile, on June 5, 2015, Nationstar filed a complaint in mortgage
foreclosure against Rim for the same Ambler property.
On September 10, 2015, Rim’s counsel entered an appearance on the
record. Trial Ct. Op. at 3. On October 13, 2015, Rim filed a petition 7 to open
the default judgment. Id. The petition stated, in pertinent part:
2. Service of the Complaint was made by the sheriff’s
department on March 17, 2015[,] on a “manager/clerk or place
of lodging in which Defendant resides” at the location of 2200
Arch Street, Philadelphia, PA 19103. A true and correct copy of
the [Return of Service] is attached hereto as Exhibit “B.”
3. [Rim] no longer resides at 2200 Arch Street, Philadelphia, PA
19103 nor was he personally served with a copy of the
Complaint at that address.
4. Further, [Rim] does not know who was actually served and
referenced in the [Return of Service] as the [Return of Service]
does not contain a name of the individual served.
5. Consequently, [Rim] has never been properly served with the
Complaint, Praecipe, or default filings.
6. Had [Rim] been properly served, [Rim] would have filed a
response disputing [Citizens’] claims and asserting that the
amounts claimed to be due were incorrect.
7. [Rim] first became aware of this suit upon the subsequent
[foreclosure] action in Montgomery County [filed by Nationstar].
...
9. [Rim] has acted expeditiously in attempting to open the
default in this matter, as [Rim] was improperly served and as a
result was not aware of the litigation until after the Judgment
had been entered.
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7
Rim’s petition was styled as a motion rather than a petition. As the relief
sought is typically by petition, see Pa.R.C.P. 237.3, we will refer to Rim’s
motion as a petition.
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10. [Rim]’s conduct was not intended to cause unnecessary
delay. Rather, he did not respond to the Complaint because it
was not properly served with any of the necessary paperwork.
Mot., 10/13/15, at ¶ 2-10.
The court issued a Rule to Show Cause on October 21, 2015. Trial Ct.
Op. at 3-4. The order provided Citizens with twenty days to respond to the
petition to open, declared that the petition to open would be decided
according to Pa.R.C.P. 206.7,8 and instructed that discovery be completed
within sixty days of Citizens’ answer. Id.
Citizens filed a timely response and memorandum of law to the
petition to open on November 10, 2015. Trial Ct. Op. at 4. Citizens denied
that the service of the complaint and notice to defend had been improper
and denied that Rim was unaware of the instant foreclosure action until the
filing of the Nationstar foreclosure action. Resp., 11/10/15, at ¶ 2-7. Citizens
pointed out that in Rim’s petition to open, Rim did not technically claim that
he was not a resident of 2200 Arch Street on March 17, 2015, the time
that service was made there. See Mem. of Law, 11/10/15, at 6-7
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8
This rule governs the procedure after the issuance of a rule to show cause:
If an answer is filed raising disputed issues of material fact, the
petitioner may take depositions on those issues, or such other
discovery as the court allows, within the time set forth in the
order of the court. If the petitioner does not do so, the petition
shall be decided on petition and answer and all averments of fact
responsive to the petition and properly pleaded in the answer
shall be deemed admitted for the purpose of this subdivision.
Pa.R.C.P. 206.7(c).
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(unpaginated). Citizens attached multiple exhibits in support of its
contention that Rim was in fact a resident of 2200 Arch Street on March 17,
2015, including the estate dockets listing 2200 Arch Street as Rim’s address
on December 2014 and November 2015; the certified mail receipt, dated
January 6, 2015, for the Act 91 Notice, which displays Rim’s signature; the
Philadelphia Office of Property Assessment listing Rim as residing there as of
February 19, 2015; the return of service from March 17, 2015, which
indicated that on March 12, 2015, personnel at 2200 Arch Street informed
that Rim was not “home” on that date; and a certification from the
Postmaster of Philadelphia dated July 15, 2015, stating that there was no
change of Rim’s address from 2200 Arch Street.
Citizens also denied that Rim promptly filed his petition to open. Resp.,
11/10/15, at ¶ 6-10. Citizens argued that even if Rim did not receive actual
notice of the suit until the Nationstar action, the Nationstar action was filed
on June 5, 2015, well before Rim filed the petition to open. See Mem. of
Law, 11/10/15, at 6 (unpaginated). Citizens’ counsel also averred that Rim
had contacted her office by telephone on July 16, 2015, after someone from
2200 Arch Street had hand-delivered to him the June 16, 2015 notice of the
impending sheriff’s sale of the Ambler property. Id. at 3. According to
Citizens’ counsel, Rim indicated that he had recently moved out of the
building. Counsel sent Rim a copy of the notice of sale via e-mail and Rim
acknowledged receipt; a copy of the e-mail exchange was attached to
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Citizens’ response to the petition to open. See Resp., Ex. B.9 Despite this
July 2015 contact with Rim, Rim’s counsel did not enter an appearance until
September 10, 2015, and the petition to open was not filed until October 13,
2015. Citizens argued that under these facts, the filing of the petition to
open should not be considered timely. Mem. of Law, 11/10/15, at 3, 6.
Finally, Citizens denied Rim’s assertion that he had a meritorious
defense to the mortgage foreclosure action, specifically a challenge to the
amounts due on the mortgage. Resp., 11/10/15, at ¶ 6-7; Mem. of Law,
11/10/15, at 8-9 (citing Landau v. Western Pennsylvania National
Bank, 282 A.2d 335, 340 (Pa. 1971), for the proposition that “[t]he entry of
summary judgment is appropriate even if the mortgagor has not admitted in
his answer that the total amount of the indebtedness as pled in the
foreclosure complaint is correct”). Citizens also complained that Rim had not
attached to his petition to open a verified copy of his prospective answer to
the mortgage foreclosure action setting forth his defenses, in contravention
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9
Counsel also requested a new mailing address from Rim, which Rim
provided; however, when Citizens attempted to send the notice of sale
there, it was returned. Citizens attempted service at the new address on
August 29, 2015, but the return of no service stated that service was not
possible because the building at that address was “vacant and in the process
of being rehabilitated.” Citizens attempted to verify this new address with
the postmaster on August 27, 2015, but the postmaster responded on
September 3, 2015, that no such address existed.
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of Pa.R.C.P. 237.3.10 Mem. of Law, 11/10/15, at 8. According to Citizens,
this flaw was fatal to Rim’s petition.
Neither party conducted discovery regarding the allegations in the
petition to open. Subsequently, on January 20, 2016, following argument,
the court denied the petition. Trial Ct. Op. at 4. Rim filed a timely notice of
appeal and has raised the following issues:
1. Whether the trial court erred in denying [Rim]’s Petition to
Open the Default Judgment because the Complaint was not
properly served on [Rim] pursuant to the Pennsylvania Rules of
Civil Procedure[.]
2. Whether the trial court erred in [] determining that [Citizens]
properly made service upon [Rim] in the manner proscribed by
Pa.R.C.P. 402, by handing a copy of the complaint at the former
residence of [Rim] to the clerk or manager of the apartment
house.
3. Whether the trial court erred in denying [Rim]’s Petition to
Open because [Rim] had a reasonable excuse for its delay in
filing the petition, as he did not become aware of the underlying
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10
The relevant portion of the rule states:
(a) A petition for relief from a judgment . . . of default entered
pursuant to Rule 237.1 shall have attached thereto a copy of the
complaint, preliminary objections, or answer which the petitioner
seeks leave to file.
(b) . . .
(2) If the petition is filed within ten days after the entry of
a default judgment on the docket, the court shall open the
judgment if one or more of the proposed preliminary
objections has merit or the proposed answer states a
meritorious defense.
Pa.R.C.P. No. 237.3.
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matter until [he] was put on notice of a second mortgage
foreclosure action[,] since he was not served.
4. Whether the trial court erred in denying [Rim]’s Petition to
Open because [Rim] had a meritorious defense to the allegations
in the underlying complaint.
Rim’s Brief at 3 (suggested answers omitted).
Our standard of review follows:
When reviewing a trial court’s disposition of a petition to open
a default judgment, the appellate court must examine the entire
record for any abuse of discretion, reversing only where the trial
court’s findings are inconsistent with the clear equities of the
case. Moreover, this Court must determine whether there are
equitable considerations which require that a defendant, against
whom a default judgment has been entered, receive an
opportunity to have the case decided on the merits. Where the
trial court’s analysis was premised upon record evidence, where
its findings of fact were deductions from other facts, a pure
result of reasoning, and where the trial court made no credibility
determinations, this Court may draw its own inferences and
arrive at its own conclusions.
Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1208-09 (Pa. Super.
1993) (citations omitted).
Rim claims that the trial court should have granted his petition to open
because service was defective and the court therefore lacked jurisdiction to
enter judgment against him. Rim’s Brief at 11. He claims that service was
improper for two reasons: (1) the person to whom the process documents
were given was unidentified by name in the return of service, and (2) Rim
did not reside at 2200 Arch Street on March 17, 2015. Id. Rim contends that
although his petition did not facially state the latter assertion, it is the only
logical interpretation of the petition, in which Rim verified that he has never
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received process and that he no longer resides at 2200 Arch Street. See id.at 12 n.4; Rim’s Reply Brief at 4, 7-9. Rim states that he was unable to
conduct discovery to support his contentions, “such as taking the deposition
of the person allegedly served[,] because they were not identified [in the
return of service].” Id. at 7. However, Rim argues that the verifications
made in his petition to open should be considered conclusive evidence. Id.
Rim also attaches to his brief to this Court the copy of a residential
lease. The lease purports to rent the premises at issue, 2200 Arch Street,
Unit 907-08, to another person from August 1, 2014, through July 31, 2016.
Rim contends that this Court may consider the lease as evidence because,
when deciding a petition to open, “a court can consider facts not before it at
the time the judgment was entered.” Rim’s Reply Brief at 10 (citing
Mother’s Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 336 (Pa. Super.
2004) (en banc)). Rim claims that the combination of the factual
verifications made in his petition and the lease he now presents to this Court
“undermine and contradict” Citizens’ allegation that he received proper
service at 2200 Arch Street. Rim’s Brief at 12, 16.
Furthermore, Rim claims that he did not delay in filing his petition to
open. Rim contends that he was not aware of the instant foreclosure matter
until the filing of the Nationstar action on June 5, 2015. Rim’s Brief at 21. 11
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11
Rim asserts that the earliest evidence that he had notice of the instant
action is as of July 16, 2015, although he does not actually allege that he did
not know of the action until that date. See Rim’s Brief at 21.
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Rim claims that the lapse between this date and the filing of his petition to
open, a total of 4 months and 8 days, is excused by the time it took him to
contact counsel for Citizens, acquire his own counsel, and file the petition.
Id. He claims that “a period of just over three months[12] should be
considered timely in a mortgage foreclosure action in align[ment] with past
decisions and in equity considering the valuable property at stake.” Id. at
23.
Finally, Rim contends that he has meritorious defenses to the
mortgage foreclosure action. He claims these defenses “include but are not
limited to being properly served, challenging the averment of default,
denying receiving the Act 91 notice, and denying whether [Citizens] hold[s]
the original [mortgage] note.” Rims’ Brief at 25-26. Although he did not
attach a copy of a proposed answer or proposed preliminary objection to his
petition to open, Rim claims that this flaw is not fatal because this would be
an “overly strict” interpretation of Rule 237.3. Id. at 26-27 (citing Stauffer
v. Hevener, 881 A.2d 868, 869 (Pa. Super. 2005)).
Our analysis of whether the trial court erred or abused its discretion in
denying the petition to open is guided by the following:
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
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12
As noted above, the petition to open was filed approximately three
months after Rim contacted Citizens’ counsel via e-mail, which is the earliest
“evidence” of notice of the instant petition.
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judgment must show a meritorious defense. However, where
the party seeking to open a judgment asserts that service
was improper, a court must address this issue first before
considering any other factors. If valid service has not been
made, then the judgment should be opened because the court
has no jurisdiction over the defendant and is without power to
enter a judgment against him or her. In making this
determination, a court can consider facts not before it at the
time the judgment was entered.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa.
1997) (citations omitted, emphasis added); accord Century Sur. Co. v.
Essington Auto Ctr., LLC, 140 A.3d 46, 54 (Pa. Super. 2016). “If,
however, the court concludes that proper service was made, it must then
consider all three parts of the tripartite test in the light of all of the
circumstances and equities of the case before deciding whether to open the
judgment.” Am. Exp. Co. v. Burgis, 476 A.2d 944, 951 (Pa. Super. 1984).
If a petition to open a default judgment fails to fulfill any one prong of this
test, then the petition must be denied. Myers v. Wells Fargo Bank, N.A.,
986 A.2d 171, 178 (Pa. Super. 2009); see also McFarland v. Witham, 544
A.2d 929, 930–31 (Pa. 1988) (failure to provide justifiable explanation for
failing to respond to complaint in a timely manner was sufficient basis to
deny petition); US Bank N.A. v. Mallory, 982 A.2d 986, 996–97 (Pa.
Super. 2009) (affirming denial of petition to open without needing to analyze
third prong of test).
Rule 402 of the Pennsylvania Rules of Civil Procedure provides that
original process may be served by handing a copy “at the residence of the
defendant to the clerk or manager of the . . . apartment house . . . at which
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he resides.” Pa.R.C.P. 402(a)(2)(ii). Rule 405 mandates that the return of
service “shall set forth the date, time, place and manner of service, the
identity of the person served and any other facts necessary for the court to
determine whether proper service has been made.” Pa.R.C.P. 405(b). But
where a return of service fails to specifically identify by name the person
served, that failure alone does not necessarily invalidate the service. See
Pincus v. Mut. Assur. Co., 321 A.2d 906, 910 (Pa. 1974); accord
Podolak v. Artisan’s Valve Repair, Inc., 470 A.2d 567, 568 (Pa. Super.
1983); see also Miller v. Carr, 292 A.2d 423, 425 (Pa. Super. 1972).13
Whether process was delivered to the appropriate person and place
under Rule 402 is dispositive on the issue of whether service was sufficient
to invoke the trial court’s jurisdiction. See Anzalone v. Vormack, 718 A.2d
1246, 1248 (Pa. Super. 1998). A defendant may attack service with an
allegation that the person served was not the actual clerk or manager of the
residence or that the residence served was not the actual residence of the
defendant. Id. at 1249. The defendant bears the burden to prove such
allegations through depositions or extrinsic evidence. Id.; see also Burgis,
476 A.2d at 950. (“[A]s to whether sufficient evidence was produced to
establish that the ‘adult’ [indicated in the return of service] was actually in
charge of [the defendant’s] residence, we note that it is [the defendant’s]
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13
Failure to identify an individual by name does not render a return of
service defective, and an actual defect in a return of service would not
ordinarily divest a court of jurisdiction if the fact of service could be
established. See Cintas, 700 A.2d at 918.
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burden to prove otherwise. Here, [the defendant] has fallen short of
establishing such a negative”); Am. Vending Co. v. Brewington, 432 A.2d
1032, 1035 (Pa. Super. 1981) (service deemed proper where the record was
devoid of any extrinsic evidence to buttress the defendants’ testimony that
the “adult female” indicated in the return of service was not in charge of
defendants’ residence).
As a prefatory matter, we address Rim’s request that this Court
consider, for the first time on appeal, a lease that purportedly establishes he
did not reside at 2200 Arch — evidence which was not presented to the trial
court. Rim misunderstands the import of our decisions stating that “a court
can consider facts not before it at the time the judgment was entered.” See
Rim’s Reply Brief at 10 (quoting Mother’s Rest., Inc., 861 A.2d at 336);
see also Cargitlada v. Binks Mfg. Co., 837 A.2d 547 (Pa. Super. 2003) (in
resolving a petition to open, the trial “court may consider matters dehors the
record”). Those decisions do not authorize Rim to introduce, for the very first
time on appeal, evidence that was never presented to and made part of the
trial court’s record; rather, they confirm that the trial court’s scope of
review over a petition to open a judgment is not limited to the record that
existed at the time judgment was entered and that the trial court is
permitted to consider extra-record evidence in support of a petition to open.
See Cintas, 700 A.2d at 919 (a petition to open judgment is appropriate
where a party “seeks to challenge the truth of factual averments in the
record at the time judgment was entered”).
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In this case, the trial court would have been permitted to consider the
lease as evidence if it had been provided to that court in support of Rim’s
petition to open. But because the lease was not provided for consideration
by the trial court, we lack the authority to review it on appeal. See Temple
Univ. v. Zoning Bd. of Adjustment of Cheltenham Twp., 199 A.2d 415,
417 (Pa. 1964) (“appellant has violated the time-honored rule that evidence
not introduced in the court below cannot now be submitted on appeal.”);
see also Nevling v. Natoli, 434 A.2d 187, 188 n.1 (Pa. Super. 1981). We
therefore will not consider the lease.
Putting the lease aside, we turn to whether the trial court correctly
considered the evidence of record. The trial court denied Rim’s petition to
open after concluding that service of the mortgage foreclosure complaint
was not defective. In doing so, it examined the allegations in the petition to
open and the averments pleaded by Citizens in the response, pursuant to
Rule 206.7. First, the court found that Rim’s petition admitted that “[s]ervice
of the [c]omplaint was made . . . on March 17, 2015[,] on a ‘manager/clerk
[of] place of lodging in which [Rim] resides,” see Mot., 10/13/15, at ¶ 1,
and that this was a proper form of service under Pa.R.C.P. 402(a)(2)(ii). See
Trial Ct. Op. at 9. Next, the court noted that the petition to open does not
actually allege that Rim did not reside at 2200 Arch Street on March 17,
2015, the date of service. Id. at 6. The trial court also found that —
. . . despite being provided the opportunity to conduct discovery
to support his claim, which was refuted by [Citizens’] Response,
[Rim] did not. Absent creating such a record, [Citizens’
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r]esponse that service was made on [Rim] at his residence is
deemed admitted. See Pa. R.C.P. 206.7(c).
...
[O]nce [Citizens] timely filed an Answer to [Rim]’s Petition, the
burden shifted to [Rim] to rebut [Citizens’] averments of fact
with the requisite pleading and/or discovery necessary.
...
[Rim] for his part inexplicably neglected to avail himself of the
opportunity to take depositions on the issue of service and/or
other such discovery to attempt to rebut any of [Citizens’]
averments of fact. Thus, in accordance with Pa. R.C.P. 206.7,
the [c]ourt properly deemed admitted [Citizens’] averments that
it effectuated service of original process upon [Rim] under the
applicable rules of civil procedure. Based on [Rim]’s failure to
rebut [Citizens’] averments with the requisite evidence and
guided by Pa. R.C.P. 206.7’s burden[-]shifting paradigm, the
Court properly determined that [Rim] was properly served the
Complaint on March 17, 2015, and lacked a reasonable
explanation or excuse for his default.
Id. at 8, 11, 12.14
We agree with the foregoing and discern no abuse of discretion by the
trial court. Citizens’ response made averments of material fact – namely that
2200 Arch Street was Rim’s residence on the date of service (despite Rim’s
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14
The trial court also concluded that because Rim was attacking the validity
of service, he should have filed a petition to strike the default judgment
rather than a petition to open. See Trial Ct. Op. at 6. However, Rim attacks
the factual averments in the return of service, rather than the validity of the
return on its face. Where, as here, “a party seeks to challenge the truth of
factual averments in the record at the time judgment was entered, then the
party should pursue a petition to open the judgment, not a petition to strike
the judgment.” Cintas, 700 A.2d at 919; see also Podolak, 470 A.2d at
568 n.2 (the answer to the question of whether the person served was
actually in charge of defendant’s place of business does not typically appear
on the face of the record and therefore provides grounds for opening a
default judgment rather than striking judgment).
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effort to skirt around this issue in his petition to open by claiming only that
he “no longer” lived there) and that the process documents were given to
the manager of that residence. Following that response, Rim failed to
conduct discovery or provide evidence to the trial court contradicting
Citizens’ averments of fact. Rim did not adduce any evidence attesting to his
actual residence on March 17, 2015.15 Nor did Rim attempt to depose the
process server or anyone at 2200 Arch Street who could have potentially
testified regarding whether the process documents were handed to the
wrong individual. Based on the record before it and the evidentiary burden
borne by Rim, see Anzalone, 718 A.2d at 1248, and Pa.R.C.P. 206.7(c),
the trial court correctly concluded that 2200 Arch Street was Rim’s actual
residence on March 17, 2015, that process was handed to the manager of
that address, and that service was not defective. See Burgis, 476 A.2d at
950; Brewington, 432 A.2d at 1035.
As we find that the trial court did not err in concluding that service was
proper and that it had jurisdiction to enter a default judgment against Rim,
we consider the merits of Rim’s petition to open within the three-factor
framework. See Burgis, 476 A.2d at 951. For ease of disposition, we begin
with the second factor, which requires that Rim explain his failure to file a
timely answer to the foreclosure complaint. See Cintas, 700 A.2d at 919.
“Whether an excuse is legitimate is not easily answered and depends upon
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15
Rim has yet to definitively identify his purported address on that date.
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the specific circumstances of the case.” Castings Condo. Ass’n, Inc. v.
Klein, 663 A.2d 220, 223-24 (Pa. Super. 1995) (citation omitted).
Rim’s only explanation is that he did not receive actual notice of the
instant foreclosure action until the Nationstar action was filed, which was
after the default judgment was entered against him. The trial court
concluded that Rim in fact received proper service in March 2015 and
therefore lacked a reasonable explanation or excuse for his failure to
respond. Trial Ct. Op. at 12. Because Rim has not supplied any record
evidence to establish the date by which he received actual notice of the
Citizens action, we agree with the trial court’s conclusion that Rim has not
stated a reasonable explanation or excuse.
As Rim has failed to establish that the trial court lacked jurisdiction or
provide a legitimate excuse for his failure to answer, we affirm the order of
the trial court denying Rim’s petition to open the default judgment. See
Myers, 986 A.2d at 178.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2017
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