Parker, W. v. Johnson, B. ( 2018 )

J-S85034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WILLIAM PARKER IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BARRY JOHNSON D/B/A FAB 5
ENTERTAINMENT, LLC
Appellant No. 1068 WDA 2017
Appeal from the Order June 30, 2017
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD 15-009524
BEFORE: BOWES, PANELLA, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 31, 2018
Appellant, Barry Johnson d/b/a Fab 5 Entertainment, LLC, appeals from
an order denying his motion to strike the judgment against him in the above
case. We affirm.
This is Appellant’s second appeal to this Court. The underlying action
began in May 2015, when Appellee, William Parker, sued Appellant for tortious
interference with contractual relations with regard to a signed management
agreement with a third party recording artist. Appellee initiated the case by
writ of summons. On June 10 and 11, 2015, the Allegheny County Sheriff
attempted without success to serve Appellant with process at his official
business address in Pittsburgh. On March 15, 2016, Appellee reissued the
writ of summons, and on the same date, Appellee served Appellant by
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personal service in Austin, Texas using the Travis County Constable. Both
Appellant and his attorney requested Appellee to file and serve a civil
complaint. On May 12, 2016, Appellee filed a complaint and sent a copy to
Appellant and his counsel. Appellant did not file an answer to the complaint.
On June 21, 2016, Appellee sent a ten-day notice of intent to enter
judgment by default to Appellant's counsel. Six days later, Appellant’s counsel
demanded that Appellee withdraw his suit. On July 7, 2016, Appellee filed a
praecipe for default judgment.
On August 30, 2016, Appellant filed a petition to strike or open
judgment. On September 16, 2016, the trial court denied Appellant’s petition.
On October 13, 2016, Appellant appealed to this Court.
In a memorandum entered on April 20, 2017, this Court affirmed the
order denying Appellant’s petition. We reasoned:
In his Petition to Strike the Default Judgment, Appellant claimed
that the Judgment against him was void because Appellee did not
properly serve him with the Writ of Summons or the Complaint.
The trial court rejected this claim, finding that Appell[ant]
requested service of the Complaint by email, and in doing so,
agreed to service by electronic means pursuant to Pa.R.C.P. No.
205.4(g).
Dissatisfied by this result, Appellant filed a Notice of Appeal and
court-ordered Rule 1925(b) Statement. In his Rule 1925(b)
Statement, Appellant challenged the trial court's conclusion with
respect to Appellant's Pa.R.C.P. No., 402 service of process, and,
for the first time, raised a challenge to the propriety of
Appellee's Rule 237.1 Notice of Intent to Enter Default Judgment.
In his Brief to this Court, Appellant has abandoned his claim of
error regarding Rule 402 service of process; instead he argues
only that the court erred in finding that Appellee provided him with
237.1 Notice prior to filing a Praecipe to Enter Default Judgment.
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Because Appellant raised this issue for the first time in his Rule
1925(b) statement, it is waived. Appellant is, thus, not entitled
to relief.
Parker v. Johnson, 1564 WDA 2017, at 4-5 (Pa. Super., Apr. 20, 2017)
(“Parker I”) (emphasis in original).
On June 13, 2017, Appellant filed a second petition to strike or open
judgment in the trial court. On June 30, 2017, the trial court denied the
petition on the basis of res judicata and collateral estoppel. On July 25, 2017,
Appellant filed a notice of appeal. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises one issue in this appeal: “Whether the Pa.R.C.P.
important notice must be served on a party and any attorney of record for the
prothonotary to have the power to enter a default judgment?” Appellant’s
Brief at 4. This presents us with a question of law for which our standard of
review is de novo and our scope of review is plenary. Skonieczny v. Cooper,
37 A.3d 1211, 1213 (Pa. Super. 2012).
In this appeal, Appellant argues that the trial court erred in denying his
petition to strike the judgment. He does not contend that the trial court should
have opened the judgment. Accordingly, we limit our review to whether the
trial court erred in denying Appellant’s petition to strike. “A petition to strike
a judgment operates as a demurrer to the record, and must be granted
whenever some fatal defect appears on the face of the record.” First Union
Nat. Bank v. Portside Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa.
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Super. 2003). “When deciding if there are fatal defects on the face of the
record for the purposes of a petition to strike a judgment, a court may only
look at what was in the record when the judgment was entered.” Cintas
Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 917 (Pa. 1997).
Importantly, “[a] petition to strike does not involve the discretion of the [trial]
court.” Id. at 919.
We hold that the trial court properly denied Appellant’s second petition
to strike, albeit on a different basis than the trial court. Wilson v. Plumstead
Tp. Zoning Hearing Bd., 936 A.2d 1061, 1065 n.3 (Pa. 2007) (appellate
court “may affirm on any ground”).
The trial court incorrectly denied Appellant’s second petition to strike on
the basis of res judicata and collateral estoppel. These doctrines “apply to bar
relitigation of claims or issues in a subsequent action that were subject to a
final judgment in a prior action.” Pollock v. National Football League,
171 A.3d 773, 781 (Pa. Super. 2017) (emphasis added). Instead, the trial
court should have denied Appellant’s second petition based on the law of the
case doctrine, which “exists to prevent a party from relitigating claims or
issues that have been resolved previously within the same action, either in
a prior appeal or by a judge of coordinate jurisdiction.” Id. (emphasis added).
In Appellant’s first appeal, we held that he waived his argument that Appellee
failed to serve him with a Rule 237.1 ten-day notice of intent to enter a default
judgment. Parker I, at 4-5. Since we resolved the ten-day notice issue
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against Appellant in Parker I, he cannot raise it again in his second petition
to strike (or in this appeal).
Even assuming Appellant could raise this issue again, it is devoid of
merit. Nothing on the face of the record at the time of entry of the default
judgment indicates that Appellee failed to serve the ten-day notice on
Appellant. For these reasons, the trial court properly denied Appellant’s
second motion to strike judgment.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2018
____________________________________________
1 Appellee requests that we sanction Appellant under Pa.R.A.P. 2744 for
dilatory conduct in taking this appeal. We decline to impose sanctions, but
we warn Appellant that any additional dilatory conduct might warrant
sanctions.
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