De Lage Landen Financial Serv., Inc. v. Feijo, G. ( 2018 )

J-A18011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DE LAGE LANDEN FINANCIAL SERVICES, IN THE SUPERIOR COURT
INC., OF PENNSYLVANIA
Appellee
v.
GLORIA FEIJO
Appellant No. 153 EDA 2018
Appeal from the Order Entered December 7, 2017
In the Court of Common Pleas of Chester County
Civil Division at No: 2016-10159-CT
BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY STABILE, J.: FILED DECEMBER 18, 2018
Appellant, Gloria Feijo, appeals pro se from the December 7, 2017 order
denying her petition to open a default judgment. We quash.
The record reveals that Appellee, De Lage Landen Financial Services,
Inc., filed a complaint on October 25, 2016 alleging that Appellant breached
an equipment lease agreement. Appellant never filed an answer, and a default
judgment was entered against her on January 24, 2017. Appellant filed a pro
se petition to open the judgment on May 19, 2017, and Appellee filed its
response on June 1, 2017. On June 23, 2017, Appellant filed a pro se reply
____________________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-A18011-18
and a proposed answer to Appellee’s complaint. The trial court denied the
motion on December 7, 2017, and this timely appeal followed.
On January 12, 2018, the trial court ordered Appellant to file and serve
on the judge a concise statement of matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b). The certified docket indicates that a copy of the order
was sent to all counsel and unrepresented parties on January 16, 2018.
Appellant filed a timely concise statement but failed to serve it on the trial
court in accord with Pa.R.A.P. 1925(b)(1) and the express terms of the trial
court’s order. Appellant’s failure to serve a copy of her Pa.R.A.P. 1925(b)
statement on the trial court results in waiver of the issues she would present
on appeal. Forest Highlands Community Ass’n v. Hammer, 879 A.2d
223, 228-29 (Pa. Super. 2005). We are therefore constrained to quash this
appeal. Were we to address the merits, however, we would affirm for the
reasons stated in the trial court’s Pa.R.A.P. 1925(a) opinion, filed on February
28, 2018. A copy of that opinion is attached.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/18
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Circulated 11/30/2018 03:07 PM
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DE LAGE LANDEN FINANCIAL IN THE COURT OF COMMON PLEAS
SERVICES, INC.
CHESTER COUNTY, PENNSYLVANIA
vs.
GLORIA FElJO
Fred August Nehr, Esquire, Attorney for Plaintiff.
Defendant, Pro se.
Defendant appeals from our Order dated December 6, 2017 and docketed
December 7, 2017 denying her Motion to Open or Vacate Default Judgment. We submit this
Opinion in accordance with Pa.R.A.P. 1925(a). Defendant timely filed her Notice of Appeal
and her Concise Statement of Errors Complained of on Appeal. However, Defendant failed to
serve the Concise Statement on the undersigned. We respectfully request that the instant
appeal be quashed as violative of Pa.R.A.P. I 925(b)(J ). Should the Court not quash the appeal,
the following is our Opinion in support of our Order.
fE.9CEDURAL HISTORY
Plaintiff initiated this action by filing its Complaint on October 25, 2016.
Service was effectuated on Defendant on or about November 19, 2016. Due to Defendant's
failure to file an Answer to the Complaint, a default judgment was entered on January 24, 2017.
Defendant filed her Motion to Open or Vacate Default Judgment on May 19, 2017. Plaintiff
filed its response to the Motion on June I, 2017 and its Brief in Support on June 7, 2017.
Defendant tiled a sur-reply on June 23, 2017 along with her proposed Answer to the
Complaint. As stated above, we issued our Order denying Defendant's Motion on December 6,
2017 which was docketed on December 7, 2017.
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DISCUSSION
Defendant has raised four (4) Matters Complained Of on Appeal. First, Defendant
argues that we erred when we found that she was properly served with the Complaint. Defendant
resides in East Elmhurst, NY. Pursuant to Pa.R.C.P. 404 original process may be made outside the
Commonwealth by inter alia (1) a competent adult in a manner provided by Rule. 402(a) or (2) by
mail in the manner provided by Rule 403. Plaintiff filed a Proof of Service which demonstrates
that a process server hand delivered a copy of the Complaint to a co-tenant at Defendant's address
who refused to give her name. In addition, a copy of the Complaint was mailed to Defendant at
her last known address. Thirdly, Plaintiff provided a copy of an Order issued by the Honorable
Rudolph E. Greco, Jr. of the New York Supreme Court - Queens County which also demonstrates
that Defendant was properly served. Finally, by attempting to proceed on the merits of the case,
Defendant may have waived any defect in service.
In her second Matter, Defendant argues that we erred by failing "to take into
account that defendant resides out of state, has little familiarity with the English language and is
pro se." Respectfully, the fact that Defendant resides outside the Conunonwealth and is
proceeding pro se does not entitle her to any special consideration. See; Triffi.n v. Janssen, 626
A.2d 571 (Pa. Super. 1993). With regard to Defendant's lack of "familiarity with the English
language", a review of her Motion and her proposed A..nswer demonstrate otherwise.
In her third Matter, Defendant argues that we erred when we failed to "balance the
lack of timely filing against the lack of prejudice to Plaintiff if the default judgment was opened
and the fact that defendant immediately returned the equipment ... " We also erred when we
failed to consider the "substantial amount of money involved." The standards for striking and or
opening a default judgment do not require us to perform any type of balancing analysis. With
regard to Defendant's request that we vacate (strike) the judgment, we found no fatal defect
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