Firmstone Oil v. Rigerman, E. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
FIRMSTONE OIL CO., INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ELIMELECH RIGERMAN and LEONID :
RIGERMAN :
:
APPEAL OF: ELIMELECH RIGERMAN : No. 2511 EDA 2015
Appeal from the Order Entered July 28, 2015,
in the Court of Common Pleas of Wayne County,
Civil Division, at No(s): 1449-JUDG-2010
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 04, 2016
Elimelech Rigerman (Elimelech) appeals pro se from the order entered
on July 28, 2015, which denied his motion to vacate default judgment. We
affirm.
On May 4, 2010, Firmstone Oil Company (Firmstone) filed a complaint
before Magisterial District Judge Theodore J. Mikulak against Elimelech and
his father, Leonid Rigerman (Leonid) (collectively, the Rigermans) for failing
to pay for heating oil in the amount of $592.12 plus costs. The complaint
was served personally upon Elimelech at a Brooklyn, New York address on
June 26, 2010 by Anthony Mazzella, a process server in New York. On July
29, 2010, a default judgment at the district court was entered against the
Rigermans. The judgment was filed in the prothonotary’s office of the Court
of Common Pleas of Wayne County on August 31, 2010.
*Retired Senior Judge assigned to the Superior Court.
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On May 12, 2015, the Rigermans pro se filed a “Motion for Order to
Vacate Default Judgment.” The Rigermans asserted that Firmstone lacked
personal jurisdiction over them; and, therefore they “are not bound by the
usual appeal … deadlines, since the court needs personal jurisdiction to
impose a judgment[.]” Motion for Order to Vacate Default Judgment,
5/12/2015, at ¶ 1. The Rigermans also asserted within this motion that
“they meet all the requirements to file a late appeal” because “[t]here was
no proper service.” Id. at ¶ 3. On June 2, 2015, the trial court issued a rule
to show cause on Firmstone. Firmstone filed an answer, and a hearing was
held on July 6, 2015.
At the hearing, Leonid was represented by Attorney Jeffrey Treat.1
Leonid called Summer Canfield, an employee for District Judge Mikulak, to
testify. Canfield testified about the records kept for District Judge Mikulak.
She testified that the affidavit of service indicates that service was made
only on Elimelech. N.T., 7/6/2015, at 5. Steven Firmstone, the general
manager of Firmstone, also testified. He testified that the Rigermans were
listed as the billing address for a heating oil account for a home in Beach
Lake, Pennsylvania.2 According to his testimony, oil was delivered and
1
Neither of the Rigermans attended the hearing personally.
2
The record includes a June 23, 2009 deed for property located at 13 Hill
Street in Beach Lake in Wayne County. The deed shows that Elimelch
granted a two-thirds interest in the property to Yisroel Rigerman and Moshe
Rigerman.
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payment was made on a regular basis for a period of time for that account.
At some point, a “dispute among the family members” arose as to who
ordered the heating oil. Id. at 9. That dispute, resulting in Firmstone’s not
getting paid for its last delivery of heating oil, led to Firmstone filing the
complaint against the Rigermans in Wayne County. Steven Firmstone
testified that the complaint was mailed to the Brooklyn address, but “they
were not signing for their mail.” Id. at 10. Firmstone then paid a company
to serve the Rigermans. At the close of testimony, counsel for Leonid
argued that Leonid never received service of the complaint and he is not on
the deed to the property; thus, he requested the trial court open the
judgment against him.
On July 28, 2015, the trial court entered an order striking the
judgment against Leonid.3 The trial court denied the motion to vacate the
judgment with respect to Elimelech.4
Elimelech filed pro se a notice of appeal from that order. He also filed
both a “concise statement of errors on appeal” that included 17 allegations
of error and a “concise list of errors complained [of] on appeal[]” setting
3
The trial court concluded that the judgment should be stricken with respect
to Leonid because “it appears from the facts of record that proof of service
was never filed with the original complaint.” Trial Court Order, 7/28/2015, at
n. 1.
4
Despite the fact that Elimelech called his motion a motion to “vacate” the
judgment, we must look to the substance of the motion to determine
whether to treat it as a petition to open or a petition to strike the judgment.
See Erie Ins. Co. v. Bullard, 839 A.2d 383 (Pa. Super. 2003).
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forth eight errors. The trial court filed an opinion pursuant to Pa.R.A.P.
1925(a).
We set forth the relevant principles of law that guide our review of this
matter.
A petition to strike a default judgment and a petition to
open a default judgment are generally not interchangeable. A
petition to strike does not involve the discretion of the court.
Instead, it operates as a demurrer to the record. A demurrer
admits all well-pleaded facts for the purpose of testing
conclusions of law drawn from those facts. Because a petition to
strike operates as a demurrer, a court may only look at the facts
of record at the time the judgment was entered to decide if the
record supports the judgment. A petition to strike can only be
granted if a fatal defect appears on the face of the record.
***
In contrast, a petition to open a judgment is an appeal to
the equitable powers of the court. It is committed to the sound
discretion of the hearing court and will not be disturbed absent a
manifest abuse of that discretion. 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.
Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-19. (Pa.
1997) (citations omitted).
Elimelech first argues that the complaint itself was defective; thus, the
judgment is void and should be stricken. Specifically, he contends that the
complaint filed by Firmstone at the district court was in violation of
Pa.R.M.D.J. 304, which governs complaints filed before the magisterial
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district judge. He argues that Firmstone “deliberately signed a false name”
when he signed one document as “Steve” when his legal name is “Steven.”
Elimelech’s Brief at 28. He also claims that Firmstone “deliberately left out
all the relevant legally required information from the complaint, to preclude
[Elimelech] from being able to present a proper defense[.]” Id. at 29.
The trial court offered the following in response to these contentions.
The complaint that commences a civil action in a
magisterial district court[] shall include: (1) “the names and
addresses of the parties,” (2) [“]the amount claimed,” and (3)
[“]a brief and concise statement of the facts upon which the
claim is based.” Pa.R.C.P.M.D.J. 304(c). The brief concise
statement of the facts in the complaint shall include “the date,
time and place of occurrence and a brief description of the
damages.” Id.
In this case, there was no fatal defect evident on the face
of the record at the time default judgment was entered. The
filed civil complaint consisted of the names and addresses of the
parties, the amount claimed, and a concise statement of the
facts. The information in the complaint was more than enough
to put [Elimelech] on notice of what he was being accused of….
Therefore, this [c]ourt finds that [Elimelech] is not entitled to a
court order vacating the [judgment] in this case.
Trial Court Opinion, 10/5/2015, at 2-3.
We discern no error in the trial court’s conclusion. A review of the
record supports the trial court’s determination that based on the facts of
record, the complaint filed by Firmstone was not defective. Accordingly, we
agree with the trial court that the judgment should not be stricken on this
basis.
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Elimelech next argues that he was not properly served with the
complaint; therefore, the district court lacked jurisdiction over him.
Elimelech’s Brief at 44. Specifically, Elimelech argues that service by
process server Anthony Mazzella in New York City was improper because
Anthony Mazzella was not a licensed process server at that time. Id.
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. Thus, if 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…. [S]ee [] Liquid Carbonic [Corp. v. Cooper &
Reese, Inc., 416 A.2d 549 (Pa. Super. 1979)] (petition to open
granted where record was facially valid at time judgment was
entered but subsequent affidavits and depositions in support of
the petition to open demonstrated that service was improper).
Cintas, 700 A.2d at 919.
As to this issue, Elimelech’s argument that Anthony Mazzella was not a
licensed process server, and was therefore unauthorized to serve Elimelech
pursuant to the rules, does not constitute a “fatal defect or irregularity
appearing on the face of the record.” Id., 700 A.2d at 917. Cf. Brooks v. B
& R Touring Co., 939 A.2d 398 (Pa. Super. 2007) (holding that the service
of the complaint made upon Beverly Frey when the complaint listed only B &
R Touring Company as a defendant was a defect apparent from the face of
the record rendering the judgment entered void and properly stricken by the
trial court).
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Accordingly, this portion of the motion to vacate default judgment
must be treated as a petition to open the default judgment. Elimelech had
the burden of offering proof to satisfy the aforementioned three-prong test.
See Sisson v. Stanley, 109 A.3d 265, 279 (Pa. Super. 2015) (“[T]he
burden of proof with respect to disputed issues of material fact rests with the
petitioner, since if the petitioner fails to present evidence, the trial court
must accept as true the allegations of fact in the respondent’s answer.”).
However, Elimelech did not appear, nor was he represented, at the hearing
on the rule to show cause. Therefore, he could not meet his burden of
proof, and the trial court did not err in refusing to open the judgment.
Based on the foregoing, we affirm the order of the trial court denying
Elimelech’s motion to vacate default judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2016
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