Johns, W. v. Lubisky, F. ( 2020 )


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  • J-A01025-20
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    WAYNE JOHNS AND KAREN                         :   IN THE SUPERIOR COURT OF
    SHREEVES JOHNS, H/W                           :        PENNSYLVANIA
    :
    Appellants                 :
    :
    :
    v.                                :
    :
    :   No. 2091 EDA 2018
    FRANK LUBISKY, UNION ROOFING                  :
    CONTRACTORS, INC., AND UNION                  :
    ROOFING                                       :
    Appeal from the Order Entered June 4, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
    No(s): June Term, 2012 No. 00406
    BEFORE:       NICHOLS, J., MURRAY, J., and COLINS, J.*
    MEMORANDUM BY MURRAY, J.:                               FILED FEBRUARY 18, 2020
    Wayne    Johns     and    Karen        Shreeves-Johns,   husband   and   wife
    (Appellants), appeal from the trial court’s order granting the motion for
    judgment on the pleadings filed by Frank Lubisky, Union Roofing Contractors,
    Inc., and Union Roofing (collectively, Roofers). Upon review, we affirm.
    The trial court summarized the underlying facts and procedural history
    as follows:
    [Appellants] aver in their Amended Complaint that on June
    4, 2008, [Appellants] entered into a written contract with
    [Roofers] to perform roofing services. Not long thereafter the roof
    began to experience leaking. [Appellants] informed [Roofers] of
    the problem by sending them a letter on July 27, 2008. The [trial
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    J-A01025-20
    court] found that July 27, 2008, was the date the statute of
    limitations would have begun to run.
    [Appellants] initiated their suit against [Roofers] by writ of
    summons on June 5, 2012 - approximately three years and 11
    months after the statute of limitations began to run. The writ
    expired on July 5, 2012, and was not subsequently reissued. A
    review of the docket makes it clear that this writ was never served
    on [Roofers].
    On August 25, 2014, [Appellants] filed their complaint -
    approximately six years and one month after the statute of
    limitations began to run.       In their Amended Complaint,
    [Appellants] asserted three causes of action:      [n]egligence,
    breach of contract, and violation of the Unfair Trade Practices
    Consumer Protection Law (UTPCPL). . . .
    Trial Court Opinion, 10/19/18, at *2-3 (footnote omitted).
    On November 5, 2014, the trial court entered default judgment against
    Roofers for their failure to file an answer to Appellants’ complaint.        On
    November 28, 2014, Roofers filed a petition to open the default judgment.
    The trial court granted Roofers’ petition on January 26, 2015, opened the
    default judgment, and granted Roofers leave to file a responsive pleading.
    Subsequently, both parties filed preliminary objections. On February
    17, 2016, the trial court issued an order denying Appellants’ preliminary
    objections, granting Roofers’ preliminary objections, and ordering Appellants
    to amend their complaint to include documents previously omitted from the
    record.
    On April 3, 2016, Appellants filed an amended complaint. Roofers filed
    an answer and new matter on July 14, 2016. On July 26, 2016, Appellants
    filed a reply to Roofers’ new matter. Roofers filed a motion for judgment on
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    the pleadings on August 17, 2016; Appellants filed a response to the motion
    on August 29, 2016.
    On June 4, 2018, the trial court issued an order granting Roofers’ motion
    for judgment on the pleadings and dismissed Appellants’ complaint.
    Appellants filed a motion for reconsideration on July 1, 2018.      While their
    motion was pending before the trial court, Appellants filed a notice of appeal.
    The trial court denied Appellants’ motion for reconsideration on July 31, 2018.
    Appellants filed a concise statement pursuant to Pennsylvania Rule of
    Appellate Procedure 1925, and the trial court filed an opinion.
    On appeal, Appellants present two issues:
    [1.] Was the default judgment improperly opened in violation of
    Pa.R.C.P. 237.3?
    [2.] Was the [c]ourt’s [o]rder granting the Motion for Judgment
    on the Pleadings an error of law where the [c]ourt found the facts
    to be “muddied” and in need of “further elucidation”?
    Appellants’ Brief at 4.1
    ____________________________________________
    1 Appellants’ Rule 1925(b) statement raises three additional claims. See Rule
    1925(b) Statement, 9/2/18, at *1-2. However, because Appellants
    abandoned these claims in their brief, we do not address them. See
    Appellants’ Brief at 4; see also Commonwealth v. Briggs, 
    12 A.3d 291
    , 310
    n.19 (Pa. 2011), cert. denied, 
    132 S.Ct. 267
     (2011) (refusing to address
    claim appellant raised with trial court but subsequently abandoned in brief).
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    J-A01025-20
    In their first issue, Appellants assert that the trial court erred in granting
    Roofers’ petition to open the default judgment.2 We recognize:
    [A] petition to open a default judgment is an appeal to the
    equitable powers of the court. The decision to grant or deny a
    petition to open a default judgment is within the sound discretion
    of the trial court, and we will not overturn that decision absent a
    manifest abuse of discretion or error of law. An abuse of discretion
    is not a mere error of judgment, but if in reaching a conclusion,
    the law is overridden or misapplied, or the judgment exercised is
    manifestly unreasonable, or the result of partiality, prejudice, bias
    or ill will, as shown by the evidence of record, discretion is abused.
    Digital Communications Warehouse, Inc. v. Allen Investments, LLC, -
    -- A.3d ----, 
    2019 WL 6049932
    , *5 (Pa. Super. 2019) (citation omitted).
    Appellants argue that the trial court erred in opening the default
    judgment because Roofers did not properly verify both their petition to open
    default judgment and the attached preliminary objections. See Appellants’
    Brief at 10. In particular, Appellants take issue with the fact that Roofers’
    attorney, rather than Roofers, signed the verification forms.
    In response, Roofers argue that Appellants waived this issue because it
    was never raised in the trial court. See Roofers’ Brief at 8-9. Alternatively,
    Roofers aver that their “error was de minimus and it did not bar the [trial
    court] from granting [Roofers’ p]etition.” Id. at 13. We agree.
    ____________________________________________
    2 This issue is properly before us because the trial court’s January 26, 2015
    order granting the opening of the default judgment was not a final and
    appealable order.       See Pa.R.A.P. 311; see also Joseph Palermo
    Development Corp. v. Bowers, 
    564 A.2d 996
    , 998 (Pa. Super. 1989) (“An
    order opening judgment . . . does not end the litigation[.]”).
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    The record confirms that Appellants failed to raise the issue of the
    verifications’ alleged defectiveness with the trial court. Appellants’ answer to
    Roofers’ petition to open default judgment does not present any challenge to
    the verifications, nor does Appellants’ motion for reconsideration.         See
    Appellants’ Answer to Roofers’ Petition to Open Default Judgment, 12/22/14,
    at *1-8; Appellants’ Motion for Reconsideration, 7/1/18, at *1-3.          Thus,
    Appellants have waived any argument concerning the defectiveness of the
    verifications. See Pa.R.A.P. 302 (“Issues not raised in the lower court are
    waived and cannot be raised for the first time on appeal.”).
    Even if Appellants preserved their verification claims, they are meritless.
    Had Appellants raised the issue in the trial court, case law dictates that the
    proper remedy would have been to grant Roofers leave to amend their
    verifications. See JP Morgan Chase Bank, N.A. v. Murray, 
    63 A.3d 1258
    ,
    1270 (Pa. Super. 2013) (“[A trial] court confronted by a defective verification
    should grant leave to amend before dismissing the petition.”) (citation
    omitted). We therefore agree that the error is de minimis and Appellants’
    issue is meritless. See Monroe Contract Corp. v. Harrison Square, Inc.,
    
    405 A.2d 954
    , 959 (Pa. Super. 1979) (holding that remand was not “in the
    best interests of judicial economy . . . for the sole purpose of effecting a
    miniscule and purely formal amendment.”); George H. Althof, Inc. v.
    Spartan Inns of America, Inc., 
    441 A.2d 1236
    , 1238 (Pa. Super. 1982)
    (“This Court has . . . looked beyond technical defects in affidavits
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    accompanying petitions to open or strike default judgments.”) (citations
    omitted).
    Appellants also argue that the trial court erred in opening the default
    judgment because Roofers failed to provide a reasonable excuse for failing to
    file a responsive pleading to their complaint. See Appellants’ Brief at 13-14.
    A default judgment may be opened when the moving party establishes
    three requirements:   “(1) a prompt filing of a petition to open the default
    judgment; (2) a meritorious defense; and (3) a reasonable excuse or
    explanation for its failure to file a responsive pleading.” U.S. Bank National
    Assoc. for Pa. Housing Finance Agency v. Watters, 
    163 A.3d 1019
    , 1028
    (Pa. Super. 2017) (citation omitted); see also Schultz v. Erie Ins.
    Exchange, 
    477 A.2d 471
    , 472 (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.” 
    Id.
     (citations omitted).
    Appellants argue that Roofers failed to provide a reasonable excuse for
    their failure to file a responsive pleading because “allegations of improper
    service are conclusions of law, and do not constitute an adequate excuse[.]”
    Appellants’ Brief at 12.   The record reflects, however, that this is not the
    reasonable excuse given by Roofers for their failure to file a responsive
    pleading. See Roofers’ Petition to Open Default Judgment, 11/28/14, at ¶¶
    28-35; Roofers’ Memorandum of Law, 11/28/14, at *4 (“[Roofers] never
    responded to the Complaint . . . out of a mistaken belief that they were
    working toward a settlement and a genuine confusion over the [d]efault
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    [j]udgment itself.”). Notably, Appellants concede that Roofers “set forth an
    adequate explanation of the delay in answering the complaint in their petition
    to open[.]” Appellants’ Brief at 12.
    In their second issue, Appellants argue that the trial court improperly
    granted Roofers’ motion for judgment on the pleadings because there exist
    unresolved factual disputes. See Appellants’ Brief at 14-16.
    Upon review, we are constrained to conclude that Appellants’ claim is
    waived for failure to preserve the issue in their Rule 1925(b) statement. “If
    the judge entering the order giving rise to the notice of appeal desires
    clarification of the errors complained of on appeal, the judge may enter an
    order directing the appellant to file of record in the trial court and serve on
    the judge a concise statement of the errors complained of on appeal.”
    Pa.R.A.P. 1925(b) (parentheticals omitted). Any issue not raised in a Rule
    1925(b) concise statement will be deemed waived.               See Pa.R.A.P.
    1925(b)(4)(vii) (emphasis added).
    Further:
    Our jurisprudence is clear and well-settled, and firmly establishes
    that: Rule 1925(b) sets out a simple bright-line rule, which
    obligates an appellant to file and serve a Rule 1925(b) statement,
    when so ordered; any issues not raised in a Rule 1925(b)
    statement will be deemed waived; the courts lack the authority to
    countenance deviations from the Rule’s terms; the Rule’s
    provisions are not subject to ad hoc exceptions or selective
    enforcement; appellants and their counsel are responsible for
    complying with the Rule’s requirements; Rule 1925 violations may
    be raised by the appellate court sua sponte, and the Rule applies
    notwithstanding an appellee’s request not to enforce it; and, if
    Rule 1925 is not clear as to what is required of an appellant, on-
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    the-record actions taken by the appellant aimed at compliance
    may satisfy the Rule. We yet again repeat the principle first stated
    in [Commonwealth v. Lord, 
    719 A.2d 306
     (Pa. 1998)] that must
    be applied here: In order to preserve their claims for appellate
    review, appellants must comply whenever the trial court orders
    them to file a Statement of Matters Complained of on Appeal
    pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P.
    1925(b) statement will be deemed waived.
    Commonwealth v. Hill, 
    16 A.3d 484
    , 494 (Pa. 2011) (citation and footnote
    omitted); see also Berg v. Nationwide Mut. Ins. Co., Inc., 
    6 A.3d 1002
    ,
    1010 (Pa. 2010) (Pennsylvania Supreme Court applying the principles set
    forth in Lord in a civil case).
    On August 15, 2018, the trial court filed a Rule 1925(b) order requiring
    Appellants to file a concise statement within 21 days.        Order, 8/15/18.
    Appellants filed a concise statement on September 2, 2018, in which they
    raised the following four claims:
    1. Where a default judgment was entered in favor of [Appellants]
    on November 5, 2014, and [Roofers] did not file a Petition to Open
    until November 28, 2014, was the default judgment improperly
    opened in violation of Pa.R.C.P. 237.3?
    2. Where [Roofers] failed to appear for arbitration on November
    20, 2014, and $48,450 was awarded to [Appellants] by the
    arbitration panel, was [Roofers’] appeal therefrom for a trial de
    novo in violation of Pa.R.C.P. 1303, and/or Phila. Civ. R. 1303,
    and therefore procedurally incorrect?
    3. Was the [trial court’s o]rder (dated June 4, 2018) in violation
    of the law of the case, or any other common law doctrine, where
    the [trial court] had previously denied [Roofers’] requests for
    dismissal (on grounds concerning the timeliness of the Writ and
    Complaint) on at least seven (7) separate, prior occasions?
    4. Should prior [Appellants’] counsel’s incompetence (and
    disbarment), in allegedly failing to timely serve a Writ of
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    Summons upon [Roofers’], operate to bar [Appellants] from
    pursuing their claims, particularly where the [trial court] denied
    [Roofers] requests in that regard on at least seven (7) occasions
    during the litigation of the case?
    Appellants’ Rule 1925(b) Statement, 9/2/18, at *1-2.
    After thorough review, we cannot say that any of the issues raised in
    Appellants’ concise statement preserved the factual dispute issue Appellants’
    argue in their brief.   Id.; Appellants’ Brief at 14-16.    As such, Appellants’
    second issue compels waiver.      
    Id.
     (“Issues not included in the Statement
    and/or not raised in accordance with the provisions of this paragraph (b)(4)
    are waived.”) (emphasis added).
    We also note that in their brief, Appellants fail to articulate and identify
    what fact or facts were allegedly in-dispute. See Appellants’ Brief at 14-16.
    This also constitutes grounds for waiver. See Pa.R.A.P. 2119; see also Keller
    v. Mey, 
    67 A.3d 1
    , 7 (Pa. Super. 2013) (“Our Rules provide that an appellant’s
    argument must contain citation to relevant authorities as well as reference to
    the portions of the record and evidence that support the issue on appeal. . .
    This Court will not develop arguments on the behalf of appellant or comb the
    record for factual underpinnings to support appellant’s position.”) (citation
    omitted).
    For the reasons discussed above, we affirm the trial court’s June 4, 2018
    order granting Roofers’ motion for judgment on the pleadings.
    Order affirmed.
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    J-A01025-20
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 2/18/20
    - 10 -
    

Document Info

Docket Number: 2091 EDA 2018

Filed Date: 2/18/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024