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

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* Retired Senior Judge assigned to the Superior Court.
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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
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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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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.
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/18/20
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