Roy, J. v. Rue, R. ( 2022 )


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  • J-S09033-22
    
    2022 PA Super 64
    JOSEPH ROY, BY AND THROUGH HIS             :   IN THE SUPERIOR COURT OF
    GUARDIAN DOROTHY ROY                       :        PENNSYLVANIA
    :
    :
    v.                             :
    :
    :
    ROBERT RUE, HAMMERHEADS                    :
    SPORTS BAR AND GRILLE, JJJ                 :   No. 1598 EDA 2021
    FAMILY RESTAURANT, PAT'S 3517,             :
    INC.                                       :
    :
    :
    APPEAL OF: ROBERT RUE
    Appeal from the Order Entered June 22, 2021
    In the Court of Common Pleas of Philadelphia County Civil Division at
    No(s): 110204688
    BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
    OPINION BY STEVENS, P.J.E.:                              FILED APRIL 12, 2022
    Appellant, Robert Rue (“Mr. Rue”), appeals from the June 22, 2021,
    order entered in the Court of Common Pleas of Philadelphia County, which
    denied Mr. Rue’s petition to open and strike the default judgment entered
    against him and in favor of Appellee, Joseph Roy (“Mr. Roy”), by and through
    his guardian, Dorothy Roy (“Ms. Roy”).1 After a careful review, we affirm.
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    1 On January 25, 2011, the Court of Common Pleas of Philadelphia County,
    Orphans’ Court division, adjudicated Mr. Roy an incompetent and
    incapacitated person, and the court appointed his mother, Ms. Roy, as his
    guardian.
    J-S09033-22
    The relevant facts and procedural history are as follows: On March 3,
    2011, Ms. Roy, the guardian of Mr. Roy, filed a complaint alleging that, during
    the late evening of April 23, 2010, and into the early morning hours of April
    24, 2010, Mr. Roy was a patron of the JJJ Family Restaurant/Hammerheads
    Sports Bar and Grille (“Hammerheads”),2 which is a bar and restaurant located
    in Philadelphia. Ms. Roy averred that, during this time, Hammerheads served
    alcohol to Mr. Rue, who was visibly intoxicated.
    Ms. Roy alleged a disturbance broke out inside of Hammerheads, and
    several patrons, including an acquaintance of Mr. Roy, were escorted out of
    the establishment by Hammerheads’ employees.            Mr. Roy was neither
    involved in this disturbance nor escorted out of the establishment.
    However, upon discovering his acquaintance was outside, Mr. Roy exited
    Hammerheads and stood on the sidewalk in front of the establishment when
    a group of people, including Mr. Rue, began to argue. Without warning or
    provocation, Mr. Rue violently struck Mr. Roy in the back of the head, thereby
    causing catastrophic injuries to Mr. Roy, who, as of the time of the filing of
    the complaint, was in a permanent vegetative state and dependent upon a
    ventilator. Mr. Roy subsequently died on May 4, 2020.
    ____________________________________________
    2Pursuant to the parties’ stipulation filed on August 17, 2012, the caption was
    amended to reflect the correct name of the restaurant and bar to include Pat’s
    3517, Inc.
    -2-
    J-S09033-22
    In the complaint, Ms. Roy raised claims of negligence against
    Hammerheads, as well as claims of assault and battery against Mr. Rue. An
    affidavit/return of service reveals Ms. Roy used a process server, Jodi Broder,
    who served the complaint on Mr. Rue at 3260 Teesdale Street Apt. 2,
    Philadelphia, PA (“the Teesdale Street residence”) on March 11, 2011, at 9:25
    p.m., by handing it to an “[a]dult family member with whom said Party
    resides[:] Debbie Rue” (“Ms. Rue”), who was later identified as Mr. Rue’s
    mother.3     See Affidavit/Return of Service, filed 3/12/11.   Additionally, an
    affidavit/return of service reveals Jodi Broder served Ms. Roy’s complaint on
    Hammerheads at 3517 Cottman Avenue on March 11, 2011, at 9:45 p.m., by
    handing it to Danny Dragoni, an agent in charge of the party’s office or usual
    place of business.
    On April 5, 2011, counsel for Hammerheads entered her appearance,
    and on June 14, 2012, Hammerheads filed an answer with new matter and a
    crossclaim. Ms. Roy filed a reply to the new matter on June 29, 2012.
    Having received no answer from Mr. Rue, Ms. Roy filed a ten-day notice
    of intent to enter default judgment pursuant to Pennsylvania Rule of Civil
    Procedure 237.1. The ten-day notice was served upon Mr. Rue on June 9,
    2012, by certified mail return receipt requested and by regular mail addressed
    ____________________________________________
    3 We note the Teesdale Street residence was, and continues to be, the sole
    address listed for “Defendant: Rue, Robert” on the trial court docket in the
    instant matter.
    -3-
    J-S09033-22
    to the Teesdale Street residence. Mr. Rue had ten days to respond, and he
    failed to do so.
    Accordingly, on June 22, 2012, Ms. Roy filed a praecipe to enter default
    judgment against Mr. Rue, and the trial court entered a default judgment
    against Mr. Rue on June 22, 2012. The notice of entry of default judgment
    was served upon Mr. Rue on June 22, 2012, by certified mail return receipt
    requested and by regular mail addressed to the Teesdale Street residence.
    On January 7, 2013, the trial court filed an order indicating that an
    assessment of damages trial against Mr. Rue would take place on January 16,
    2021, at 9:30 a.m. The trial court informed Mr. Rue that if he failed to appear
    the damages trial would take place in his absence. The certified docket entries
    contain a notation that notice of this order was provided under Pa.R.Civ.P. 236
    on January 8, 2013.
    Mr. Rue failed to appear for the assessment of damages trial, and on
    January 18, 2013, a verdict of damages was entered against Mr. Rue in the
    amount of $23,206,444.85. Specifically, the trial court’s verdict sheet reveals
    $21,206,444.85 for economic damages and $2,000,000.00 in pain and
    suffering. The certified docket entries contain a notation that notice of this
    verdict was provided under Pa.R.Civ.P. 236 on January 18, 2013.4
    ____________________________________________
    4 Thereafter, with court approval, Ms. Roy entered into a settlement
    agreement with Hammerheads.
    -4-
    J-S09033-22
    On February 18, 2021, Mr. Rue filed a petition to open the default
    judgment.5 Therein, Mr. Rue averred he was incarcerated when the trial court
    held the assessment of damages trial, and he did not appear for the trial
    because he had no notice thereof. Mr. Rue acknowledged the docket reveals
    the Prothonotary provided notice of the damages trial pursuant to Pa.R.C.P.
    236(b). However, he noted the address listed for him on the docket was the
    Teesdale Street residence, but at the time of the damages trial, he was in
    prison. Petition to Open, filed 2/18/21, at ¶ 22. Accordingly, he contended
    he never received notice of the assessment of damages trial.
    He further averred he was not properly served with original process. Mr.
    Rue acknowledged that Ms. Roy served the complaint on his mother at the
    Teesdale Street residence. However, he indicated he was “out on bail at the
    time the complaint was originally served….and he was not residing with his
    parents at [the] Teesdale Street [address].” Id. at ¶¶ 9-10. Instead, Mr. Rue
    averred he “believes he was either residing at 8214 Craig Street Philadelphia
    or at an apartment within the St. Ive’s Apartment Complex (not on Teesdale
    Street) [when the complaint was served].” Id. at ¶ 10.
    ____________________________________________
    5 Mr. Rue filed this petition with the assistance of counsel, who continues to
    represent Mr. Rue on appeal. We note Mr. Rue did not initially attach to his
    petition a proposed answer to Ms. Roy’s complaint. However, on March 26,
    2021, he filed a proposed answer with new matter.
    -5-
    J-S09033-22
    Mr. Rue attached to his petition signed affidavits from his mother,
    father, and sister indicating that Mr. Rue was not living at the Teesdale Street
    residence at any time during 2011. Mr. Rue also attached to his petition the
    deed to the Teesdale Street property, which revealed Mr. Rue’s father, “Robert
    Rue”, was the owner of the property. Id. at ¶ 10.
    Mr. Rue suggested the confusion in this case occurred because he and
    his father have the same name, and while his mother, who accepted service
    of the complaint, lived at the Teesdale Street residence with a “Robert Rue,”
    it was his father and not him. Id. at ¶ 12. He further suggested his mother
    was not competent to accept service since she was struggling with addiction
    and mental illness, and she simply ignored the complaint without informing
    her son, Mr. Rue, that it had been served at the Teesdale Street residence.
    Id. at ¶ 14.    Thus, Mr. Rue contended he never received notice of the
    complaint.
    Mr. Rue averred the “situation” become “worse” when, in May of 2012,
    a jury convicted him of several crimes in connection with the injury to Mr. Roy,
    and his bail was revoked. Id. at ¶ 15. He averred Ms. Roy was present in the
    courtroom when the jury returned a guilty verdict on May 24, 2012, and
    therefore, she should have been aware that he was in prison when she mailed
    the ten-day notice of intent to enter default judgment to the Teesdale Street
    residence on June 9, 2012.     Id. at ¶¶ 16-18. Mr. Rue indicated he never
    received the notice since he was in prison. Id. at ¶ 20.
    -6-
    J-S09033-22
    In summary, Mr. Rue averred:
    At all times material, [Mr. Rue] never resided at Teesdale
    Street when the complaint was filed and served on his mother;
    and he resided in a correctional facility when the notice of intent
    to take default was sent to Teesdale Street while [he was]
    awaiting sentencing from May until July of 2012. He then resided
    in a Western PA prison from approximately July 12, 2012[,] until
    June 2013. During all of this time, despite knowing with certainty
    that [Mr. Rue] did not reside at Teesdale Street beyond May 24,
    2012, [Ms. Roy] took zero steps to correct [Mr. Rue’s] address on
    the docket to reflect what [Ms. Roy] knew was his proper address;
    i.e., within a PA Correctional Institution.
    Id. at ¶ 20. Thus, he contended he has a reasonable explanation for failing
    to file an answer. Id. at ¶ 29.
    Additionally, Mr. Rue suggested he promptly filed his petition to open
    after he received notice of the entry of the default judgment. In this vein, he
    contended he “only recently” learned of the entry of the default judgment on
    December 29, 2020, when he was served with post-judgment interrogatories.
    Id. at ¶ 30.    Mr. Rue suggested that Ms. Roy “did nothing in terms of
    attempting to collect on the civil judgment from 2013 until the end of 2020.”
    Id. at ¶ 36. Further, Mr. Rue averred he has a meritorious defense to the
    assault and battery civil claims in that he acted in self-defense. Id. at ¶ 27.
    Moreover, Mr. Rue filed a petition to strike the default judgment on
    February 18, 2021. Relevantly, Mr. Rue alleged, inter alia, that the default
    judgment should be stricken as void since the record shows on its face a defect
    in the service of the complaint, the ten-day notice of intent to enter default
    judgment, and the notice of the damages assessment trial.
    -7-
    J-S09033-22
    On March 11, 2021, Ms. Roy filed answers in opposition to Mr. Rue’s
    petition to open the default judgment, as well as his petition to strike the
    default judgment.   By order entered on June 22, 2021, the trial court denied
    Mr. Rue’s petitions to open and strike the default judgment. This timely appeal
    followed, and all Pa.R.A.P. 1925 requirements have been met.
    On appeal, Mr. Rue initially contends the trial court erred in denying his
    motion to strike the default judgment based on fatal defects appearing on the
    face of the record as it relates to the service of the complaint, the ten-day
    notice of intent to enter default judgment, and the notice of the assessment
    of damages trial.
    This Court has held:
    “An appeal regarding a petition to strike a default judgment
    implicates the Pennsylvania Rules of Civil Procedure.” Green
    Acres Rehabilitation and Nursing Center v. Sullivan, 
    113 A.3d 1261
    , 1267 (Pa.Super. 2015).
    Issues regarding the operation of procedural
    rules of court present us with questions of law.
    Therefore, our standard of review is de novo and our
    scope of review is plenary.
    A petition to strike a judgment is a common law
    proceeding which operates as a demurrer to the
    record. A petition to strike a judgment may be
    granted only for a fatal defect or irregularity appearing
    on the face of the record. [A] petition to strike is not
    a chance to review the merits of the allegations of a
    complaint. Rather, a petition to strike is aimed at
    defects that affect the validity of the judgment and
    that entitle the petitioner, as a matter of law, to relief.
    A fatal defect on the face of the record denies the
    prothonotary the authority to enter judgment. When
    a prothonotary enters judgment without authority,
    that judgment is void ab initio. When deciding if there
    -8-
    J-S09033-22
    are fatal defects on the face of the record for the
    purposes of a petition to strike a [default] judgment,
    a court may only look at what was in the record when
    the judgment was entered.
    Bank of New York Mellon v. Johnson, 
    121 A.3d 1056
    , 1059-60 (Pa.Super.
    2015) (quotation omitted).
    “[A] petition to strike is not a chance to review the merits of the
    allegations of a complaint. Rather, a petition to strike is aimed at defects that
    affect the validity of the judgment and that entitle the petitioner, as a matter
    of law, to relief.” Oswald v. WB Public Square Associates, LLC, 
    80 A.3d 790
    , 794 (Pa.Super. 2013) (citation omitted). “The standard for ‘defects’ asks
    whether the procedures mandated by law for the taking of default judgments
    have been followed.” Continental Bank v. Rapp, 
    485 A.2d 480
    , 483
    (Pa.Super. 1984) (citation omitted). See Liquid Carbonic Corp. v. Cooper
    & Reese, Inc., 
    416 A.2d 549
    , 550 (Pa.Super. 1979) (“If the record is self-
    sustaining, the judgment cannot be stricken.”) (quotation and quotation
    marks omitted)). A fatal defect on the face of the record denies the
    prothonotary the authority to enter judgment. Erie Ins. Co. v. Bullard, 
    839 A.2d 383
    , 388 (Pa.Super. 2003). When a prothonotary enters judgment
    without authority, that judgment is void ab initio. See 
    id.
    Mr. Rue first contends the record reveals a fatal defect as to the
    affidavit/return of service of the complaint. Specifically, he alleges:
    Here, the record reveals that service was made on Debbie Rue
    and the affidavit in question suggests she is a family member who
    resides with Robert Rue. However, the affidavit of service does
    -9-
    J-S09033-22
    not specify that the defendant is the son of Debbie Rue, and that
    he resides there; nor is there any suggestions in the affidavit that
    establishes that the process server questions Ms. Rue about her
    relationship with the Defendant in question.
    Mr. Rue’s Brief at 8 (citation to record omitted).
    It is well-settled that:
    Service of process is a mechanism by which a court obtains
    jurisdiction of a defendant, and therefore, the rules concerning
    service of process must be strictly followed. Without valid service,
    a court lacks personal jurisdiction of a defendant and is powerless
    to enter judgment against [the defendant].
    Thus, improper service is not merely a procedural defect
    that can be ignored when a defendant subsequently learns of the
    action....However, the absence of or a defect in a return of service
    does not necessarily divest a court of jurisdiction of a defendant
    who was properly served. [T]he fact of service is the important
    thing in determining jurisdiction and...proof of service may be
    defective or even lacking, but if the fact of service is established
    jurisdiction cannot be questioned.
    Cintas Corp. v. Lee’s Cleaning Services, Inc., 
    549 Pa. 84
    , 
    700 A.2d 915
    ,
    917-18 (1997) (citations and quotation marks omitted).
    The Pennsylvania Rules of Civil Procedure govern service and relevantly
    provide the following:
    Rule 402. Manner of Service. Acceptance of Service.
    (a) Original process may be served
    (1) by handing a copy to the defendant; or
    (2) by handing a copy
    (i) at the residence of the defendant to an adult
    member of the family with whom he resides; but if no
    adult member of the family is found, then to an adult
    person in charge of such residence[.]
    Pa.R.C.P. 402(a)(1), (2)(i) (bold in original).
    - 10 -
    J-S09033-22
    Rule 405. Return of Service
    (a) When service of original process has been made the sheriff or
    other person making service shall make a return of service
    forthwith. If service has not been made and the writ has not been
    reissued or the complaint reinstated, a return of no service shall
    be made upon the expiration of the period allowed for service.
    ***
    (b) A return of service shall set forth the date, time, place and
    manner of service, the identity of the person served and any other
    facts necessary for the court to determine whether proper service
    has been made.
    Pa.R.C.P. 405(a), (b) (bold in original).
    Here, our review confirms the affidavit/return of service complies with
    Pa.R.C.P. 405. Specifically, the return of service sets forth the date
    (3/11/2011), the time (9:25 p.m.), the place (3260 Teesdale Street Apt 2,
    Philadelphia, PA),6 and the manner/identity of the person served (handing
    complaint to adult family member with whom defendant resides, Debbie Rue).
    The affidavit/return of service also describes the person who accepted service
    as being a fifty-year-old Caucasian woman who was 5’6” tall and weighing 170
    pounds.
    Nevertheless, Mr. Rue contends the affidavit/return of service is facially
    defective since the affidavit/return of service does not reveal that the process
    server determined the precise familial relationship of Debbie Rue to Mr. Rue.
    ____________________________________________
    6This is the same address Ms. Roy set forth in the complaint as it pertains to
    Mr. Rue and, as indicated supra, it is the sole address listed on the certified
    docket for Mr. Rue.
    - 11 -
    J-S09033-22
    However, this is not an explicit requirement of Pa.R.C.P. 405.7 Since the
    affidavit/return of service sets forth sufficient information for the trial “court
    to determine whether proper service has been made,” the trial court did not
    err in denying Mr. Rue’s petition to strike on this basis. See Continental
    Bank, 
    supra.
    Mr. Rue next contends the trial court erred in denying his motion to
    strike because the record reflects a fatal error since he was not properly served
    with the ten-day notice of intent to file a default judgment as is required by
    Pa.R.C.P. 237.1. Mr. Rue contends the June 9, 2012, service of the ten-day
    notice was defective since Ms. Roy mailed the notice to the Teesdale Street
    residence, which was not Mr. Rue’s residence. Rather, Mr. Rue contends that,
    as of May 24, 2012, he was confined in prison.
    Mr. Rue’s issue implicates the interpretation of the procedural rules of
    court, and thus, we are presented with a question of law. See Bank of New
    York Mellon, supra. Accordingly, “our standard of review is de novo and our
    ____________________________________________
    7 To the extent Mr. Rue contends “Debbie Rue” was not, under Pa.R.C.P.
    402(a)(2)(i), “an adult member of the family with whom he resides…[or] an
    adult person in charge of such residence[,]” the trial court was unable to
    consider Mr. Rue’s argument in the context of a motion to strike the default
    judgment. See Digital Communications Warehouse, Inc. v. Allen
    Investments, LLC, 
    223 A.3d 278
     (Pa.Super. 2019) (holding trial court was
    unable to consider the appellant’s argument that the person upon whom the
    complaint was served was not an authorized agent in the context of a motion
    to strike as such evidence was outside the record).
    - 12 -
    J-S09033-22
    scope of review is plenary.” Osward v. WB Public Square Associates, LLC,
    
    80 A.3d 790
    , 793 (Pa.Super. 2013).
    Mr. Rue’s argument focuses on the interplay between Pennsylvania
    Rules of Civil Procedure 237.1 and 440. Rule 237.1 requires a plaintiff to
    provide a defendant with at least ten days prior notice of her intent to enter a
    default judgment. The Rule relevantly provides:
    Rule 237.1 Notice of Praecipe for Entry of Judgment of Non
    Pros for Failure to File Complaint or by Default for Failure
    to Plead
    ***
    (2) No judgment of non pros for failure to file a complaint or by
    default for failure to plead shall be entered by the prothonotary
    unless the praecipe for entry includes a certification that a written
    notice of intention to file the praecipe was mailed or delivered
    ***
    (ii) in the case of a judgment by default, after the failure to
    plead to a complaint and at least ten days prior to the date of the
    filing of the praecipe to the party against whom judgment is to be
    entered and to the party’s attorney of record, if any.
    The ten-day notice period in subdivision (a)(2)(i) and (ii) shall be
    calculated forward from the date of the mailing or delivery, in
    accordance with Rule 106.
    (3) A copy of the notice shall be attached to the praecipe.
    (4) The notice and certification required by this rule may not be
    waived.
    Note: A certification of notice is a prerequisite in all cases to the
    entry by praecipe of a judgment of non pros for failure to file a
    complaint or by default for failure to plead to a complaint. Once
    the ten-day notice has been given, no further notice is required
    by the rule even if the time to file the complaint or to plead to the
    complaint has been extended by agreement.
    Pa.R.C.P. 237.1(a)(2)(ii), (3), (4) (bold in original).
    - 13 -
    J-S09033-22
    The purpose of this rule is to ensure that default judgments are not
    entered without a defendant’s prior knowledge, and to provide the defaulting
    party with an opportunity to cure the defect prior to the entry of default
    judgment. Green Acres Rehabilitation and Nursing Center, 113 A.3d at
    1271-72. “A record that reflects a failure to comply with Rule 237.1 is facially
    defective and cannot support a default judgment.” Erie Ins. Co., 
    839 A.2d at 387
    .
    The Comment to Rule 237.1 indicates that the ten-day notice must be
    in writing. Furthermore, the Comment provides:
    The ten-day notice may be mailed or delivered. Registered or
    certified mail is not required. The ten-day grace period for
    compliance runs from the date of delivery, if the notice is
    delivered. If the notice is mailed, the ten-day period runs from
    the date of mailing and not from the date of receipt. If proof of
    the date of mailing is important, it may be obtained from the post
    office by requesting Post Office Form 3817, Certificate of Mailing,
    which will show the date, the name of the sender, and the
    addressee.
    Pa.R.Civ.P. 237.1, Comment.
    Moreover, Pennsylvania Rule of Civil Procedure 440 sets forth the
    requirements for service of legal papers other than original process. Where,
    as here, there was no attorney, the Rule provides:
    Rule 440. Service of Legal Papers other than Original
    Process
    (a)(1) Copies of all legal papers other than original process filed
    in an action or served upon any party to an action shall be served
    upon every other party to the action….
    ***
    - 14 -
    J-S09033-22
    (2)(i) If there is no attorney of record, service shall be made by
    handing a copy to the party or by mailing a copy to or leaving a
    copy for the party at the address endorsed on an appearance or
    prior pleading or the residence or place of business of the party,
    or by transmitting a copy by facsimile as provided by subdivision
    (d).
    (ii) If such service cannot be made, service shall be made
    by leaving a copy at or mailing a copy to the last known address
    of the party to be served.
    Pa.R.C.P. 440(a)(1), (2)(i) and (2)(ii) (bold in original).
    Here, Mr. Rue maintains the ten-day default notice was not sent to his
    residence since, as of May 24, 2012, he was residing in prison and not at the
    Teesdale Street residence, which is the address to which the ten-day default
    notice was mailed on June 9, 2012. Therefore, he contends the record reflects
    a fatal error, which required the trial court to strike the default judgment. We
    disagree with Mr. Rue’s contention.
    When Ms. Roy filed the praecipe to enter a default judgment against Mr.
    Rue, her attorney properly attached to the document a copy of the ten-day
    notice required by Pa.R.C.P. 237.1. The ten-day notice is addressed to Mr.
    Rue at the Teesdale Street residence.
    Further, the attorney certified the notice was sent via certified mail and
    regular mail to the Teesdale Street residence, which was the address of record
    for Mr. Rue. Additionally, Ms. Roy’s attorney attached an affidavit of non-
    military service to the praecipe to enter default judgment indicating Mr. Rue
    was not in the military and resided at the Teesdale Street residence.
    Accordingly, there was no indication in the certified record that service
    to Mr. Rue at the Teesdale Street residence was improper. See Pa.R.C.P. 440.
    - 15 -
    J-S09033-22
    To the extent Mr. Rue challenges the accuracy of the factual averment in the
    record as to his “correct” address, we note such an issue is more properly
    considered in a proceeding to open the judgment and not to strike it. See
    Resolution Trust Corp. v. Copley Qu-Wayne Associates, 
    546 Pa. 98
    , 
    683 A.2d 269
    , 273 (1996). Thus, considering only the facts of record, we agree
    with the trial court’s determination that no fatal defect or irregularity was
    apparent on the face of the record at the time the default judgment was
    entered. See Bank of New York Mellon, supra.
    Mr. Rue next contends the trial court erred in denying his motion to
    strike because the record reflects a fatal error under Pennsylvania Rule of Civil
    Procedure 236(b) since he was not properly served with the trial court’s
    January 7, 2013, order indicating that an assessment of damages trial against
    Mr. Rue would be held on January 16, 2021, at 9:30 a.m.
    This issue presents us with a question of law, and, accordingly, “our
    standard of review is de novo and our scope of review is plenary.” Osward,
    
    80 A.3d at 793
    .
    Pennsylvania Rule of Civil Procedure 236 relevantly provides:
    Rule 236. Notice by Prothonotary of Entry of Order or
    Judgment
    (a) The prothonotary shall immediately give written notice of the
    entry of
    ***
    (2) any other order or judgment to each party’s attorney of
    record or, if unrepresented, to each party. The notice shall include
    a copy of the order or judgment.
    ***
    - 16 -
    J-S09033-22
    (b) The prothonotary shall note in the docket the giving of the
    notice[.]
    Pa.R.C.P. 236(a)(2), (b) (bold in original).
    In the case sub judice, the certified docket entry contains a notation
    that the Prothonotary provided notice of the order to Mr. Rue in accordance
    with Rule 236. Mr. Rue does not dispute this fact, but he argues the notice
    was insufficient since the Prothonotary mailed the copy of the order to the
    Teesdale Street residence when he was confined in prison.
    There is no dispute that the Teesdale Street residence is the only
    address of record for Mr. Rue.          Accordingly, there is no indication in the
    certified record that the Prothonotary’s providing of notice of the trial court’s
    order to Mr. Rue at the Teesdale Street residence was improper.8 As indicated
    supra, to the extent Mr. Rue challenges the accuracy of the factual averment
    in the record as to his “correct” address, we note such an issue is more
    properly considered in a proceeding to open the judgment and not to strike it.
    See Resolution Trust Corp., supra. Thus, we agree with the trial court’s
    determination that no fatal defect or irregularity was apparent on the face of
    the record.9 See Bank of New York Mellon, supra.
    ____________________________________________
    8There is no indication the Prothonotary’s mailing of the notice was returned
    as undeliverable.
    9 We note Mr. Rue summarily suggests the trial court failed to set forth
    sufficient analysis in its opinion regarding the denial of Mr. Rue’s petition to
    (Footnote Continued Next Page)
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    J-S09033-22
    Mr. Rue next contends the trial court abused its discretion in denying
    his motion to open the default judgment. Initially, he suggests the trial court
    failed to consider whether service of the complaint was proper in this case.
    Moreover, Mr. Rue contends that, in determining whether Mr. Rue promptly
    filed his petition to open the default judgment, the trial court abused its
    discretion in concluding he had “constructive notice” of the default judgment
    as early as 2013. He also contends the trial court erred in concluding he did
    not have a meritorious defense to the allegations contained in the complaint.
    A petition to open a default judgment and a petition to strike a default
    judgment seek distinct remedies and are generally not interchangeable.
    Stauffer v. Hevener, 
    881 A.2d 868
    , 870 (Pa.Super. 2005). Unlike a petition
    to strike a judgment, “a petition to open a judgment is an appeal to the
    equitable powers of the court.” Mother's Restaurant Inc. v. Krystkiewicz,
    
    861 A.2d 327
    , 336 (Pa.Super. 2004) (en banc) (quotation omitted).
    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 or the record, discretion is abused.
    Smith v. Morrell Beer Distributors, Inc., 
    29 A.3d 23
    , 25 (Pa.Super. 2011).
    ____________________________________________
    strike the default judgment. See Mr. Rue’s Brief at 11. In light of our
    discussion supra, we decline to address this issue further and find Mr. Rue is
    not entitled to relief.
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    J-S09033-22
    “Generally speaking, [under Pennsylvania law,] a default judgment may
    be opened if the moving party has (1) promptly filed a petition to open the
    default judgment, (2) provided a reasonable excuse or explanation for failing
    to file a responsive pleading, and (3) pleaded a meritorious defense to the
    allegations contained in the complaint.” Myers v. Wells Fargo Bank, N.A.,
    
    986 A.2d 171
    , 175-76 (Pa.Super. 2009).10 When considering a petition to
    open a judgment, “matters dehors the record filed by the party in whose favor
    the warrant is given, i.e., testimony, depositions, admissions, and other
    evidence, may be considered by the court.” Resolution Trust Corp., 
    683 A.2d at 273
     (citation omitted).
    “However, where the party seeking to open a judgment asserts that
    service was improper, a court must address this issue before considering any
    other factors.” Digital Communications Warehouse, Inc., 223 A.3d at
    288. As our Supreme Court has explained:
    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
    ____________________________________________
    10 Pennsylvania Rule of Civil Procedure 237.3 relevantly provides that “[i]f the
    petition is filed within ten days after the entry of a default judgment on the
    docket, the court shall open the judgment if one or more of the proposed
    preliminary objections has merit or the proposed answer states a meritorious
    defense.” Pa.R.C.P. 237.3(b)(2). Here, there is no dispute that Mr. Rue failed
    to file his petition to open within ten days after entry of the default judgment.
    - 19 -
    J-S09033-22
    pursue a petition to open a judgment, not a petition to strike the
    judgment.
    Cintas Corp., supra, 
    700 A.2d at 919
     (citations omitted).
    Initially, Mr. Rue avers the trial court abused its discretion because it
    “skipped over the service of process issues completely[.]” Mr. Rue’s Brief at
    12. He contends the trial court “never consider[ed] the alleged factual
    inaccuracies in the affidavit of service [for the complaint].” Id. at 13. He
    avers “there was a factual error in the affidavit of service; i.e., the part where
    it indicates that Defendant lived with Debbie Rue at the Teesdale address.”
    Id. at 12.
    We disagree with Mr. Rue’s averment that the trial court failed to
    consider the issue of service of the complaint. Further, we find no abuse of
    discretion in the trial court’s conclusion that Mr. Rue was properly served with
    the complaint when his mother accepted service at the Teesdale Street
    residence.
    In its opinion, the trial court specifically indicated:
    [Mr. Rue] alleges that when the original complaint was
    served, it was served to his parents’ home on Teesdale Street.
    [Mr. Rue] asserts that he was residing either at 8214 Craig Street
    (Philadelphia, PA 19136) or at the St. Ive’s Apartment Complex
    (1340 Stewarts Way, Philadelphia, PA 19154) at that
    time….[Thus,] [Mr. Rue] asserts that service was improper, and
    that the judgment should be opened because he had not received
    proper notice regarding this matter.
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    J-S09033-22
    Trial Court Opinion, filed 11/2/21.11
    In considering the service issue, the trial court concluded “the complaint
    was served to [Mr. Rue’s]…address on Teesdale Street, where service was
    accepted by [Mr. Rue’s] mother.” Id. Thus, the trial court rejected Mr. Rue’s
    contention that he was not properly served with the complaint; but rather, the
    trial court’s holding suggested the Teesdale Street residence was Mr. Rue’s
    residence and his mother accepted service for him at the residence.
    Moreover, we conclude there is ample evidence in support of the trial
    court’s conclusion. For example, in her answer in opposition to Mr. Rue’s
    petition to open, Ms. Roy attached as an exhibit the public records from the
    LexisNexis database, which revealed that Mr. Rue’s last known address, as of
    May of 2010, was the Teesdale Street residence. Further, to demonstrate the
    address pertained to Mr. Rue (and not just to his father), Ms. Roy’s exhibit
    provided information regarding Mr. Rue’s date of birth and social security
    number.12
    Further, we note that, in his petition to open, Mr. Rue failed to establish
    an alternate address where he was living when Ms. Roy served the complaint
    in March of 2011. He asserted he “believes” he was living at an address on
    Craig Street or at the St. Ive’s Apartment Complex. See Mr. Rue’s Petition to
    ____________________________________________
    11   The trial court’s opinion is unpaginated.
    12Mr. Rue has not averred the trial court was not permitted to rely upon this
    exhibit in ruling on the petition to open the default judgment.
    - 21 -
    J-S09033-22
    Open, filed 2/18/21, ¶ 10. However, aside from expressing uncertainty as to
    where he may have been living in March of 2011, Mr. Rue provided no utility
    bills, lease, deed, or other documents to shed light on the matter. See
    Dominic’s Inc. v. Tony’s Famous Tomato Pie & Restaurant, Inc., 
    214 A.3d 259
    , 270 (Pa.Super. 2019) (stating that the “petitioning party [in a
    default judgment] bears the burden of producing sufficient evidence to
    substantiate its alleged defenses”). He also provided no affidavit from a
    roommate or landlord. See 
    id.
     Although Mr. Rue presented the trial court
    with affidavits from his mother, father, and sister, all of whom summarily
    asserted Mr. Rue did not live at the Teesdale Street residence, the affidavits
    shed no light on an alternate address where Mr. Rue allegedly lived in March
    of 2011.
    Based on the aforementioned, the trial court properly considered the
    evidence presented by the parties and did not abuse its discretion in finding
    Ms. Roy properly served the complaint on Mr. Rue’s mother, “an adult family
    member with whom [Mr. Rue] resides[.]” Pa.R.C.P. 402(a)(2)(i). Accordingly,
    Mr. Rue is not entitled to relief on this claim.
    Turning to Mr. Rue’s remaining arguments regarding the denial of his
    petition to open, we note that, if a petition to open a default judgment fails to
    fulfill any one prong of the three-prong test, then the petition must be denied.
    Myers, 
    supra.
     “[T]he trial court cannot open a default judgment based on
    the ‘equities’ of the case when the defendant has failed to establish all three
    - 22 -
    J-S09033-22
    of the required criteria.” US Bank N.A. v. Mallory, 
    982 A.2d 986
    , 995
    (Pa.Super. 2009).
    With regard to the first prong, whether the petition to open was timely
    filed, this Court has held the following:
    The timeliness of a petition to open a judgment is measured
    from the date that notice of the entry of the default judgment is
    received. The law does not establish a specific time period within
    which a petition to open a judgment must be filed to qualify as
    [timely]. Instead, the court must consider the length of time
    between discovery of the entry of the default judgment and the
    reason for delay.
    ***
    In cases where the appellate courts have found a “prompt”
    and timely filing of the petition to open a default judgment, the
    period of delay has normally been less than one month. See
    Duckson v. Wee Wheelers, Inc., 
    620 A.2d 1206
     (Pa.Super.
    1993) (one day is timely); Alba v. Urology Associates of
    Kingston, 
    598 A.2d 57
     (Pa.Super. 1991) (fourteen days is
    timely); Fink v. General Accident Ins. Co., 
    594 A.2d 345
    (Pa.Super. 1991) (period of five days is timely).
    Myers, 
    986 A.2d at 176
     (citation omitted). See Allegheny Hydro No. 1 v.
    American Line Builders, Inc., 
    722 A.2d 189
    , 193-94 (Pa. Super. 1998)
    (holding a 41-day delay in filing a petition to open a default judgment was
    untimely; collecting and setting forth cases holding delays in filing a petition
    to open a default judgment of 21 days and 37 days rendered those petitions
    untimely).
    In the case sub judice, the trial court entered its default judgment
    against Mr. Rue on June 22, 2012, and the court entered its order assessing
    - 23 -
    J-S09033-22
    damages on January 18, 2013. Mr. Rue did not file his petition to open until
    February 18, 2021.
    In his petition to open, Mr. Rue contended the delay was attributed to
    the fact that, in May of 2012, he was committed to prison, where he remained
    until June of 2013. Thus, he argued he did not receive notice of the default
    judgment or the order assessing damages, which were mailed to the Teesdale
    Street residence.    He averred he first learned of the default judgment on
    December 29, 2020, when he was served with post-judgment interrogatories,
    and he filed his petition to open thereafter, on February 18, 2021.
    In addressing the first prong, the trial court indicated:
    [T]he record reveals that [Mr. Rue] was served in 2013 with
    two documents, which referred to the ongoing legal matter, while
    he was incarcerated at SCI-Fayette Street Correctional Facility, as
    indicated by Exhibits A, B, and C contained in [Mr. Rue’s] answer.
    These documents (an Assessment, Worksheet, and Order to [Mr.
    Rue] and a Motion for Approval of Settlement and Distribution of
    Funds) would have given [Mr. Rue] constructive notice of the
    Default Judgment. There is no evidence to suggest that the
    correctional facility failed to inform [Mr. Rue] of these incoming
    documents. Together, these facts suggest [Mr. Rue] was given
    notice of this Default Judgment in 2013 yet failed to file a Motion
    to Open the Judgment until 2021. Therefore, [Mr. Rue] has not
    to [sic] promptly filed a petition to open.
    Trial Court Opinion, filed 11/2/21 (citations to record omitted).
    Mr. Rue contends the trial court’s analysis is flawed since, absent a
    hearing on the matter, the trial court had no way to determine whether Mr.
    Rue actually received the documents while he was in prison in 2013. He notes
    the return of service cards for the documents were signed by someone other
    - 24 -
    J-S09033-22
    than himself.      Mr. Rue’s Brief at 13-14.         Thus, he suggests the evidence
    indicates that the earliest he had actual notice of the default judgment was on
    December      29, 2020, when he            was served with the         post-judgment
    interrogatories.
    Assuming, arguendo, that Mr. Rue is correct, we nevertheless conclude
    Mr. Rue failed to meet the first prong. By his own admission, Mr. Rue was
    aware of the default judgment on December 29, 2020; however, he did not
    file his petition to open until fifty-one days later, on February 18, 2021. He
    has offered no reason for this delay. Accordingly, Mr. Rue has failed to
    establish the prompt filing of his petition to open. 13 See Myers, 
    supra;
    Allegheny Hydro No. 1, 
    supra.
                      Thus, the trial court did not abuse its
    discretion in denying his petition to open.
    For all of the foregoing reasons, we affirm.
    Affirmed.
    ____________________________________________
    13 “As an appellate court, we may affirm the judgment of the lower court where
    it is correct on any legal ground or theory disclosed by the record, regardless
    of the reason or theory adopted by the trial court.” Moss Rose Mfg. Co. v.
    Foster, 
    314 A.2d 25
    , 26 (Pa.Super. 1973) (en banc) (citation omitted).
    - 25 -
    J-S09033-22
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 4/12/2022
    - 26 -