Lin, Z. V. Bernard, J. ( 2023 )

J-A07028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ZHI LIN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACK M. BERNARD :
:
Appellant : No. 831 EDA 2022
Appeal from the Order Entered March 21, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 2108000779
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 2, 2023
Jack M. Bernard appeals from the trial court order denying his petition
to open the default judgment entered against him and in favor of Zhi Lin. We
affirm.
Lin initiated a negligence and breach of contract action against Bernard
in August 2021 and subsequently filed an affidavit of service confirming that
personal service occurred in September and October 2021. On December 4,
2021, Bernard’s counsel entered an appearance. In December 2021, Lin filed
a praecipe for entry of default judgment. Lin attached to it a copy of the
certificate of service of the notice of praecipe to enter the default judgment,
stating the notice had been served by mail on November 24, 2021. The court
entered the default judgment on December 8, 2021.
On December 20, 2021, Bernard filed a petition to open the judgment
by default, arguing the affidavit of service was fraudulent and claiming he had
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not been served with the complaint and had not received notice of intent to
enter default. He also attached preliminary objections raising improper service
of process, lack of personal jurisdiction for failure to serve the complaint, and
failure to conform to law or rule of court for failing to plead whether the
contract was written or oral and, if written, to attach the contract.
In January 2022, the trial court issued a rule to show cause why the
petition should not be granted. At the hearing, Bernard claimed he had
received a package from Lin in August 2021 that included a letter referencing
the enclosed complaint and some papers, but not the complaint. N.T., Mar.
16, 2022, at 7-9. However, Bernard then abandoned his argument regarding
service, and proceeded only on the claim that he raised a meritorious
preliminary objection because Lin did not properly plead whether the contract
was written or oral and, if written, failed to attach the contract, as required
by Pa.R.C.P. 1019(h) and (i). Id. at 35-36. Bernard argued the court had to
open the judgment under Pa.R.C.P. 237.3. Id. at 10-12.
The court denied the petition to open the default judgment, finding
Bernard had not asserted a meritorious defense. Bernard filed a timely appeal.
Bernard raises the following issues:
1. Did the trial court commit an error of law when it denied
[Bernard’s] Petition to Open the Default Judgment entered
on December 8, 2021?
2. Did the trial court commit an error of law in its application
of Pa.R.C.P. No. 237.3(b)(2) to [Bernard’s] timely Petition
to Open the Default Judgment with his proposed Preliminary
Objections (“Petition”) attached thereto?
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3. Did the trial court commit an error of law in determining
that [Bernard] was required to plead a meritorious defense
instead of one or more preliminary objections with merit?
Bernard’s Br. at 7. Bernard’s claims are related, and we will address them
together.
Bernard argues that under Rule 237.3, if a petition to open is filed within
ten days of the entry of the default judgment, the court must grant it where
the petitioner attaches one or more meritorious preliminary objections. He
points out he filed the motion to open within ten days of the entry of default
judgment. He then argues he attached his preliminary objections, which
included improper service of process, lack of personal jurisdiction, and failure
to conform to rule of court or law because Lin did not attach a copy of the
contract.
Bernard argues that because Lin did not plead whether the contract was
written or oral or attach a copy of any written agreement, his third preliminary
objection had merit and therefore the court had to grant the petition to open.
Bernard relies on Estate of Bradley v. A.B.E. Group, No. 2461 EDA 2021,
2022 WL 4282829 (Pa.Super. filed Sept. 16, 2022) (unpublished
memorandum), as persuasive authority that he claims supports his argument
that the court must grant the petition to open if the objection has merit and
would normally be granted at the preliminary objection stage. He further
argues on appeal that he was not properly served in Massachusetts, as the
mail delivery was not signed for by Bernard or an authorized agent.
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“[A] petition to open a default judgment is an appeal to the equitable
powers of the court, and absent an error of law or a clear, manifest abuse of
discretion, it will not be disturbed on appeal.” Myers v. Wells Fargo Bank,
N.A., 986 A.2d 171, 175 (Pa.Super. 2009) (quoting US Bank N.A. v.
Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)). “An abuse of discretion occurs
when a trial court, in reaching its conclusions, overrides or misapplies the law,
or exercises judgment which is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will.” Id. (quoting Mallory, 982 A.2d at 994).
A court may open a default judgment “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.” Id. at 176. “[A] meritorious defense is . . . a defense . . . that if
proved at trial would justify relief.” Smith v. Morrell Beer Distr., Inc., 29
A.3d 23, 26 (Pa.Super. 2011) (quoting Penn-Delco Sch. Dist. v. Bell Atl.-
Pa. Inc., 745 A.2d 14, 19 (Pa.Super. 1999)).
Under Rule 237.3(b)(2), the first and second prongs of the test are
presumed to be met, and the trial court must open the judgment if the
petitioner filed the petition to open within 10 days of the entry of the default
judgment and one or more proposed preliminary objections has merit:
(2) If 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.
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Pa.R.C.P. 237.3(b)(2). Rule 237.3(b)(2) “does not change the law of opening
judgments.” Rule 237.3, Note. “Rather, the rule supplies two of the three
requisites for opening such judgments by presupposing that a petition filed as
provided by the rule is timely and with reasonable explanation or legitimate
excuse for the inactivity or delay resulting in the entry of the judgment.” Id.In Estate of Bradley, 2022 WL 4282829, at *1, this Court reversed the
denial of a petition to open where it was filed within ten days of the entry of
the default judgment, and it raised a demurrer to a request for attorney fees.1
We pointed out that Rule 237.3 did not alter the law of opening judgment,
“but merely ease[d] the burden of a party against whom judgment has been
entered and who move[d] promptly for relief from that judgment.” Id. at *2.
We reasoned that when the petition to open is filed within 10 days, the “only
relevant point of inquiry for the trial court” is whether the petitioner alleged
“a meritorious defense in [the] preliminary objections.” Id. at *3. We
reiterated that the requirement of a meritorious defense is that a “defense
must be pleaded that if proved at trial would justify relief.” Id. at *4 (citation
omitted). We concluded that the petitioner in the Estate of Bradley had
raised a meritorious defense because if the petitioner proved that no statute
or agreement provided for the recovery of counsel fees, and no other
exception applied, the petitioner would be entitled to relief. Id. at *5.
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1This Court may cite its unpublished non-precedential memoranda filed after
May 1, 2019, for their persuasive value. Pa.R.A.P. 126(b).
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Here, the trial court found that Bernard did not include a meritorious
preliminary objection. The court found that Bernard’s third objection—failure
to conform to Pa.R.C.P. 1019(h) and (i) by not stating whether the agreement
was oral or written or attaching a written contract—lacked merit. It reasoned
that the objection would not justify relief at trial, as it did “not address the
crux of the complaint, negligence and malpractice,” and would not justify relief
on the claims.2 Trial Court Opinion, June 8, 2022, at 4. It further found that a
judgment should not be opened on a mere technical ground, and the failure
to attach a contract or allege whether it was oral or written, was a technical
defense. Id.
The court did not abuse its discretion in finding Bernard’s third
preliminary objection did not raise a meritorious defense for purposes of the
petition to open. The failure to allege whether the contract was written or oral
or to attach a written complaint was a curable error in pleading and would not
justify relief at trial. Moreover, in addition to the contract claim, the complaint
asserted a claim for negligence.
On appeal, Bernard argues that the service was improper because it was
not signed for by him or an authorized agent. He did not raise this argument
before the trial court. He therefore waived this claim and we will not consider
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2 The complaint alleged that Bernard was Lin’s attorney and failed to file
responses or appear at scheduled conferences.
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it on appeal. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the
trial court are waived and cannot be raised for the first time on appeal”).3, 4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/2/2023
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3 In the preliminary objections, Bernard claimed he had not been served. At
the hearing, he clarified he received the package, but claimed it did not include
the complaint. He then only sought relief based on his claim that the complaint
failed to conform to Pa.R.C.P. 1019(h) and (i). See N.T., Mar. 16, 2022, at
35-36; Trial Ct. Op. at 3.
4 If Bernard had raised on appeal the same claim he raised in the trial court,
that is, he did not receive the complaint, we would conclude the court did not
abuse its discretion in finding he abandoned this claim and that it lacked merit.
See Trial Ct. Op. at 3.
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