Gray, P. v. Lewis, W. ( 2021 )

J-S16036-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PATRICIA GRAY A/K/A PATRICIA : IN THE SUPERIOR COURT OF
JACKSON GRAY AND T. BARRY GRAY : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 34 EDA 2021
WANDA LEWIS, IN THE BEGINNING, :
INC., GWENDOLYN L. JACKSON, :
INGRID D. JOHNSON, WYNNEFIELD :
EDUCATIONAL SERVICES, AND :
BRANDON D. JACKSON :
Appellees
ROCHELLE BILIAL
Garnishee
Appeal from the Order Entered December 11, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 091104571
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 21, 2021
Appellants Patricia Gray a/k/a Patricia Jackson Gray and T. Barry Gray
purport to appeal pro se from the Orders entered in the Court of Common
Pleas of Philadelphia County on December 3 and December 11, 2020, granting
Garnishee Rochelle Bilal's Motion to Vacate Writ of Attachment and Petition to
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* Former Justice specially assigned to the Superior Court.
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Open Default Judgement.1 For the reasons that follow, because the December
11, 2020, Order is without legal effect, we lack jurisdiction to address this
matter and quash the appeal.
The trial court set forth the facts and complex procedural history herein
as follows:
This case stems from [Appellant’s] November 26, 2009,
Complaint against all the foregoing Defendants claiming, inter
alia, damages from an illegal transfer of real property. However,
the appeal sub judice narrowly concerns Appellants[’] July 22,
2020, Praecipe to Issue Writ of Attachment and September 27,
2020, Motion for Default Judgement, against Garnishee/Appellee
Rochelle Bilal (“Garnishee”) which this [c]ourt granted unopposed
on October 22, 2020.1 Following the July 22, 2020, Praecipe to
[I]ssue Writ of Attachment and this [c]ourt’s October 22, 2020,
Order granting Appellants' Motion for Default Judgment, on
November 5, 2020, Brian R. Cullin, Esq. entered his appearance
on behalf of Garnishee.
On November 5, 2020, Garnishee filed a Motion to Vacate
the July 22, 2020, Writ of Attachment and a separate Petition to
Open the October 22, 2020, Default Judgement. Instead of filing
a notice of no opposition to Garnishee’s motions, or any response
under those motions' respective control numbers, Appellants filed
a self-styled “Praecipe to Vacate the October 22, 2020, Judgment”
as well as a self-styled “Praecipe to Dissolve the Writ of
Attachment”. These praecipes were without legal effect and the
Office of Judicial Records did not amend the docket based on
Appellants' filings. Accordingly, on December 3, 2020, this [c]ourt
granted Garnishee's Motion to Vacate Writ of Attachment
unopposed and the Office of Judicial Records amended the docket
to reflect the same. On December 9, 2020, Appellants filed an
appeal of this [c]ourt’s December 3, 2020, Order only. On
December 11, 2020, this [c]ourt granted Garnishee's Petition to
Open Default Judgment and the Office of Judicial Records
amended the docket to reflect the same. On December 19, 2020,
Appellants filed an appeal from this [c]ourt’s December 11, 2020,
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1 Appellants discontinued the appeal of the December 3, 2020, Order. See
infra.
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Order. Meanwhile, on December 17, 2020, Appellants filed a
Motion for Reconsideration with respect to this [c]ourt’s December
3 and December 11, 2020, Orders. Appellants argued that
Garnishee's Motion to Vacate Writ and Petition to Open Default
were moot based on Appellants’ November 14, 2020, Praecipes to
dissolve the Writ of Attachment and vacate the Default Judgment.
However, Appellants had already filed their Notices of Appeal to
the Superior Court and, as such, this [c]ourt was without
jurisdiction to consider or rule on the Motion for
Reconsideration.[2] Accordingly, this [c]ourt ordered Appellants to
file a Concise Statement of Matters Complained of on Appeal with
respect to both the December 3 and December 11, 2020 Orders
and Appellants timely filed both 1925(b) Statements.
__
1 It should be noted at the outset that Rochelle Bilal is currently
the Sheriff for the City of Philadelphia and this [c]ourt is wholly
unaware of the context surrounding her involvement in this Case.
Moreover, this [c]ourt is unaware of Garnishee's involvement in
the underlying case before the instant Writ of Attachment and
Default Judgment were entered.[3]
Trial Court Opinion filed 1/27/21, at 1-3.
By way of further background, because an order granting a petition to
open default is neither a final order nor an interlocutory order appealable as
of right, this Court issued a rule to show cause why the appeal at No. 34 EDA
2021 should not be quashed. See Pa.R.A.P. 341(b)(1) (defining a final order
as one that disposes of all claims and parties); see also Pa.R.A.P. 311(a)(1)
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2 On December 9, 2020, Appellants filed a notice of appeal from the Order
entered on December 3, 2020, to this Court at appeal No. 33 EDA 2021;
Appellants Appealed the December 11, 2020, Order to this Court at No. 34
EDA 2021 while subsequently discontinuing the appeal filed at No. 33 EDA
2021.
3 Garnishee is listed as “Rochelle Bilal” rather than the Sheriff for the City of
Philadelphia notwithstanding the fact that Garnishee personally possesses no
property belonging to Appellants. See Plaintiff’s Motion to enter Judgment by
Default against Garnishee Rochelle Bilal, Sept. 27, 2020.
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(stating that interlocutory appeal may be taken as of right from order refusing
to open judgment). Appellants responded that the December 11, 2020, Order
“is a nullity, challengeable at any time” because the trial court lacked both the
authority and jurisdiction to open a non-existent judgment. Appellants further
argued that the trial court erred in granting the motion to vacate and vacating
the default judgment because they had filed a praecipe to vacate the default
judgment and to discontinue/dissolve writ of attachment. The trial court
found, however, that Appellants’ self-styled praecipes were without legal
effect and, further, that the issues were moot because Appellants stipulated
to the outcome of vacating the writ of attachment and default judgment.
Based upon Appellants’ response, it appears as though the trial court’s
entry of the December 11, 2020, Order likely caused Appellants to discontinue
the appeal at No. 33 EDA 2021. In similar circumstances, this Court has
granted relief from the effects of a breakdown in the court system. See
Pa.R.A.P. 105 (allowing this Court to disregard requirements of any rules of
appellate procedure in the interest of expediting decisions, or for other good
cause shown); see also Commonwealth v. Braykovich, 664 A.2d 133, 138
(Pa.Super. 1995) (holding that appeal was proper where appellant’s failure
involved a breakdown in the court system); Commonwealth v. Khalil, 806
A.2d 415, 421 (Pa.Super. 2002) (finding that review was proper where
breakdown of trial court processes caused untimely appeal).
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The issue Appellants seek to raise at No. 34 EDA 2021 is whether “the
trial court erred in not dismissing or denying [Garnishee’s] motion to vacate
judgment and vacating the judgment by default.” See Appellants’ Civil
Docketing Statement, Section (E)(2). This issue arises, however, from the
order appealed from in No. 33 EDA 2021, which Appellants discontinued.
In light of the foregoing, we find the trial court’s entry of the December
11, 2020, Order granting the petition to open default judgment was likely a
breakdown in the court system that seemingly caused Appellants to
discontinue the appeal at No. 33 EDA 2021 even though it properly brought
forth the issue Appellants now seek to address at No. 34 EDA 2021. Thus, in
accordance with Braykovich and Khalil, supra, we will consider the following
issue Appellants presented for our review:
Did the trial court err in granting the Garnishee’s order[4] to open
the default judgment?
Brief for Appellants at 4.
None of the Defendants have filed an appellate brief, for
Appellants have challenged only the trial court’s grant of Garnishee’s
Motion to Vacate Writ and Petition to open a default judgment.
However, Garnishee, in her capacity as the Sheriff for the City of
Philadelphia, has filed a participant’s brief.
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4 Appellant’s apparently meant to refer to Garnishee’s “Petition/Motion” rather
than “order,” for clearly only the trial court could have entered an order from
which an appeal can be taken with this Court.
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As a prefatory matter, we must determine whether we have jurisdiction
over this matter or whether we must transfer the case to Commonwealth
Court. “The Superior Court and the Commonwealth Court, on their own motion
or on application of any party, may transfer any appeal to the other court for
consideration and decision with any matter pending in such other court
involving the same or related questions of fact, law or discretion.” Pa.R.A.P.
751(a).5 As the instant action involves an action filed against the Sheriff’s
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5 Pennsylvania Rule of Appellate Procedure 751 addresses the transfer of
erroneously filed cases and states, in relevant part, as follows:
(a) General rule. If an appeal or other matter is taken to or
brought in a court or magisterial district which does not have
jurisdiction of the appeal or other matter, the court or
magisterial district judge shall not quash such appeal or
dismiss the matter, but shall transfer the record thereof to
the proper court of this Commonwealth, where the appeal
or other matter shall be treated as if originally filed in
transferee court on the date first filed in a court or
magisterial district.
Pa.R.A.P. 751(a) (emphases added). In addition, 42 Pa.C.S.A. § 704(a)
states:
§ 704. Waiver of objections to jurisdiction.
(a) General rule. — The failure of an appellee to file an
objection to the jurisdiction of an appellate court within such
time as may be specified by general rule, shall, unless the
appellate court otherwise orders, operate to perfect the
appellate jurisdiction of such appellate court,
notwithstanding any provision of this title, or of any general
rule adopted pursuant to section 503 (relating to
(Footnote Continued Next Page)
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Office of the City of Philadelphia, it would appear at first blush that jurisdiction
lies with the Commonwealth Court pursuant to 42 Pa.C.S.A. § 762. That
statute provides, in pertinent part, as follows:
§ 762. Appeals from courts of common pleas
(a) General rule.--Except as provided in subsection (b), the
Commonwealth Court shall have exclusive jurisdiction of appeals
from final orders of the courts of common pleas in the following
cases:
(1) Commonwealth civil cases.--All civil actions or proceedings:
(i) Original jurisdiction of which is vested in another tribunal
by virtue of any of the exceptions to section 761(a)(1) (relating
to original jurisdiction), except actions or proceedings in the
nature of applications for a writ of habeas corpus or post-
conviction relief not ancillary to proceedings within the appellate
jurisdiction of the court.
(ii) By the Commonwealth government, including any officer
thereof acting in his official capacity.
42 Pa.C.S.A. § 762(a)(1)(i),(ii).
Garnishee has not objected to this Court’s jurisdiction on the grounds
that it is properly held by the Commonwealth Court. We are mindful this Court
has explained that where neither party has objected to our jurisdiction of an
appeal, we may exercise jurisdiction pursuant to 42 Pa.C.S.A. § 704(a) and
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reassignment of matters), vesting jurisdiction of such
appeal in another appellate court.
42 Pa.C.S.A. § 704(a).
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Pa.R.A.P. 751(a). However, we also “retain the power and, indeed, the
responsibility to determine whether retention of jurisdiction in this case is
appropriate or, alternatively, whether the matter should be transferred to the
Commonwealth Court.” Wilson v. School District of Philadelphia, 600
A.2d 210, 211 (Pa.Super. 1991) (footnote and citations omitted).
Furthermore, once we have:
concluded that this matter is within the Commonwealth Court's
jurisdiction, it is within our discretion to determine whether
transfer to that court is appropriate. In making this determination,
we conduct a case-by-case analysis. We may retain jurisdiction if
such action would serve the interests of judicial economy but
should transfer the matter if to do so would serve other interests,
such as avoiding the establishment of possibly conflicting lines of
authority.
Id. at 213 (citations omitted).
When deciding to retain or transfer an appeal, we must balance the
interests of the parties and matters of judicial economy against other factors
such as:
(1) whether the case has already been transferred; (2) whether
our retention will disrupt the legislatively ordained division of labor
between the intermediate appellate courts; and (3) whether there
is a possibility of establishing two conflicting lines of authority on
a particular subject. Moreover, each transfer should be decided
on a case-by-case basis.
Mohn v. Bucks Cty. Republican Comm., 218 A.3d 927, 933 (Pa.Super.
2019).
It is axiomatic that “we should be most cautious in assuming jurisdiction
over matters that properly belong before the Commonwealth Court.” Lara,
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Inc. v. Dorney Park Coaster Co., Inc., 534 A.2d 1062, 1066 (Pa.Super.
1987). On the other hand, if resolution of the instant issue merely requires
this Court to apply well-settled principles of law, transfer to the
Commonwealth Court serves little purpose. Newman v. Thorn, 518 A.2d
1231, 1236 (Pa.Super. 1986).
Herein, this case was filed and briefed before this Court and the
resolution of the issue Appellants present on appeal requires us to apply
well-settled principles of law to pertaining to petitions to open default
judgments; therefore, in the interest of judicial economy, we will
consider this appeal.
Appellants contend a trial court lacks the authority to grant an
order to open a judgment after that same court has previously vacated
the judgment. Appellants reason it was impossible for Garnishee to
have satisfied any of the necessary elements to open the default
judgment because the trial court’s Order entered on December 3, 2020,
had vacated that judgment. Brief for Appellants at 8, 10. Appellants
ask this Court “to find that the trial court should deny Garnishee[’s]
Petition To Open Judgment as being moot, since judgment was
previously vacated.” Id. at 11.
We begin by stating our standard of review:
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
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court, and we will not overturn that decision ‘absent a manifest
abuse of discretion or error of law.’
Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa.Super. 2000) (citation
omitted). “An abuse of discretion is not a mere error in 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.” Id.(citation omitted). Generally speaking, a default judgment may be opened if
the moving party has (1) promptly filed a petition to open the default
judgment, (2) pleaded a meritorious defense to the allegations contained in
the complaint, and (3) provided a reasonable excuse or explanation for failing
to file a responsive pleading. Id. at 1281.
As previously stated, the trial court entered its December 11, 2020,
Order opening the default judgment after it had issued its Order vacating the
judgment on December 3, 2020. Appellants appeal the latter Order arguing
it is a legal nullity, but what Appellants fail to acknowledge is that the appeal
itself is moot, for Appellants already have achieved the result they wished-
that the Writ of Attachment and Default Judgment be vacated. As such, as
the trial court found, there presently exists no case in controversy, and
Appellants’ claim on appeal is moot. See Johnson v. Martofel, 797 A.2d
943, 946 (Pa.Super. 2002) (stating “[a]n issue before a court is moot if in
ruling upon the issue the court cannot enter an order that has any legal force
or effect.”).
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Even if this were not the case, this Court would lack jurisdiction to hear
this appeal as it is an appeal of an interlocutory order. Pennsylvania Rule of
Appellate Procedure 311 provides, in relevant part, as follows:
a) General rule.--An appeal may be taken as of right and without
reference to Pa.R.A.P. 341(c) from:
(1) Affecting judgments.--An order refusing to open, vacate, or
strike off a judgment. If orders opening, vacating, or striking off
a judgment are sought in the alternative, no appeal may be filed
until the court has disposed of each claim for relief.
Pa.R.A.P. 311
The above provision allows only for appeals from orders refusing to
open, vacate or strike a judgment; however, the December 11, 2020, Order
granted Garnishee’s Petition to Open Default Judgment.
Being a legal nullity, the December 11, 2020, Order opening the default
judgment was not an interlocutory order appealable as of right under Pa.R.A.P.
311(a)(1). In the alternative, Appellants have not asked permission to appeal
nor have they argued that the December 11, 2020, Order is collateral and
appealable as of right. Therefore, this Court is without jurisdiction in this
matter, and we quash the appeal.
Appeal quashed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2021
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