Fox Rothschild v. Marrero, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FOX ROTHSCHILD, LLP : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MIGUEL A. MARRERO, M.D. AND :
MIGUEL A. MARRERO, M.D., P.C. :
: No. 994 WDA 2020
Appellants :
Appeal from the Order Entered August 21, 2020
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 19-014767
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 16, 2021
Appellants, Miguel A. Marrero, M.D., and Miguel A. Marrero, M.D., P.C.
(hereinafter “Dr. Marrero” individually and “Appellants” collectively) appeal
from the order entered on August 21, 2020, denying Appellants’ petition to
strike or open a default judgment entered in favor of Fox Rothschild, LLP
(hereinafter “Fox Rothschild”). We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
On October 18, 2019[, Fox Rothschild] filed a complaint against
[Appellants] for unpaid legal fees. On November 1, 2019[, Fox
Rothschild unsuccessfully] attempted service at [Appellants’] last
known business address [] because [Appellants] had moved. On
November 15, 2019[, Fox Rothschild] reinstated its complaint. A
December 16, 2019 Sherriff’s return indicated that attempted
service at [Dr. Marrero’s] personal residence failed because
[Appellants] failed or refused to respond to notifications left at the
residence. On February 25, 2020, based on these failed attempts
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at service and [Fox Rothschild’s] evidence of a good faith effort to
discover that [Dr. Marrero] still owned the residence, [a] motion
for service pursuant to special order of court, pursuant to
Pa.R.C.P. 430 was granted. On February 26, 2020[, Fox
Rothschild] reinstated its complaint. On March 11, 2020[, Fox
Rothschild] filed two affidavits of service indicating that
[Appellants] had been served both by [forwarding a copy of the
complaint by] first class mail and by the constable posting a copy
on the door of [Dr. Marrero’s] residence. On June 30, 2020[, Fox
Rothschild forwarded] an affidavit of service of important notice
or the “10 day notice” by first class mail and certified mail to [the]
residence. [Appellants] failed to respond. On July 10, 2020[,]
default judgment in the amount of $81,287.44 was awarded to
[Fox Rothschild] and against [Appellants]. Only five days after
entry of the default judgment, on July 15, 2020[,] counsel for
[Appellants] entered his appearance. It is worth noting that the
original attempt to make service of the complaint at [Dr.
Marrero’s] residence, service of the complaint by first class mail,
service of the 10-day notice by first class mail, and service of [the]
praecipe for default judgment by first class mail, were all directed
to the same residential address. On August 21, 2020[,] argument
was held on [Appellants’] petition to strike, or in the alternative,
to open default judgment, which was denied[.]
Trial Court Opinion, 2/2/2021, at 1-2 (superfluous capitalization and original
footnotes omitted). This timely appeal resulted.1
On appeal, Appellants present the following issue for our review:
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1 Appellants filed a timely notice of appeal on September 21, 2020. See
Pa.R.A.P. 903(a) (notice of appeal must be filed within 30 days of the entry of
an order to preserve the right of appeal); 1 Pa.C.S.A. § 1908 (whenever the
last day of a period of time falls on a Sunday, it shall be omitted from the
computation of time). The order denying Appellants’ petition to strike or open
default judgment was entered by a judge who subsequently retired. The case
was reassigned to another judge who did not order Appellants to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Instead, the newly-appointed judge issued an opinion pursuant to Pa.R.A.P.
1925(a) on February 2, 2021, explaining why Appellants were not entitled to
relief.
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I. Whether the trial court erred as a matter of law in denying
Appellants’ petition to strike, or in the alternative, open
default judgment[?]
Appellants’ Brief at 4.
Appellants contend that the trial court erred as a matter of law in
refusing to strike or open the default judgment entered against them in favor
of Fox Rothschild. First, with regard to the petition to strike, Appellants allege
that a fatal defect appears on the record. Id. at 13. In particular, Appellants
claim that Fox Rothschild “never achieved proper service of process upon
Appellants, and their filing of pleadings, specifically their 10[-d]ay [n]otice of
the suit, and in fact, Appellants were not put on notice of the [c]omplaint or
the [10- d]ay [n]otice until after default judgment had already been entered
against them.” Id. Appellants claim that Fox Rothschild failed to exercise
good faith efforts to locate Appellants or render appropriate service of process.
Id. at 14. Appellants argue that Fox Rothschild “did not make inquiries of
postal authorities; inquiries of relatives, neighbors, friends, and employers of
[Appellants]; examinations of local telephone directories, courthouse records,
voter registration records, and motor vehicle records; and a reasonable
internet search.” Id. at 15. As such, Appellants maintain that “the trial court
erred in granting alternative service of original process in this matter at an
address where Appellant Dr. Marrero did not reside and would be unlikely for
Appellants to be put on notice of the suit being brought against him and the
claims he would be likely to defend.” Id. With regard to Appellants’ petition
to open, Appellants claim they promptly filed the petition, raised meritorious
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defenses,2 and pleaded a reasonable basis for their delay in responding.3 Id.
at 17-19.
This Court has previously determined:
A petition to strike a judgment and a petition to open a judgment
are separate and distinct remedies and not interchangeable.
Manor Bldg. Corp. v. Manor Complex Assocs., Ltd., 645 A.2d
843, 845 n.2 (Pa. Super. 1994) (en banc); Neducsin v. Caplan,
121 A.3d 498, 504–505 (Pa. Super. 2015), appeal denied, 131
A.3d 492 (Pa. 2016). A petition to open a judgment seeks to
re-open a case following a default judgment in order to assert a
meritorious defense; a motion to strike a judgment “is the remedy
sought by one who complains of fatal irregularities appearing on
the face of the record.” Cameron v. Great Atl. & Pac. Tea Co.,
266 A.2d 715, 717 (Pa. 1970); accord, N. Forests II, Inc. v.
Keta Realty Co., 130 A.3d 19, 28 (Pa. Super. 2015), appeal
denied, 158 A.3d 1237 (Pa. 2016).
* * *
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.
Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 25 (Pa.
Super. 2011).
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2 More specifically, Appellants argue they raised meritorious defenses because
Fox Rothschild failed to attach a copy of the written contract between the
parties and/or monthly statements purportedly sent to Appellants to its
complaint. Appellants’ Brief at 18-19.
3 Appellants claim their delay in responding resulted because “Appellants were
entirely unaware that suit had been initiated against them, and w[ere] not
placed on notice by appropriate service of process” and the “alternative means
[of service] was not reasonably calculated to place [] Appellants on notice of
the [law]suit.” Appellants’ Brief at 19-20.
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“In general, 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.” Smith, 29 A.3d at 25 (citation omitted). If
a petition to open a default judgment fails to fulfill any one prong
of this test, then the petition must be denied. Myers v. Wells
Fargo Bank, N.A., 986 A.2d 171, 178 (Pa. Super. 2009); see
McFarland v. Whitham, 544 A.2d 929, 930–931 (Pa. 1988)
(holding that failure to provide justifiable explanation for failing to
respond to complaint in a timely manner was sufficient basis to
deny petition); McCoy v. Pub. Acceptance Corp., 305 A.2d 698,
700 (Pa. 1973) (holding that because appellant did not adequately
explain the failure to answer the complaint, the trial court was
justified in refusing to open the judgment); US Bank N.A. v.
Mallory, 982 A.2d 986, 996–997 (Pa. Super. 2009) (affirming
denial of petition to open without needing to analyze third prong
of test).
U.S. Bank Nat'l Ass'n for Pennsylvania Hous. Fin. Agency v. Watters,
163 A.3d 1019, 1027–1028 (Pa. Super. 2017).
Here, upon review of the certified record and applicable law, we
conclude there is no fatal defect and Appellants’ failure to file a responsive
pleading was not reasonable. In this case, Appellants’ primary argument that
they were not aware of Fox Rothschild’s complaint and that alternative service
was not made at Dr. Marrero’s residence is belied by the record. In its motion
for permission to make alternative service upon Appellants, filed on February
25, 2020, Fox Rothschild averred that “[o]n December 16, 2019, the
Allegheny County Sherriff attempted to serve [Appellants] with the
[c]omplaint and [p]raecipe to [r]einstate at [Dr. Marrero’s] personal residence
1606 Franklin Fields Drive, Sewickley, PA 15143.” Motion for Permission to
Make Service Pursuant to Pa.R.C.P. 430, 2/25/2020, at ¶ 5. Fox Rothschild
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attached a copy of the sheriff’s return of service showing the attempt to serve
the complaint and praecipe at the aforementioned address on December 16,
2019. Id. at Exhibit B. Also attached to the motion was an affidavit of Richard
Holyworth, Esquire, an attorney with Fox Rothschild in which he stated that
he reviewed the publicly available real estate records and confirmed that Dr.
Marrero owned the residential property located at the Franklin Fields’ address
and paid taxes on said property. Id. at Exhibit C. Moreover, attached to the
petition to strike or open default judgment, Appellants affixed a copy of a
complaint in divorce filed by Dr. Marrero on December 18, 2020, which he
verified on December 17, 2019. See Petition to Strike or Open Default
Judgment, 1/26/2020, Exhibit B. Dr. Marrero verified that he resided at
1606 Franklin Fields Drive, Sewickley, PA 15143. Exhibit B, Divorce
Complaint, 12/18/2020, at ¶ 1. As such, two days after the sheriff attempted
to serve Fox Rothschild’s complaint and praecipe to reinstate at the Franklin
Fields’ address, Dr. Marrero confirmed the same address as his personal
residence in his divorce action. Accordingly, we reject Appellants’ suggestion
that they did not receive notice of the Fox Rothschild complaint. Hence, there
is no fatal defect on the face of the record and there was no reasonable excuse
or explanation for Appellants’ failure to file a responsive pleading. Therefore,
there was no error of law or abuse of discretion in denying Appellants’ petition
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to strike or open the default judgment entered against them. Appellants’ sole
appellate claim lacks merit.4
Order affirmed. Application to Recover Fees and Costs denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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4 Finally, we note that on August 9, 2021, Fox Rothschild filed an application
with this Court for a bill of costs and fees in the amount of $1,600.00 for
preparing a reproduced record when Appellants failed to do so. We deny that
request.
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