ABC Home Sales v. Harrison, J. ( 2021 )

J-S29031-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ABC HOME SALES LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JIMMIE HARRISON AND TESSIE :
HARRISON :
: No. 364 EDA 2021
Appellants :
Appeal from the Order Entered January 7, 2021
In the Court of Common Pleas of Bucks County Civil Division at No(s):
No. 2014-06512
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 26, 2021
Appellants, Jimmie Harrison and Tessie Harrison, appeal from the
January 7, 2021 order denying their petition to open default judgment entered
in favor of Appellee, ABC Home Sales LLC. After careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On September 17, 2014, a complaint in assumpsit was
filed by ABC Home Sales, LLC by and through its agent
Pennwood Properties, Inc. [] ABC Home Sales, LLC is
a limited liability company while [] Pennwood
Properties, Inc. is a corporation in Pennsylvania.
Appellants were tenants of a manufactured home
covered by a lease agreement with Appellees. The
term of the lease was for a period of seventeen
months beginning on August 1, 2013 and ending on
December 31, 2014. Under the terms of the lease,
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* Former Justice specially assigned to the Superior Court.
J-S29031-21
Appellants were required to pay monthly rent on the
first day of each month and failure to pay was
considered default. Appellees[] allege in their
complaint that Appellant[]s were served with a Notice
of Default for their failure to pay rent in the amount
of $27,450.00 and as a result were in breach of
contract. Including late charges, the total amount
owed to Appellees was $30,500.00.
On September 22, 2014, Appellants were served
when a sheriff personally handed Appellant Jimmie
Harrison the complaint.
On November 6, 2014, Appellees filed a praecipe to
enter default judgment against Appellants in the
amount of $30,500.00 for failure to file a response to
the complaint. Attached to the praecipe was a
certificate of service evidencing the required service
of the Notice of Default by certified mail upon
Appellants on October 16, 2014. On November 6,
2014, the Prothonotary, pursuant Pa.R.C.P. 236, gave
written notice to Appellants of the entry of default
judgment against them.
On September 23, 2019, Appellees filed a praecipe to
revive judgment.
On June 26, 2020, Appellants filed a petition to open
default judgment. On July 10, 2020, this Court issued
a rule to show cause why the default judgment should
not be opened. On July 13, 2020, Appellees filed an
answer to the petition to open judgment.
On January 7, 2021, th[e trial c]ourt denied
Appellants’ petition to open default judgment. On
February 5, 2021, Appellant[s] filed this current
appeal to the Superior Court.
Trial court opinion, 4/8/21 at 1-2 (citations and parentheticals omitted).1
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1 The record reflects that Appellants and the trial court have complied with
Pa.R.A.P. 1925.
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Appellants raise the following issues for our review:
1. Whether the trial court erred in denying
Appellants’ petition to open default judgment
where the actual plaintiff, Pennwood Properties,
Inc., was not in privity with Appellants nor did
Appellants authorize this party to bring litigation
against them[?]
2. Whether the trial court erred in denying
Appellants’ petition to open default judgment
where no evidentiary hearing was held
notwithstanding Appellants’ allegations that
there was no default on any promise to pay,
never took possession of the mobile home, that
the mobile home was purportedly acquired by
another party and Appellants pursued due
diligence in filing their petition to open default
judgment[?]
3. Whether the trial court erred in denying
Appellants’ petition to open default judgement
where Appellants met the standard for the
granting of a petition to open a default
judgment[?]
Appellants’ brief at 4.
Our standard of review of a denial of a petition to open a default
judgment is well settled:
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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Appellants contend that the trial court erred in denying their petition to
open default judgement because they satisfied the three-prong test for
granting such a petition. (Appellant’s brief at 13-15.) We disagree.
Pennsylvania Rule of Civil Procedure 237.3 governs the opening of
default judgments and provides, in relevant part, that a court must open the
judgment where a party files a petition to open within ten days of its entry.
See Pa.R.C.P. 237.3(b)(1). However, where a party fails to file a petition to
open within ten days after the entry of judgment, as is the case here, we apply
the following three-prong test:
[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. If a petition to open a default
judgment fails to fulfill any one prong of this test, then
the petition must be denied.
U.S. Bank National Association v. Watters, 163 A.3d 1019, 1028
(Pa.Super. 2017) (citations and internal quotation marks omitted), appeal
denied, 170 A.3d 973 (Pa. 2017).
Instantly, the trial court found that Appellants did not promptly file their
petition to open the default judgment or provide a reasonable excuse or
explanation for failing to respond to the complaint. See trial court opinion,
4/8/21 at 4.
This Court has recognized that “[t]he timeliness of a petition to open a
judgment is measured from the date that notice of the entry of the default
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judgment is received.” Digital Communications Warehouse, Inc. v. Allen
Investments, LLC, 223 A.3d 278, 285 (Pa.Super. 2019) (citation omitted).
The law does not establish a specific time frame within which a petition to
open a judgment must be filed to qualify as timely, but rather, directs the
court consider the length of time between notice of the entry of the default
judgment and the reason for the delay. Id. at 285-286.
Generally, “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.” US Bank N.A. v. Mallory, 982
A.2d 986, 995 (Pa.Super. 2009) (citations omitted; emphasis added).
In the instant matter, default judgment was entered on November 6,
2014, and notice thereof was provided to Appellants on that same date.
Appellants waited until June 26, 2020, more than 5½ years after the default
judgment was entered against them, to file their petition to open. Accordingly,
we agree with the trial court that that the delay in this case does not constitute
a prompt filing, and therefore, we find no abuse of discretion on this basis.
Turning to the second prong, the trial court found that Appellants did
not provide a reasonable excuse or explanation for failing to file a responsive
pleading, stating as follows:
[T]his [trial c]ourt found that Appellants failed to
provide a reasonable explanation or delay that
resulted in the entry of default judgment. In their
petition, Appellants state that they “did not receive
the complaint and were unaware of its existence.”
From a review of the docket, this statement is does
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not rise to a reasonable explanation. On September
17, 2014, the complaint was filed. On September 22,
2014, the sheriff served Appellants pursuant Pa.R.C.P.
402(a)(1)(i) at [street address omitted], Newtown,
Pennsylvania, and Appellant Jimmie Harrison was
served. Even if Appellants’ contention were true, that
their son, Jimmie Harrison, Jr., were served instead of
Appellant Jimmie Harrison, Sr., service was still
proper because service was made upon an adult
member of the family.
Trial court opinion, 4/8/21 at 4 (citation omitted).
We discern no abuse of discretion in the trial court’s assessment.
“Whether an excuse is legitimate is not easily answered and depends upon
the specific circumstances of the case. The appellate courts have usually
addressed the question of legitimate excuse in the context of an excuse for
failure to respond to the original complaint in a timely fashion.” US Bank
N.A., 982 A.2d at 995 (citation and internal bracket omitted). This Court has
“addressed the question of legitimate excuse in the context of an excuse for
failure to respond to the original complaint in a timely fashion.” Id. (citation
omitted).
Here, our review of the certified record supports the trial court’s
conclusion that the September 22, 2014 service of the complaint was proper
under Rule 402(a),2 a fact which Appellants acknowledge in their petition. See
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2 Rule 402(a) provides, in relevant part, as follows:
(a) Original process may be served
(1) by handing a copy to the defendant; or
(Footnote Continued Next Page)
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“Petition of [Appellants] to Open Default Judgment,” 6/26/20 at ¶ 7 (stating,
“[u]fortunately, while the record reflects good service on [Appellants]….”).
Accordingly, the trial court did not err in concluding that Appellants failed to
provide a reasonable excuse or explanation for not filing a responsive
pleading.3
Appellants next argue that the trial court erred in denying their petition
to open default judgment because Pennwood Properties, Inc. (hereinafter,
“Pennwood”) was not in privity with Appellants nor authorized to file a
complaint on behalf of Appellee. (Appellant’s brief at 9-10.) We disagree.
Pennsylvania Rule of Civil Procedure 2002 governs the prosecution of
actions by real parties in interest and the exceptions thereto, and provides, in
relevant part, as follows:
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(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.Civ.P. 402(a).
3 We note that the trial court opinion does not address whether Appellants
satisfied the third prong, namely, whether they pled a meritorious defense to
the allegations contained in the complaint. See U.S. Bank National
Association, 163 A.3d at 1028. However, this Court has recognized that in
situations where the first or second prongs are not satisfied, analysis of the
third prong is unnecessary. See Myers v. Wells Fargo Bank, N.A., 986
A.2d 171, 178 (Pa.Super. 2009) (noting that the trial court need not analyze
the meritorious defense prong where the other prongs were not met).
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(a) Except as otherwise provided in clauses (b), (c)
and (d) of this rule, all actions shall be
prosecuted by and in the name of the real party
in interest, without distinction between
contracts under seal and parol contracts.
(b) A plaintiff may sue in his or her own name
without joining as plaintiff or use-plaintiff any
person beneficially interested when such
plaintiff
(1) is acting in a fiduciary or representative
capacity, which capacity is disclosed in the
caption and in the plaintiff's initial
pleading; or
(2) is a person with whom or in whose name
contract has been made for the benefit of
another.
Pa.R.Civ.P. 2002(a), (b).
Instantly, our review of the record establishes that the complaint filed
against Appellants in this matter was proper on its face and complied with the
Pennsylvania Rules of Civil Procedure. Pursuant to Rule 2002(b)(1),
Pennwood properly identified its representative capacity in both the caption
and the body of the complaint. Specifically, the “Plaintiff” in this case was
identified in the caption and initial paragraph of the complaint as “ABC Home
Sales, LLC by and through its agent Pennwood Properties, Inc.” See
“Complaint,” 9/17/14 at ¶ 1.
The record further reflects that the complaint was verified by “Linda
Page, President of Pennwood Properties, Inc., agent of ABC Home Sales, LLC.”
Id. Moreover, Appellee-Plaintiff averred in paragraph 5 of the complaint that
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“Pennwood Properties is the agent of Plaintiff and is duly authorized to collect
rents, enforce the terms and conditions of the Lease and to bring suit to
enforce violations of the same.” Id. at ¶ 5.
Based on the foregoing, we find that Appellants’ claim that Pennwood
was not in privity with Appellants nor authorized to file a complaint on behalf
of Appellee is meritless. Accordingly, Appellants’ contention that their petition
to open default judgment should have been granted on this basis must fail.
In their final claim, Appellants contend that the trial court’s order
denying their petition to open default judgment should be vacated because
the trial court failed to conduct an evidentiary hearing on the matter.
(Appellant’s brief at 11-12.) Appellants, however, have cited no case law or
other authority in support of their contention that the trial court is required to
hold an evidentiary hearing before denying a petition to open a default
judgment. Our courts have consistently held that “[w]here an appellate brief
fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived.” Renna v. PPL Elec. Utilities, Inc., 207 A.3d 355, 367
(Pa.Super. 2019) (citation omitted). Accordingly, we could find Appellants’
claim waived on this basis alone.
In any event, we note that the Pennsylvania Rules of Civil Procedure
governing petition practice does not mandate that the trial court hold an
evidentiary hearing prior to ruling on a petition, but rather leaves it to the
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discretion of the individual trial court. See Pa.R.Civ.P. 206.5(d), explanatory
note (stating, “the court might prefer to hold a hearing to determine facts and
suggests the substitution for paragraphs (4) and (5) of the order to allow for
such a procedure. The court might also decide not to hold hearing or oral
argument and decide the matter on briefs alone.”). Therefore, we find
Appellants’ third issue to be both meritless and waived.
For all the foregoing reasons, we find no abuse of discretion on the part
of the trial court in denying Appellants’ petition to open the default judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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