Susquehanna Bank v. Cooper, L.

J-S60017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSQUEHANNA BANK, SUCCESSOR BY IN THE SUPERIOR COURT OF
MERGER COMMUNITY BANKS PENNSYLVANIA
Appellee
v.
LAURA E. COOPER A/K/A LAURA
ELIZABETH LONG A/K/A LARA
ELIZABETH COOPER A/K/A LAURA E.
LONG
Appellant No. 271 MDA 2014
Appeal from the Order entered January 10, 2014
In the Court of Common Pleas of Berks County
Civil Division at No: 12-2302
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 13, 2015
Laura Cooper appeals from an order denying her petition to strike or
open a judgment entered against her and in favor of Appellee, Susquehanna
Bank, s/b/m/t Community Banks (Bank). Upon review, we affirm.
On February 10, 2012, the Bank filed a civil action against Appellant,
alleging she defaulted on a promissory note that secured a mortgage on her
former home located at 65 Woodland Manor Drive, Mohnton, Berks County
(the Mohnton address). The Bank was unable to successfully serve the
complaint on Appellant at the Mohnton address, so it requested leave of
court to effect special service. The trial court granted the Bank’s motion for
service by mail to, and posting of, the Mohnton address. Later, the Bank
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also served Appellant at her business address, 505 Penn Street, Floor 14,
Reading, Berks County (the Reading address). Appellant, who is an active
Pennsylvania attorney, filed a pro se answer to the complaint. She did not
endorse the answer with her address and telephone number, nor did she
serve the answer on the Bank’s counsel. Instead, Appellant mailed a copy of
the answer directly to the Bank. Appellant later filed a “certification of
address” listing the Reading address as the address for service, but—like her
answer—did not serve it on counsel for the Bank.
On September 6, 2012, the Bank moved for summary judgment. Per
the certificate of service, the Bank served the motion on Appellant at the
Mohnton address only. On January 30, 2013, the trial court entered an
order granting the Bank’s motion for summary judgment for Appellant’s
failure to respond.1 On the same day, judgment in personam was entered
against Appellant.
On October 10, 2013, Appellant petitioned to open or strike the
judgment. The trial court held a hearing on the petition, at which Appellant
testified that she never received the Bank’s motion for summary judgment.
On January 10, 2014, the trial court denied Appellant’s petition. Appellant
moved for reconsideration, attaching “two important documents” to the
motion. Both documents were from a companion case in Berks County
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1
The trial court’s order is erroneously dated January 30, 2012.
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involving the same plaintiff, defendant, and plaintiff’s counsel. The first
document, an affidavit of non-military service, indicated that Appellant could
be served at the Reading address. The second document, a return of
service, indicated that the resident of Appellant’s former house at the
Mohnton address gave Appellant’s business address as the Reading address.
The trial court denied reconsideration on February 24, 2014. In the
meantime, Appellant filed a timely appeal.2
Appellant raises three arguments before this Court:
1. Did the [trial] court err in making the legal determination that
a defendant’s failure to notify plaintiff’s counsel of a servable
address in that docket number permits the plaintiff to
effectuate “good service” on defendant by mailing pleadings
to the defendant’s former residential address when plaintiff
knows that defendant no longer resides there?
2. Did the trial court err in denying the defendant/appellant’s
motion to open/strike the judgement [sic] given that there
was a clear [sic] and unequivocal evidence of record that the
sheriff made service on Laura Cooper at [the Reading
address] in the companion case (11-4921) and that the same
counsel filed a nonmilitary affidavit indicating that her address
was [the Reading address]?
3. Did [the trial court] err in applying a higher standard to a pro
se defendant because that pro se defendant is licensed to
practice law in the State of Pennsylvania?
Appellant’s Brief at 4.
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2
A party may appeal of right from an interlocutory order refusing to open or
strike a judgment. Pa.R.A.P. 311(a)(1).
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Initially, we note the judgment entered against Appellant is not a
default judgment. A litigant can obtain a default judgment if the opposing
party fails to respond to a pleading containing a notice to defend, see
Pa.R.C.P. Nos. 237.1(a), 1037(b), 3031, 3146, but here Appellant filed an
answer to the Bank’s complaint. Rather, it is a judgment entered in a
contested matter because Appellant did not respond to the Bank’s summary
judgment motion.3
Additionally, the parties have conflated the standards and scopes of
review applicable to striking and opening a judgment. Striking and opening
a judgment “are not interchangeable, and we often reaffirm the distinction
between them.” Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa. Super.
2004). A petition to strike a judgment operates as a demurrer to the record
and may be granted only for a fatal defect or irregularity appearing on the
face of the record. ANS Assocs., Inc. v. Gotham Ins. Co., 42 A.3d 1074,
1076 (Pa. Super. 2012). In determining whether a fatal defect exists, a
court may look at only the record as it existed at the time of entry of
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3
Rule 237.1(a)(1) defines “default judgment” as a judgment entered by
praecipe for (1) a defendant’s failure to file a responsive pleading to a
complaint in a civil action containing a notice to defend; (2) a defendant’s or
terre-tenant’s failure to plead in response to a writ of revival in a proceeding
to revive a judgment lien; or (3) a garnishee’s failure to answer
interrogatories in an action to enforce a money judgment.
In contrast, Rule 1035.3(d) provides that the court may enter judgment
against a party who fails to respond to a summary judgment motion.
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judgment. Id. This Court reviews the refusal to strike a judgment for an
error of law, since the trial court’s decision does not call for the exercise of
discretion. Graziani, 856 A.2d at 1223 (quotation omitted).
In contrast, a petition to open a judgment is an appeal to the court’s
equitable powers. Id. In considering a petition to open, the trial court may
consider matters outside of the record at the time of entry of judgment.
Aquilino v. Phila. Catholic Archdiocese, 884 A.2d 1269, 1283 (Pa. Super.
2005). A court’s authority to open judgments entered in contested matters
is more circumscribed than its ability to open judgments entered by default
or confession. Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa.
Super. 1986) (en banc). In this case, Appellant did not file an appeal,
because she claimed to be unaware of the granting of summary judgment.
Rather, she collaterally attacked the judgment by filing a petition to open or
strike. “Generally, judgments regularly entered in adverse proceedings
cannot be opened or vacated after they have become final, unless there has
been fraud or some other circumstance ‘so grave or compelling as to
constitute “extraordinary cause” justifying intervention by the court.’” Id.
(quoting Klugman v. Gimble Bros., Inc., 182 A.2d 223, 225 (Pa. Super.
1962)). “Extraordinary cause ‘is generally an oversight or action on the
part of the court or the judicial process which operates to deny the
losing party knowledge of the entry of final judgment so that the
commencement of the running of the appeal time is not known to the losing
party.’” Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222, 1225 n.4
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(Pa. Super. 2002) (quoting Luckenbaugh v. Shearer, 523 A.2d 399, 402
(Pa. Super. 1987) (en banc)) (emphasis added). We review a refusal to
open a judgment for an abuse of discretion. Graziani, 856 A.2d at 1223
(quotation omitted).
We note that service of the complaint at the Mohnton address is not at
issue. Appellant waived any defects in service of original process by filing an
answer instead of preliminary objections. “A party who fails to object to
service of process in preliminary objections waives that claim.” Silver v.
Thompson, 26 A.3d 514, 517 n.6 (Pa. Super. 2011); see also Pa.R.C.P.
No. 1032(a).
In her first argument, Appellant contends service of the summary
judgment motion only at the Mohnton address constitutes grounds to strike
or open the judgment. We hold that the trial court did not err in denying
Appellant’s petition, because Appellant failed to establish grounds to strike
or open the judgment.
Appellant has failed to show the existence of a fatal defect on the
record as it existed at the time of entry of judgment. The record shows that
the trial court granted the Bank’s petition for special service of original
process at the Mohnton address. The Bank served its motion for summary
judgment by mail to the Mohnton address. Thus, by court order, the Bank
was permitted to serve original process and any other legal papers on
Appellant at the Mohnton address, and it did. “Service by mail of legal
papers other than original process is complete upon mailing.” Pa.R.C.P.
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No. 440(b). Limited to the record, we must assume that Appellant received
the motion. That she actually did not receive it is outside of the record at
the time judgment was entered. Therefore, no grounds exist on which to
strike the judgment.
Additionally, the trial court did not abuse its discretion in refusing to
open the judgment. Summary judgment was entered based on Appellant’s
general, ineffective denials contained in her answer. See Bank of Am.,
N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014) (“General denials
constitute admissions where—like here—specific denials are required.”).
Here, even if Appellant established extraordinary cause, she cannot establish
a meritorious defense to the summary judgment motion because of her
general denials in her answer to the complaint. Cf. Myers v. Wells Fargo
Bank, N.A., 986 A.2d 171, 175-76 (Pa. Super. 2009). (noting that to open a
default judgment a party must (1) promptly file a petition to open, (2)
provide a reasonable excuse for not filing a responsive pleading, and (3) set
forth a meritorious defense). If Appellant could not meet the more liberal
test to open a default judgment, a fortiori, she cannot meet the more
stringent test of extraordinary cause to open a judgment entered in a
contested matter.
We likewise find no merit to Appellant’s second argument regarding
the documents attached to her motion for reconsideration. Items presented
for the first time in a motion for reconsideration are not properly preserved
for appeal. Rabatin v. Allied Glove Corp., 24 A.3d 388, 391 (Pa. Super.
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2011) (noting that “issues raised in motions for reconsideration are beyond
the jurisdiction of this Court and thus may not be considered by this Court
on appeal”); see also Kelly v. Siuma, 34 A.3d 86, 94 n.8 (Pa. Super.
2011) (ruling the trial court properly refused to consider new evidence raised
for the first time in a motion for reconsideration). Moreover, a motion to
reconsider is designed to request reassessment based on the law—not to
allow a party to proffer an untimely supplemental record. Paparelli v. GAF
Corp., 549 A.2d 597, 599 n.2 (Pa. Super. 1988). Here, Appellant proffered
for the first time the affidavit and sheriff’s return with her motion for
reconsideration. The items were not properly before the trial court.4
Therefore, we cannot consider any claim of error founded on those
documents.
Similarly, we find no merit to Appellant’s third argument that she was
improperly held to a higher standard than non-lawyer pro se litigants. The
same standards apply to counseled and unrepresented litigants. See
Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super. 2004). Even non-lawyer
pro se litigants must comply with procedural rules. Id. Moreover, the trial
court did not err in considering Appellant’s status as an attorney in denying
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4
Indeed, the trial court’s denial of reconsideration is a legal nullity. The
order was entered on February 24, 2014, i.e., after the time to appeal
expired. A trial court cannot grant reconsideration if it fails to file an order
expressly granting reconsideration within the time for filing an appeal. See
Pa.R.A.P. 1701(b)(3)(ii).
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her petition insofar as she sought to open the judgment. A petition to open
is addressed to the equitable powers of a trial court. Myers, 986 A.2d at
175. As an attorney, Appellant should have been aware of applicable
procedural rules, i.e., the requirements to endorse pleadings and serve them
on counsel who represents an opposing party. See Pa.R.C.P. Nos. 1025,
440(a)(1). Thus, Appellant is responsible for not receiving the Bank’s
motion for summary judgment, due to her failure to comply with procedural
rules that require she endorse all pleadings and legal papers with an address
where all such documents may be served.5
In sum, the trial court did not commit an error of law in refusing to
strike the judgment, and it did not commit an abuse of discretion in refusing
to open the judgment. Accordingly, we affirm the order denying Appellant’s
petition to open or strike.
Order affirmed.
Judge Ott joins the memorandum.
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5
Wink v. Magrowski, 10 Pa. D. & C.5th 410 (C.P. Berks 2009), aff’d, 4
A.3d 699 (Pa. Super.) (unpublished memorandum), vacated per curiam, 9
A.3d 1137 (Pa. 2010), cited for the proposition that the trial court erred in
finding fault with Appellant’s failure to comply with applicable procedural
rules, is irrelevant. In that case, our Supreme Court merely reaffirmed that
a timely-filed petition to open judgment meets per se the first two
requirements to open a judgment. Wink, 9 A.3d at 1137 (citing Pa.R.C.P.
No. 237(b)). Additionally, the Supreme Court’s order is not binding on this
Court. See Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2013)
(“[P]er curiam orders have no stare decisis effect.”).
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Judge Jenkins files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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