White, C. v. Acchioli, M.

J-A19039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COLLEEN WHITE AND MICHAEL : IN THE SUPERIOR COURT OF
WHITE (W/H) : PENNSYLVANIA
:
:
v. :
:
:
MARTY D'ACCHIOLI AND ALBERTO :
D'ACCHIOLI, d/b/a, a/k/a, : No. 58 EDA 2019
D’ACCHIOLI CONSTRUCTION, INC. :
:
Appellant
Appeal from the Order Entered November 17, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 130501691
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 22, 2019
Marty D’Acchioli and Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli
Construction, Inc., (collectively “the D’Acchiolis”) appeal from the November
17, 2018, order entered in the Court of Common Pleas of Philadelphia County,
which denied their petition to open and/or strike a default judgment entered
against them and in favor of Colleen White and her husband, Michael White
(collectively “the Whites”). After a careful review, we affirm.
The relevant facts and procedural history are as follows: On May 17,
2013, the Whites instituted the instant suit via a writ of summons, and they
engaged a process-serving company to serve the writ of summons. With
regard to Marty D’Acchioli, the return of service indicates service was
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* Former Justice specially assigned to the Superior Court.
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effectuated on May 22, 2013, at 1539 Rhawn Street in Philadelphia, by
handing the writ of summons to an “[a]dult family member with whom said
Defendant(s) reside. Name and relationship: Alberto D’Acchioli/Father.” With
regard to Alberto D’Acchioli d/b/a, a/k/a, D’Acchioli Construction, Inc., the
return of service indicates service was effectuated on May 22, 2013, at 1539
Rhawn Street in Philadelphia, by handing the writ of summons to Alberto
D’Acchioli personally.
Thereafter, on July 2, 2013, the Whites filed a complaint naming the
D’Acchiolis as defendants1 and providing them with notice to defend within
twenty days. Therein, the Whites averred they leased a home from Jason
Cooperstein and his wife, Daniella Maria Puccini-Cooperstein, who hired the
D’Acchiolis to perform paving, excavating, and surfacing work on the subject
premises. On May 19, 2011, Mrs. White attempted to wheel a trashcan across
the corner of the torn up driveway, and the trashcan’s wheels became stuck
in the mud. As Mrs. White tried to pull the trashcan out of the mud, she fell
backwards and twisted with her feet firmly stuck in the mud, resulting in her
landing on the ground with the trashcan on top of her. Mrs. White suffered
injuries as a result of the fall, and thus, she presented claims of negligence
against the D’Acchiolis, and Mr. White presented claims of loss of consortium.
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1 The Whites named additional defendants. The record contains a stipulation
that the Whites’ claims against all defendants, except for those against Marty
and Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli Construction, Inc., have been
settled or dismissed.
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The Whites again hired the process-serving company to serve the civil
complaint. With regard to Marty D’Acchioli, the return of service indicates
service was effectuated on July 15, 2013, at 1539 Rhawn Street in
Philadelphia, by handing the complaint to an “[a]dult family member with
whom said Defendant(s) resides. Name and relationship: Anthony
D’Acchioli/Brother.” With regard to Alberto D’Acchioli d/b/a, a/k/a, D’Acchioli
Construction, Inc., the return of service indicates service was effectuated on
July 15, 2013, at 1539 Rhawn Street in Philadelphia, by handing the complaint
to an “[a]gent or person in charge of Defendant(s) office or usual place of
business. Anthony D’Acchioli/Authorized Agent.”
The D’Acchiolis did not file an answer to the complaint, and the Whites
filed a ten-day notice of their intent to file a default judgment against the
D’Acchiolis. The Whites’ attorney filed an affidavit of service verifying that he
served the ten-day default notice by certified and regular mail upon the
D’Acchiolis. He attached to the affidavit of service the signed certified mail
forms, which indicated the ten-day notice was sent to Marty D’Acchioli, at
1539 Rhawn Street in Philadelphia, on August 19, 2013, via certified mail.
The ten-day notice was sent to Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli
Construction, Inc., at 1539 Rhawn Street in Philadelphia, on August 19, 2013,
via certified mail. Both return receipts for the certified mailings bear the
signature of “Marty D’Acchioli.”
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On January 30, 2014, the Whites filed a praecipe for the entry of a
default judgment against Marty D’Acchioli and Alberto D’Acchioli, d/b/a, a/k/a,
D’Acchioli Construction, Inc. The certified docket entries reveal that, on that
same date, judgment was entered against the D’Acchiolis by default, and the
Prothonotary sent the required notices pursuant to Pennsylvania Rules of Civil
Procedure 236 and 237.1. Moreover, the Whites’ attorney filed an affidavit of
service indicating he sent the praceipe to enter default judgment to Marty
D’Acchioli and Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli Construction, Inc.,
to 1539 Rhawn Street in Philadelphia via certified and regular mail.
Thereafter, following a non-jury trial on damages, on April 13, 2015, the trial
court entered judgment in favor of the Whites in the amount of $545,000.2
The certified docket entries reveal that, on that same date, the Prothonotary
gave notice of the assessed damages as required by Pennsylvania Rule of Civil
Procedure 236.
On September 14, 2018, the D’Acchiolis filed a petition to open and/or
strike the default judgment.3 Specifically, the D’Acchiolis argued the
judgment should be stricken as to Marty D’Acchioli on the basis he was never
properly served with the writ of summons or complaint. They further argued
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2The trial court awarded Mrs. White $450,000.00 in damages, and Mr. White
$95,000.00 for loss of consortium.
3We note the D’Acchiolis attached to the petition a proposed answer with new
matter as to the Whites’ complaint.
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the judgment should be stricken as to Alberto D’Acchioli, d/b/a, a/k/a,
D’Acchioli Construction, Inc., since his son, Marty D’Acchioli, as opposed to
Alberto D’Acchioli himself, signed the certified mail receipt for the ten-day
default judgment notice; Alberto D’Acchioli was not properly served with the
complaint; and Alberto D’Acchioli had no involvement with D’Acchioli
Construction, Inc.
Moreover, the D’Acchiolis averred the judgment should be opened since
the amount of damages was excessive; Alberto D’Acchioli had no involvement
with the driveway work, which was performed solely by his son, Marty
D’Acchioli; the D’Acchiolis have a meritorious defense; Marty D’Acchioli was
not negligent; and Mrs. White did not sustain an injury. Finally, the D’Acchiolis
averred the judgment should be opened since the reason they did not file “a
more immediate response is because each was not properly served the
underlying writ of summons, complaint[,] and notice of default. Also,
[Appellant] Alberto D’Acchioli was never served as an individual party but as
[a] party acting on behalf of a business.” The D’Acchiolis’ Petition to Open
and/or Strike the Default Judgment, filed 9/14/18.
On October 19, 2018, the Whites filed an answer to the D’Acchiolis’
petition to open and/or strike the default judgment, and by order entered on
November 17, 2018, the trial court denied the D’Acchiolis’ petition to open
and/or strike the default judgment. On November 27, 2018, the D’Acchiolis
filed a motion for reconsideration, to which the Whites filed an answer, and
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on December 10, 2018, the trial court denied the D’Acchiolis’ motion for
reconsideration. On December 14, 2018, the D’Acchiolis filed a timely notice
of appeal. The trial court directed the D’Acchiolis to file a Pa.R.A.P. 1925(b)
statement, the D’Acchiolis timely complied, and the trial court filed a
responsive opinion on April 1, 2019.
On appeal, the D’Acchiolis aver the trial court erred in denying their
petition to open and/or strike the default judgment.4 We begin our analysis
by observing that when one is challenging a judgment, he or she may file a
petition to open the judgment, strike the judgment, or both. “A petition to
open a default judgment and a petition to strike a default judgment seek
distinct remedies and are generally not interchangeable.” Stauffer v.
Hevener, 881 A.2d 868, 870 (Pa.Super. 2005). “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
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4 We note the D’Acchiolis list five separate issues in their “Statement of
Questions Involved”; however, they have presented three argument sections
in which they intermingle the issues presented. Specifically, in their first
argument section, they set forth the legal standards pertaining to this Court’s
review of the trial court’s denial of a petition to open and/or strike a default
judgment; in their second argument section, they set forth their analysis as
to the reasons the trial court allegedly erred in failing to strike the default
judgment; and in their third argument section, they set forth their analysis as
to the reasons the trial court allegedly erred in failing to open the default
judgment. We shall, likewise, address the D’Acchiolis’ issues collectively
where appropriate.
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the record.” U.S. Bank Nat'l Ass'n for Pennsylvania Hous. Fin. Agency
v. Watters, 163 A.3d 1019, 1027-28 (Pa.Super. 2017) (internal citations and
quotation marks omitted). Here, the D’Acchiolis filed both a petition to open
and a petition to strike. We first consider the D’Acchiolis’ arguments regarding
their petition to strike the default judgment.
An appeal from the denial of “[a] petition to strike a default judgment
presents us with a question of law; consequently, our standard of review is de
novo and our scope of review is plenary.” Id. at 1028 n.9.
A petition to strike a judgment is a common law proceeding
which operates as a demurrer to the record. A petition to strike
the judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record....An order of the court striking
a judgment annuls the original judgment and the parties are left
as if no judgment had been entered. When deciding if there are
fatal defects on the face of the record for the purposes of a petition
to strike a judgment, a court may only look at what was in the
record when the judgment was entered.
Cintas Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915,
917 (1997). “[A] petition to strike is not a chance to review the merits of the
allegations of a complaint. Rather, a petition to strike is aimed at defects that
affect the validity of the judgment and that entitle the petitioner, as a matter
of law, to relief.” Oswald v. WB Public Square Associates, LLC, 80 A.3d
790, 794 (Pa.Super. 2013) (citation omitted). “The standard for ‘defects’ asks
whether the procedures mandated by law for the taking of default judgments
have been followed.” Continental Bank v. Rapp, 485 A.2d 480, 483
(Pa.Super. 1984) (citation omitted). See Liquid Carbonic Corp. v. Cooper
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& Reese, Inc., 416 A.2d 549, 550 (Pa.Super. 1979) (“If the record is self-
sustaining, the judgment cannot be stricken.”) (quotation and quotation
marks omitted)). A fatal defect on the face of the record denies the
prothonotary the authority to enter judgment. Erie Ins. Co. v. Bullard, 839
A.2d 383, 388 (Pa.Super. 2003). When a prothonotary enters judgment
without authority, that judgment is void ab initio. See id.
The D’Acchiolis claim the following fatal defects appear on the face of
the record and, thus, the trial court should have stricken the default judgment:
(1) Alberto D’Acchioli was not served with the ten-day notice of intent to file
a default judgment as is required by Pa.R.Civ.P. 237.1; and (3) Marty
D’Acchioli, although served with the ten-day notice of intent to file a default
judgment, was not served with original process.5
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5 In their brief, the D’Acchiolis additionally aver the default judgment ought to
be stricken because Alberto D’Acchioli was not served with the Whites’
complaint. However, this issue is waived as it was not presented in the
D’Acchiolis’ court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Further, the D’Acchiolis aver in their brief that the default judgment ought to
be stricken since Alberto D’Acchioli was neither doing business as nor was
known as “D’Acchioli Construction, Inc.” However, in their Pa.R.A.P. 1925(b)
statement, while the D’Acchiolis averred they established a “prima facie case
to open the judgment by demonstrating that that [sic] [Alberto] had no
involvement whatsoever with the transaction underling [sic] the instant case
and he had nothing to do with D’Acchioli Construction, Inc[.] and Plaintiffs’
alleged injuries[,]” the D’Acchiolis’ did not allege this was a reason to strike
the default judgment. See The D’Acchiolis’ Pa.R.A.P. 1925(b) Statement, filed
1/7/19, at 2. Thus, this issue is waived under Pa.R.A.P. 1925(b). See
Pa.R.A.P. 1925(b)(4)(vii); Scientific Games Int’l, Inc. v. Com., 620 Pa.
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With regard to the service of the ten-day notice upon Alberto D’Acchioli,
d/b/a, a/k/a, D’Acchioli Construction, Inc., we note our rules of civil procedure
indicate that a party seeking a default judgment must provide a notice of
intent to the defaulting party ten days prior to filing the praecipe for entry of
the judgment. Specifically, Pa.R.Civ.P. 237.1 states, in relevant part:
(2) No judgment of…default for failure to plead shall be entered
by the prothonotary unless the praecipe for entry includes a
certification that a written notice of intention to file the praecipe
was mailed or delivered
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(ii) in the case of a judgment by default, after the
failure to plead to a complaint and at least ten days
prior to the date of the filing of the praecipe to the
party against whom judgment is to be entered and to
the party’s attorney of record, if any.
Pa.R.Civ.P. 237.1.
The purpose of this rule is to ensure that default judgments are not
entered without a defendant’s prior knowledge, and to provide the defaulting
party with an opportunity to cure the defect prior to the entry of default
judgment. Green Acres Rehabilitation and Nursing Center v. Sullivan,
113 A.3d 1261, 1271-72 (Pa.Super. 2015). “If service [is] improper, the court
[does] not have jurisdiction over the persons of the defendants, and its
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175, 66 A.3d 740 (2013) (holding issues pertaining to personal jurisdiction
may be waived in the course of litigation); Stauffer, supra (holding a petition
to open and a petition to strike are distinct remedies and not subsumed within
each other).
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judgment should [be] stricken as void.” Continental Bank, 485 A.2d at 483
(citation omitted).
The Comment to Rule 237.1 indicates that the ten-day notice must be
in writing. Furthermore, the Comment provides:
The ten-day notice may be mailed or delivered. Registered
or certified mail is not required. The ten-day grace period for
compliance runs from the date of delivery, if the notice is
delivered. If the notice is mailed, the ten-day period runs from
the date of mailing and not from the date of receipt. If proof of
the date of mailing is important, it may be obtained from the post
office by requesting Post Office Form 3817, Certificate of Mailing,
which will show the date, the name of the sender, and the
addressee.
Pa.R.Civ.P. 237.1, Comment.
Here, our review of the certified record reveals that the ten-day notice
was sent to Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli Construction, Inc., at
1539 Rhawn Street in Philadelphia, on August 19, 2013, via certified mail, as
well as regular mail. The D’Acchiolis contend this constituted improper service
since Marty D’Acchioli signed for Alberto D’Acchioli’s certified mailing. See
D’Acchiolis’ Brief at 10. However, Pa.R.Civ.P. 237.1 “requires only that the
notice be mailed or delivered to the party against whom judgment is to be
entered. The explanatory comment expressly states that simply mailing the
notice constitutes compliance with the rule.” Central Penn National Bank
v. Williams, 523 A.2d 1166, 1168 (Pa.Super. 1987). Moreover, there is no
requirement that the ten-day notice be served via certified mail, as opposed
to regular mail. See id.; Pa.R.Civ.P. 237.1, Comment. Thus, since the ten-
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day notice was mailed via regular and certified mail to the address listed on
the complaint for Alberto D’Acchioli, d/b/a, a/k/a D’Acchioli Construction,
Inc.,6 the fact Marty D’Acchioli signed for the certified mailing does not
constitute a fatal defect on the record. See Womer v. Hilliker, 589 Pa. 256,
908 A.2d 269, 276 (2006) (holding that substantial compliance of Pa.R.Civ.P.
237.1 is sufficient and the court may “overlook any procedural defect that
does not prejudice a party’s rights.”)
With regard to the service of original process upon Marty D’Acchioli,7 the
failure to adhere to the Pennsylvania Rules of Civil Procedure can be a facially
fatal defect. Cintas Corp., supra.
Service of process is a mechanism by which a court obtains
jurisdiction of a defendant, and therefore, the rules concerning
service of process must be strictly followed. Without valid service,
a court lacks personal jurisdiction of a defendant and is powerless
to enter judgment against [the defendant]. Thus, improper
service is not merely a procedural defect that can be ignored when
a defendant subsequently learns of the action....However, the
absence of or a defect in a return of service does not necessarily
divest a court of jurisdiction of a defendant who was properly
served. [T]he fact of service is the important thing in determining
jurisdiction and…proof of service may be defective or even lacking,
but if the fact of service is established jurisdiction cannot be
questioned.
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6 The D’Acchiolis admitted in their petition to open and/or strike the default
judgment that Alberto D’Acchioli lived at 1539 Rhawn Street in Philadelphia.
See The D’Acchiolis’ Petition to Open and/or Strike the Default Judgment, filed
9/14/18, at ¶ 7 n.1., ¶ 12.
7 Marty D’Acchioli does not dispute the ten-day notice of intent to enter default
judgment was properly served upon him at 1539 Rhawn Street in Philadelphia.
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Cintas Corp., supra, 700 A.2d at 917-18 (citations and quotation marks
omitted). Pennsylvania Rule of Civil Procedure 402 discusses the requirements
for service of original process:
Rule 402. Manner of Service. Acceptance of Service.
(a) Original process may be served
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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)(2)(i) (emphasis in original).
Here, the return of service for the writ of summons with regard to Marty
D’Acchioli indicates service was effectuated at 1539 Rhawn Street in
Philadelphia by handing the writ of summons to an “[a]dult family member
with whom Defendant(s) reside. Name and relationship: Alberto
D’Acchioli/Father.” Further, the return of service for the complaint with regard
to Marty D’Acchioli indicates service was effectuated at 1539 Rhawn Street in
Philadelphia by handing the complaint to an “[a]dult family member with
whom said Defendant(s) reside. Name and relationship: Anthony
D’Acchioli/Brother.” Accordingly, from the face of the record, service of
original process was effectuated upon Marty D’Acchioli as required by
Pa.R.Civ.P. 402(a)(2)(i). Therefore, the trial court properly denied the petition
to strike on this basis. See Liquid Carbonic Corp., 416 A.2d at 550 (“If the
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record is self-sustaining, the judgment cannot be stricken.”) (quotation and
quotation marks omitted)).
The D’Acchiolis next claim the trial court abused its discretion in denying
their petition to open the default judgment.
Generally speaking, a default judgment may be opened 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. Seeger v. First Union National Bank, 836 A.2d 163
(Pa.Super. 2003). Moreover, we note the trial court cannot open
a default judgment based on the “equities” of the case when the
defendant has failed to establish all three of the required criteria.
Seeger, supra.
Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175-76 (Pa.Super. 2009)
(citation omitted).
In the case sub judice, the trial court concluded the D’Acchiolis did not
demonstrate that they met the first prong, i.e., they promptly filed a petition
to open the default judgment. In this regard, the trial court noted the default
judgment was entered on January 30, 2014, but the D’Acchiolis did not file
their petition to open until September 14, 2018, which was “four years and
seven months after the default judgment was docketed.” Trial Court Opinion,
filed 4/1/19, at 6.
With regard to the first prong, whether the petition to open was timely
filed, we note:
The timeliness of a petition to open a judgment is measured
from the date that notice of the entry of the default judgment is
received. The law does not establish a specific time period within
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which a petition to open a judgment must be filed to qualify as
timeliness. Instead, the court must consider the length of time
between discovery of the entry of the default judgment and the
reason for delay.
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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.
Myers, 986 A.2d at 176 (citations omitted).
In the case sub judice, the D’Acchiolis have presented no argument on
appeal that they did not receive notice of the default judgment8 and they have
made no effort to offer a reasonable explanation for the delay in filing the
petition to open.9 Accordingly, the trial court properly denied the petition to
open. See U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency, supra
(holding that if the petition to open fails to satisfy any prong of the test, then
the petition will be denied).
For all of the foregoing reasons, we affirm.
Order affirmed.
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8 We note the record reveals that, on January 30, 2014, default judgment was
entered against the D’Acchiolis and, on that same date, the Prothonotary sent
the required notices pursuant to Pennsylvania Rules of Civil Procedure 236
and 237.1. Moreover, the Whites’ attorney filed an affidavit of service
indicating he sent the praceipe to enter default judgment to Marty D’Acchioli
and Alberto D’Acchioli, d/b/a, a/k/a, D’Acchioli Construction, Inc., at 1539
Rhawn Street in Philadephia via certified and regular mail.
9 The D’Acchiolis focused their appellate argument on whether they provided
a reasonable excuse for failing to file a responsive pleading and whether they
have a meritorious defense. See D’Acchiolis’ Brief at 11-12.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/19
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