Donatelli, A. v. Haas, S.

J-A22020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANTHONY L. DONATELLI AND : IN THE SUPERIOR COURT OF
MICHELE DONATELLI, HUSBAND : PENNSYLVANIA
AND WIFE :
:
:
v. :
:
:
SIDNEY G. HAAS, JR. : No. 59 WDA 2022
:
Appellant :
Appeal from the Order Entered December 21, 2021
In the Court of Common Pleas of Butler County Civil Division at No(s):
21-10409,
21-20894
BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 22, 2022
Appellant, Sidney G. Haas, Jr., appeals from the December 21, 2021
Order entered in the Butler County Court of Common Pleas denying his petition
to open default judgment in this trespass action. After careful review, we
affirm.
The relevant facts and procedural history are as follows. On June 9,
2021, Appellees, Anthony L. Donatelli and Michele Donatelli, filed a Complaint
for Trespass alleging that Appellant, their neighbor, had been encroaching and
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* Retired Senior Judge assigned to the Superior Court.
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trespassing upon their property by storing heavy equipment on it.1 Appellees
attached to the complaint a survey report prepared by Graff Surveying, LLC
(“Graff”) verifying the property boundary line. Appellees sought to eject
Appellant from their property and to have a permanent injunction entered
against him.
On June 17, 2021, the Butler County Sheriff’s Department served
Appellant with the complaint by hand-delivery. The complaint included the
required Notice to Defend, informing Appellant that he must respond to the
complaint within 20 days after service or judgment may be entered against
him. Accordingly, Appellant had until July 7, 2021, to act in response to the
complaint. Appellant did not take any docketed action during this period to
respond to the complaint.
On July 8, 2021, Appellees’ counsel mailed to Appellant a Notice of
Praecipe to Enter Judgment by Default. Counsel also mailed a copy of the
notice to Attorney John P. Senich, an attorney allegedly engaged in
discussions with Appellant regarding possible representation in this case.
Attorney Senich did not, however, enter his appearance or file any documents
on Appellant’s behalf.
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1 Appellees had previously requested by letter dated May 10, 2021, that
Appellant remove the equipment and other items he was storing on Appellees’
property. Appellees noted in the letter that Appellant was present when their
surveyor, Graff Surveying, LLC, performed a survey to verify the location of
the property boundary line.
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On July 22, 2021, the Butler County prothonotary entered default
judgment against Appellant and sent Appellant a Notice of Entry of Default
Judgment. That same day, Appellees filed a Motion to Assess Damages and
for Equitable Relief in Enforcement of Judgment Against [Appellant].
On July 29, 2021, Appellant hand-delivered to the Butler County
prothonotary a letter dated July 23, 2021. In the letter, Appellant stated,
inter alia, that the trial court should dismiss all charges against him because
he never received a certified letter or written notice that a case had been filed
against him. The letter did not contain any proposed answer, new matter, or
preliminary objections to the complaint, or raise any meritorious defense to
the allegations asserted in the complaint.
Also on July 29, 2021, the trial court entered an order directing
Appellant to remove the heavy equipment and other items from Appellees’
property. The court scheduled a hearing on Appellees’ motion to assess
damages for November 5, 2021.
On September 23, 2021, more than two months after the entry of
default judgment, Appellant filed a Petition to Open Default Judgment. In the
petition to open, Appellant acknowledged that on June 17, 2021, he received
by personal service Appellees’ complaint with the attached notice to defend.
He asserted that, after receiving the complaint, he consulted Attorney Senich,
whom he mistakenly believed was representing him. He averred that, when
he received the July 8, 2021 notice of default, he continued to believe that
Attorney Senich was representing him. He explained that after finally realizing
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that Attorney Senich was not representing him, he sent the letter dated July
23, 2021, to the court addressing some of the allegations raised in the
complaint and in the motion to assess damages.
In support of his petition to open, Appellant claimed that his failure to
timely file an answer was excusable because he is an “older, pro se litigant
that did not understand the seriousness of what was happening” and that he
thought Attorney Senich was representing him. Petition, 9/23/21, at ¶ 19-
20. He also claimed that he had a meritorious defense, which he set forth in
an Answer and New matter, that he was not storing equipment on Appellees’
property, that the Graff survey was inaccurate, and that he possessed the land
in question through adverse possession.2 Appellant did not attach any
evidence supporting his claim that the Graff survey was inaccurate.
The next day, the court issued a rule to show cause directing Appellees
to file an answer to Appellant’s petition to open within 30 days, granting the
parties the opportunity to take depositions, and scheduling a hearing on the
petition.
On October 20, 2021, Appellees filed an answer to Appellant’s petition
to open raising disputed issues of material fact and asserting that Appellant’s
petition was untimely. Appellees also filed a reply to Appellant’s new matter,
including, as an exhibit, a letter from the prior owner of Appellees’ property,
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2 Appellant also raised a counterclaim for Intrusion Upon Seclusion, alleging
that Appellees used video cameras attached to their residence and business
to spy on Appellant.
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Gary L. Risch, Sr., acknowledging that he had permitted Appellant to “park
some of his vehicles on the rear side of the property,” denying that he had
given Appellant the property, and averring that Appellant was aware that Mr.
Risch had not given him the property.3
On October 29, 2021, Appellees deposed Appellant. Relevantly,
Appellant testified that he had previously been involved in “a dozen” lawsuits
and had been deposed before.4 He also testified that in some of those suits
he had represented himself and in others he had retained counsel. Appellant
explained that he was aware of the judgment entered against him but because
it was not a monetary judgment, he thought he “had to wait to see what
happened.”5 He further testified that he prepared and filed his own letter with
the prothonotary because Attorney Senich was not representing him.6
Appellant also testified that he had obtained a survey of his property in
the 1970s and that it differs from the Graff survey. He conceded that he
“technically can’t read” a survey and is not capable of comparing maps and
surveys because he is not a surveyor.7 Nevertheless, he concluded that
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3 See Letter from Gary L. Risch, undated.
4 N.T. Haas Deposition, 10/29/21, at 53-54.
5 Id. at 145.
6 Id. at 79-80, 84. See also id. at 89 (where Appellant testified that Attorney
Senich was not involved in this litigation because he “didn’t want to be
involved”).
7 See id. at 32, 114-116.
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because of the differences he observed between the surveys and his
comparison of the Graff survey to a Google map satellite image provided to
him by the Butler County tax office, the Graff survey was, inaccurate.
On November 17, 2021, the parties deposed Attorney Senich. Attorney
Senich testified that Appellant contacted him about the instant litigation in late
June or early July of 2021. He testified that Appellees’ counsel sent him a copy
of Appellees’ complaint and that same day he visited Appellant at home to
take pictures of existing property boundary markers and to gather more
information. At that time, Appellant provided him with a copy of the
complaint. Attorney Senich informed Appellant that he did not practice this
type of law but that he would take a look at the complaint. He also testified
that, at that time, he told Appellant that if the suit concerned assets owned
by Appellant’s son, whose estate Attorney Senich was representing, he could
be involved, but if not, “I can’t represent you here.”8 He testified that he did
not agree to represent Appellant at that point. He further testified that he
informed Appellees’ counsel that he did not represent Appellant. Attorney
Senich testified that shortly before he went on a one-week vacation that began
on July 17, 2021, he gave Appellant the names of other law firms to contact
to engage representation. He testified that on August 5, 2021, he confirmed
by letter to Appellant that he would not be representing him in this matter.
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8N.T. Senich Deposition, 11/17/21, at 13. See also id. at 17 (where Attorney
Senich testified that sometime just prior to July 17, 2021, he declined to
deliver a letter from Appellant to the court and reiterated to Appellant that “I
can’t represent you in this.”).
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Attorney Senich testified that he had ongoing conversations with Appellant
throughout the pendency of this matter and had asked Appellant to keep him
apprised of developments in this matter in case some of the heavy equipment
that Appellees alleged Appellant had located on their property belonged in
Appellant’s son’s estate.
On December 20, 2021, the court heard argument on Appellant’s
petition to open, following which it entered the order denying the petition.9
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal:
Whether the lower [c]ourt erred as a matter of law and/or abused
its discretion by denying Appellant’s Petition to Open Default
Judgment[?]
Appellant’s Brief at 4.
A.
“A petition to open a default judgment is an appeal to the equitable
powers of the court.” Smith v. Morrell Beer Distribs., Inc., 29 A.3d 23, 25
(Pa. Super. 2011) (citation omitted). The decision to deny a petition to open
a default judgment is within the discretion of the trial court and we will not
disturb the court’s decision absent an abuse of that discretion. Id.Generally, a trial court may open a default judgment if the movant has:
“(1) promptly filed a petition to open the default judgment, (2) provided a
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9 The lower court entered this order on the docket on December 21, 2021.
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reasonable excuse or explanation for failing to file a responsive pleading, and
(3) pleaded a meritorious defense to the allegations contained in the
complaint.” Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175-76 (Pa.
Super. 2009). “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 Nat’l Ass’n
for Pa. Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 (Pa. Super.
2017) (citations omitted). “[T]he 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.” Kelly v. Siuma, 34 A.3d 86, 91 n.6 (Pa.
Super. 2011).
B.
Appellant first asserts that he promptly filed his petition. Appellant’s
Brief at 11. In support of his claim, he argues that the trial court should have
calculated the delay in filing the petition not from the date judgment had been
entered—July 22, 2021—but instead from either the day Attorney Senich sent
him a letter officially notifying Appellant that Attorney Senich would not
represent him—August 5, 2021—or from some time in “late August of 2021”
when Appellant learned, allegedly for the first time, from current counsel, that
a judgment had been entered against him. Id. at 11-12.
With respect to the first prong pertaining to timeliness of the petition to
open, “[t]he law does not establish a specific time period within which a
petition to open a judgment must be filed to qualify as time[ly].” Myers, 986
A.2d at 176 (citation omitted). “Instead, the court must consider the length
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of time between discovery of the entry of the default judgment and the reason
for the delay.” Id. (citation omitted).
This court has explained as follows:
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. See Duckson
v. Wee Wheelers, Inc., [] 620 A.2d 1206[, 1209] (Pa. Super.
1993) ([holding] one day [after default is taken] is timely); Alba
v. Urology [Assocs.] of Kingston, [] 598 A.2d 57[, 58] ([Pa.
Super.] 1991) ([holding] fourteen days [after judgment was
entered] is timely); Fink v. [Gen.] Accident Ins. Co., [] 594
A.2d 345[, 346] ([Pa. Super.] 1991) ([holding] five days [after
default judgment was entered] is timely).
Id. (citation omitted). See also Allegheny Hydro No. 1 v. Am. Line
Builders, Inc., 722 A.2d 189, 193-94 (Pa. Super. 1998) (holding a 41-day
delay in filing a petition to open a default judgment after default judgment
has been entered was untimely; collecting and setting forth cases holding
delays in filing a petition to open a default judgment of 21 days and 37 days
rendered those petitions untimely).
In light of the above case law, the trial court did not abuse its discretion
in calculating the delay in filing the petition to open from the date the
prothonotary entered the default judgment against Appellant and in
determining that in waiting 63 days after entry of the default judgment to file
his petition to open, Appellant did not timely file it.10
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10 Moreover, even if the trial court had miscalculated the delay and we
accepted Appellant’s claim that the delay was only 49 days, Appellant’s claim
would fail as a petition to open filed 49-days after entry of the default
judgment is similarly not prompt.
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C.
Appellant next argues that his delay in filing the petition to open and his
failure to file an answer were excusable because: (1) he thought Attorney
Senich was representing him; (2) he “did his best” to find another attorney;
(3) he was homebound during the relevant period, which “made retaining
counsel quite difficult”; and (4) he was pro se and “clearly did not fully
understand the consequences of a default judgment.” Appellant’s Brief at 12-
13.
With respect to Appellant’s claims that his delay was excusable, the
court found that the evidence presented by Appellant, namely his deposition
testimony and that of Attorney Senich, was “either far too vague for [the
c]ourt to draw any reasonable inferences therefrom, or, when not vague, did
not support a legitimate justifiable cause for the delay in filing the [p]etition.”
Trial Ct. Op., 3/4/22, at 9. In particular, the trial court highlighted Appellant’s
testimony regarding the Notice of Praecipe to Enter Default Judgment. The
court emphasized that Appellant testified first that, when asked whether he
had received the notice in the mail or prior to his deposition, he testified that
he had not. Later, however, Appellant admitted that he might have seen it
but if he did, he “didn’t look at it.” Id. (citing N.T. Haas Deposition at 132,
140). Appellant also conceded that he was aware that a judgment had been
entered against him, but because it was not a monetary judgment he decided
to “wait to see what happened.” Id. (citing Haas Deposition at 145). The
court also noted that the evidence demonstrated that even after Appellant
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determined he needed to obtain alternate counsel, he failed to act with
urgency.
The trial court also found that “the imprecise testimony given by
[Appellant] and Attorney Senich” coupled with Appellant’s testimony
evidencing that he “did not view this lawsuit with any degree of gravity . . .
did not support [Appellant’s] burden of demonstrating a reasonable excuse for
his failure to timely respond to the [c]omplaint[.]” Id. at 12. In reaching this
conclusion, the court emphasized Appellant’s vague testimony regarding when
he received documents and when he provided those documents to Attorney
Senich and Appellant’s testimony regarding his experience and sophistication
as a litigant in prior cases. The court determined that Appellant’s assertion
that he did not understand the seriousness of this lawsuit was entirely devoid
of credibility.
Following our review of the record, we conclude that the trial court did
not abuse its discretion or err as a matter of law in finding that Appellant’s
delay in filing both the petition to open the default judgment and an answer
to the complaint was not excusable.
D.
Last, Appellant argues that he asserted meritorious defenses to the
claims against him, i.e., (1) that the Graff survey was inaccurate and (2)
adverse possession. Appellant’s Brief at 14. He argues that he was required
only to assert defenses, not to prove them and, therefore, the trial court erred
when it found that Appellant had not proved these defenses. Id. at 14-15.
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Keeping our standard of review in mind, this Court has previously
described the meritorious defense prong as follows:
The requirement of a meritorious defense is only that a defense
must be pleaded that if proved at trial would justify relief. The
defendant does not have to prove every element of its defense,
however, it must set forth the defense in precise, specific and
clear terms.
Penn-Delco Sch. Dist. v. Bell Atl.-Pa, Inc., 745 A.2d 14, 19 (Pa. Super.
1999) (citations omitted, emphasis added).
Here, the trial court explained that Appellant failed to set forth his
defenses with specificity sufficient to demonstrate that, if proved, the defenses
would justify relief. In particular, the court found that Appellant’s testimony
regarding his belief that the Graff survey was inaccurate “lacked specificity as
to any inaccuracy in the survey.” Trial Ct. Op. at 13. The court also noted
that Appellant neglected to provide the court with documents, maps, surveys,
or satellite images to support his claim. It determined that Appellant’s
concession that he lacks training and is “unable to interpret surveys or
subdivision plans or compare satellite imaging to same” undermined his claim
that the Graff survey was incorrect based on his own reading of the survey
and maps. Id. at 14.
Last, with respect to Appellant’s adverse possession defense, the trial
court found that Appellant could not satisfy the hostility element necessary to
prove a claim for adverse possession. Id. at 15 (noting that Appellant did not
deny Appellees’ assertion in paragraph 6 of the complaint that their
predecessors in interest permitted Appellant to locate equipment on their
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property). Moreover, the court observed that Appellant did not testify or
allege with specificity as to what area or portion of Appellees’ property he
adversely possessed.
Following our review of the record, we conclude that the trial court did
not abuse its discretion in determining that Appellant did not assert with
sufficient precision, specificity, and clarity any defenses to Appellees’
complaint in trespass. Appellant is, thus, not entitled to relief.
E.
In sum, the trial court did not abuse its discretion or err as a matter of
law in denying Appellant’s petition to open default judgment where the petition
was not promptly filed and Appellant did not set forth any reasonable excuses
for his delay or meritorious defenses to Appellees’ claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2022
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