Valley Truck Cntr, Inc. v. Margarita Express, LLC

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
VALLEY TRUCK CENTER, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MARGARITA EXPRESS, LLC AND :
ANGEL E. PEREZ-REYNOSO, AND :
AUSTIN ENVIRONMENTAL, :
C/O MAINE TRAILER REGISTRATION : No. 2013 MDA 2019
:
APPEAL OF: AUSTIN ENVIRONMENTAL :
Appeal from the Order Entered November 14, 2019,
in the Court of Common Pleas of Lackawanna County
Civil Division at No. 2018-CV-4494
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 15, 2020
Austin Environmental appeals from the November 14, 2019 order
granting appellee, Valley Truck Center, Inc.’s (“Valley Truck”), motion to
amend the amount of the December 11, 2018 default judgment entered
against appellant for unpaid towing and storage fees.1 For the following
reasons, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
On August 20, 2018, [Valley Truck] commenced this
action against defendants, Margarita Express, LLC
1We note that appellant’s notice of appeal also references the trial court’s
October 25, 2019 order denying appellant’s “Petition to Strike and/or Open
Default Judgment.”
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(“Margarita”), Angel E. Perez-Reynoso
(“Perez-Reynoso”), and [appellant] asserting claims
for breach of implied contract and unjust enrichment.
Valley Truck avers that Perez-Reynoso was the
operator of a tractor owned by Margarita and a trailer
owned by [appellant] that were involved in a single
vehicle accident on Interstate Route 81 on June 15,
2018. It has alleged that the trailer overturned,
causing its cargo to be strewn on the Interstate, and
requiring the Pennsylvania State Police to contact
Valley Truck to assist with the cleanup of the area of
the Interstate by removing the rubbish from the
Interstate, transporting the same in dumpsters to
Keystone Sanitary Landfill, remov[ing] the vehicles
(tractor and trailer) from the Interstate, and storing
the same at its storage facility, awaiting further
instruction from Margarita and [appellant].
Valley Truck claims that it contacted Margarita and
[appellant] on numerous occasions to inquire as to
what action should be taken with respect to their
tractor, trailer, and property that remain[ed] stored
at the facility of [Valley Truck] for an extended period
of time, and that it also provided invoices to Margarita
and [appellant] for the costs of cleanup, disposal, and
storage of the vehicles and rubbish in the amount of
$44,411.51. It submits that although demand has
been made, no payment in full was received.
Additionally, Valley Truck contends that storage costs
continue to accrue at the rate of $200.00 per day
($100 tractor/$100 trailer) from June 17, 2018, until
the property has been removed and/or this matter has
been resolved. In its prayers for relief, it demands
judgment in the amount of $56,411.51, as well as an
additional $200.00 per day for storage fees together
with reasonable attorney fees and any other relief that
the Court deems reasonable.
[Appellant] was served with the Complaint by Deputy
Sheriff Natalie George on August 24, 2018. Based
upon [appellant’s] failure to file a timely responsive
pleading, Valley Truck forwarded a 10[-]day notice of
its intent to enter a default judgment to [appellant]
on November 21, 2018. In the absence of any reply,
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Valley Truck filed a default judgment against
[appellant] in the amount of $82,013.56 on
December 11, 2018.
Although Margarita and Perez-Reynoso mounted a
defense by filing pleadings and participating in this
litigation, [appellant] declined to do so, and Valley
Truck ultimately filed an amended Writ of Execution
against [appellant] in the amount of $86,697.69 on
July 18, 2019. Almost two months later, and more
than nine months after the entry of the default
judgment against it, [appellant] filed a petition on
September 16, 2019, seeking to strike or open the
default judgment. Valley Truck opposed that petition,
and following the completion of oral argument on
October 22, 2019, Judge Thomas J. Munley entered
an Order on October 25, 2019, denying [appellant’s]
petition to strike or open the default judgment.
At least three business days prior to November 14,
2019, Valley Truck served [appellant] with its “Motion
to Amend Judgment Amount.” Valley Truck’s motion
memorializes the earlier filings in this litigation,
including the entry of the default judgment in the
amount of $82,013.56 and Judge Munley’s ruling
denying [appellant’s] petition to strike or open that
judgment. It asserts that additional storage charges
accrued subsequent to the date of that default
judgment and until the time that the tractor and trailer
were eventually removed from Valley Truck’s storage
facility. Based upon the daily storage charges set
forth in Valley Truck’s complaint and attached exhibit,
Valley Truck attested that the total amount due and
owing was $109,911.51, and sought to modify the
previously entered judgment against [appellant] to
reflect the final amount of $109,911.51 plus costs and
statutory interest.
Trial court opinion, 4/29/20 at 2-4 (citations, internal quotation marks, and
some brackets omitted).
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On November 14, 2019, the trial court entered an order granting
Valley Truck’s motion to amend the default judgment from $82,013.56 to
$109,911.51 to reflect the additional storage fees that had accrued as of that
date. On November 18, 2019, Valley Truck filed a praecipe for writ of
execution in the judgment amount of $109,911.51, plus statutory interest,
poundage, and fees, for the total sum of $116,938.84. Appellant filed a notice
of appeal on December 10, 2019. Thereafter, the trial court ordered appellant
to file a concise statement of errors complained of on appeal, in accordance
with Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed its
timely Rule 1925(b) statement on January 7, 2020, and the trial court filed its
Rule 1925(a) opinion on April 29, 2020.
On February 13, 2020, this court directed appellant to show cause,
within ten days, as to why its appeal from the November 14, 2019 order
amending the default judgment should be quashed as interlocutory, given that
claims against the other defendants remained pending. (See per curiam
order, 2/13/20.) On February 27, 2020, appellant filed an untimely response
to the rule to show cause order, arguing that the November 14, 2019 order
was immediately appealable as an order affecting a judgment. On March 18,
2020, the rule to show cause order was discharged, and the issue was referred
to this panel.
Appellant raises the following issues for our review:
1. Whether the trial court erred in denying
[appellant’s] petition to strike and/or open
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default judgment when proper service was not
shown of the complaint upon [appellant] when
[Valley Truck’s] own complaint avers a different
address than the address at which [appellant]
was allegedly served; and when [appellant]
provided undisputed evidence that the address
at which service was allegedly completed was
not the registered corporate office or principal
place of business of [appellant?]
2. Whether the trial court erred in granting [Valley
Truck’s] motion to reassess damages without a
hearing when the original amount of damages
was determined to be for a sum certain, based
upon [Valley Truck’s] pleadings and
calculations, at the time of entry of the default
judgment by the Prothonotary and when:
(a) [Valley Truck] submitted no documentation
or evidence to support its claim for an additional
damages award and for additional storage and
cleanup costs; and (b) at the time of entry of
judgment there was no request by [Valley
Truck] for trial or hearing to determine damages
as would be required under Pa.R.C.P. 1037, and
when the damages are not apparent on the face
of the complaint[?]
Appellant’s brief at 4 (extraneous capitalization omitted).
Prior to consideration of the merits of appellant’s claims, we must first
determine whether the appeal is properly before us. It is well established that
“[t]he appealability of an order directly implicates the jurisdiction of the court.”
Bailey v. RAS Auto Body, Inc., 85 A.3d 1064, 1067 (Pa.Super. 2014)
(citation and quotation marks omitted). Under Pennsylvania law,
an appeal may be taken from: (1) a final order or an
order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission (Pa.R.A.P. 312,
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1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order
(Pa.R.A.P. 313).
Commonwealth v. Tchirkow, 160 A.3d 798, 803 (Pa.Super. 2017) (internal
quotation marks and case citations and omitted). “A final order is one that
disposes of all the parties and all the claims . . . or is entered as a final order
pursuant to the trial court’s determination.” Veloric v. Doe, 123 A.3d 781,
784 (Pa.Super. 2015) (internal case citations and quotation marks omitted);
see also Pa.R.A.P. 341(b). Rule 341(c) governs the determination of a final
order and provides, in relevant part, as follows:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim,
or third-party claim, or when multiple parties are
involved, the trial court or other government unit may
enter a final order as to one or more but fewer than
all of the claims and parties only upon an express
determination that an immediate appeal would
facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of
such a determination and entry of a final order, any
order or other form of decision that adjudicates fewer
than all the claims and parties shall not constitute a
final order . . . .
Pa.R.A.P. 341(c).
Instantly, appellant has appealed from the trial court’s November 14,
2019 order amending the default judgment entered against it on
December 11, 2018. As noted, however, appellant’s notice of appeal also
references the trial court’s October 25, 2019 order denying its petition to strike
and/or open the default judgment.
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Preliminarily, we note that to the extent appellant purports to appeal
from the October 25, 2019 order denying appellant’s “Petition to Strike and/or
Open Default Judgment,” the appeal is untimely on its face. It is well settled
that a notice of appeal must “be filed within 30 days after the entry of the
order from which the appeal is taken,” Pa.R.A.P. 903, and this court “may not
enlarge the time for filing a notice of appeal.” Pa.R.A.P. 105(b). Here, the
trial court’s order denying the petition to strike or open was entered on
October 25, 2019, and thus, the period from which to timely appeal that order
expired on November 25, 2019. See Pa.R.A.P. 903. Appellant did not file its
notice of appeal in this matter until December 10, 2019, more than two weeks
past the deadline.
Appellant contends that its appeal should be deemed timely because the
trial court’s November 14, 2019 order amending the default judgment amount
was immediately appealable of right as an order affecting a judgment,
pursuant to Rule 311(a)(1). See Pa.R.A.P. 311(a)(1) (providing for appeal as
of right from an order refusing to open, vacate, or strike off a judgment);
see also response to rule to show cause, 2/27/20 at ¶ 3.
Appellant is correct that an order denying a petition to strike and/or
open a default judgment may constitute a final, appealable order. See, e.g.,
Keller v. Mey, 67 A.3d 1, 4 n.5 (Pa.Super 2013). Nonetheless, the record
reflects that appellant has failed to file an answer to Valley Truck’s motion to
amend the default judgment, nor did it raise any of the claims it now raises
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on appeal during oral argument on the motion. Accordingly, to the extent
appellant appeals from the November 14, 2019 order granting Valley Truck’s
motion to amend the amount of the December 11, 2018 default judgment, we
agree with the trial court that the claims appellant raises for the first time in
its Rule 1925(b) statement are waived. See Pa.R.A.P. 302(a) (stating,
“[i]ssues not raised in the trial court are waived and cannot be raised for the
first time on appeal”); see also trial court opinion, 4/29/20 at 6.
Based on the foregoing, we affirm the trial court’s November 14, 2019
order granting Valley Truck’s motion to amend the amount of the
December 11, 2018 default judgment entered against appellant.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2020
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