Agency Ins. Co. v. Bacon, R.

J-S33034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
AGENCY INSURANCE COMPANY : IN THE SUPERIOR COURT OF
A/S/O A BOB’S AUTO & TOWING, : PENNSYLVANIA
INC. :
:
:
v. :
:
:
RIAN E. BACON : No. 274 EDA 2022
:
Appellant :
Appeal from the Order Entered December 16, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 210302965
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED APRIL 18, 2023
Rian E. Bacon (“Bacon”) appeals from the order denying his petition to
open the default judgment entered in favor of Agency Insurance Company
a/s/o A Bob’s Auto & Towing, Inc. (“A Bob’s”) in this subrogation action. We
affirm.
The trial court set forth the relevant factual and procedural history as
follows:
This dispute initially stems from a car accident involving [A
Bob’s] and [Bacon]. On March 30, 2021, [A Bob’s] initiated this
action by filing a complaint against [Bacon]. On April 8, 2021, [A
Bob’s] filed an affidavit of service that stated “I served the
following documents on . . . Bacon . . .on . . . April 1, 2021 at 8:51
pm at 2341 W. Hagert Street, Philadelphia, PA 19132[,] by
personal service by handing the following documents to an
individua [sic] identified as Rian E. Bacon.” The affidavit also
[provided an “Additional Description,” which] indicated that
service was effectuated upon “. . . Bacon’s sister[,] Makela[,] on
Thursday evening 8:50am [sic] on April 1st, 2021.” [The affidavit
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further indicated that the affiant/server asked Makela if Bacon
lived at the residence and she said “yes.” Makela also stated that
she was Bacon’s sister, and that she was over the age of eighteen.
The affidavit described Makela as a “Hispanic or Latino Female,
est. age 18, glasses: Y, Black hair, 160 lbs[.] to 180 lbs[.], 5’3”
to 5’6.” The affidavit was signed by the affiant/server and was
notarized.] On April 23, 2021, a ten (10)[-]day notice of intention
to file praecipe to enter default judgment was mailed to [Bacon]
at 2341 W. Hagert Street. On May 4, 2021, after neither an
appearance nor an answer was filed by [Bacon], default judgment
was entered against [him] in the amount of $23,150. [The trial
court docket reflects that notice of the entry of default judgment
was given to Bacon on May 4, 2021, pursuant to Pa.R.Civ.P. 236
and 237.1. On July 13, 2021, a certification of motor vehicle
judgment against Bacon was entered on the trial court docket.]
On November 15, 2021, [Bacon], through counsel, filed a
petition to open default judgment. In the petition, [Bacon]
claimed the address at 2341 W. Hagert Street was his mother’s
residence and [he] did not give permission to anyone at this
address to accept documents on [his] behalf. [Bacon] further
maintained that his correct address was 5805 Germantown
Avenue, Philadelphia, PA.
On December 16, 2021, this court denied [Bacon’s] petition
to open default judgment. On December 22, 2021, [Bacon] filed
a motion for reconsideration, which this court denied on December
29, 2021. On January 3, 2022, [Bacon] filed a notice of appeal
from this court’s order denying his petition to open default
judgment. . . . [T]his court ordered [Bacon] to file a concise
statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b) within twenty-one (21) days. [Bacon complied
and the trial court thereafter filed an opinion pursuant to Rule
1925(a).]
Trial Court Opinion, 4/20/22, at 1-2 (footnotes and unnecessary capitalization
omitted, formatting altered).
Bacon raises the following issues for our review:
1. Did the trial court commit an error of law in denying [Bacon’s]
petition to open default judgment by holding that [Bacon] did
not act promptly and the petition was not timely filed?
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2. Did the trial court commit an error of law in denying [Bacon’s]
petition to open default judgment by holding that [Bacon] did
not present a meritorious defense?
Bacon’s Brief at 4 (unnecessary capitalization omitted).
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).
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. See Myers v. Wells Fargo Bank, Nat’l Ass’n, 986 A.2d 171,
176 (Pa. Super. 2009); see also Pa.R.Civ.P. 237.3(b)(2) (providing that “[i]f
the petition is filed within ten days after the entry of a default judgment on
the docket, the court shall open the judgment if one or more of the proposed
preliminary objections has merit or the proposed answer states a meritorious
defense”). “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); see also Myers, 986 A.2d at 176 (holding that the
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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).
In his first issue, Bacon contends that the trial court erred in concluding
that the petition to open was not promptly filed. Where, as herein, a petition
to open is filed more than ten days after the entry of default judgment, the
trial court must consider the length of time between the discovery of the entry
of the default judgment and the filing of the petition to open, and determine
whether the petitioner has demonstrated a legitimate excuse for the delay:
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
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.
Myers, 986 A.2d at 176. 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 id. (citing
Duckson v. Wee Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993) (holding
that a delay of one day is timely); and Alba v. Urology Assoc. of Kingston,
598 A.2d 57 (Pa. Super. 1991) (holding that fourteen days is timely); Fink v.
General Accident Ins. Co., 594 A.2d 345 (Pa. Super. 1991) (holding that a
period of five days is timely)).
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Bacon acknowledges that the petition to open was not filed until 195
days after the default judgment was entered on the docket.1 However, Bacon
asserts that he offered a reasonable explanation for his six-month delay in
filing his petition to open. According to Bacon, A Bob’s failed to properly serve
him with the complaint and the notice of intent to take a default judgment.
Bacon claims that he was not present at the Hagert Street address at the time
of the alleged service and did not give anyone at that address permission to
accept service of any document on his behalf. Bacon points to the initial
statement in the affidavit of service wherein it indicates that personal service
was made by handing the complaint to Bacon himself, and claims that there
is no description of Bacon, such as race, height, gender, or other characteristic
to identify him.2 Bacon additionally claims that he did not reside at 2341 W.
Hagert Street, which is his mother’s address, and claims that he resided at
____________________________________________
1 Bacon claims that the trial court’s determination that the petition to open
was not filed until 202 days after the default judgment was entered on the
docket is incorrect, and that the petition to open was filed 195 days after the
default judgment was entered on the docket. See Trial Court Opinion,
4/20/22, at 5. Our review discloses that the petition to open was filed 195
days after the default judgment was entered on the docket. Accordingly, we
have corrected the trial court’s slight miscalculation.
2 Bacon does not acknowledge the portion of the “Additional Description”
included in the affidavit of service which indicates that service was effectuated
upon Bacon by handing a copy of the complaint to Bacon’s sister, Makela, who
identified herself as Bacon’s sister, indicated that she was over the age of
eighteen, and confirmed that Bacon lived at the residence. See Affidavit of
Service, 4/7/21, at 1; see also Pa.R.Civ.P. 402 (providing that “[o]riginal
process may be served . . . by handing a copy . . . . at the residence of the
defendant to an adult member of the family with whom he resides”).
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5805 Germantown Avenue in Philadelphia, as is reflected on a Pennsylvania
Department of Transportation notice. Bacon points out that the copy of the
certificate of mailing attached to the affidavit of service shows only one side
of the certificate and reflects no signatures confirming receipt of the notice.
Bacon additionally claims that he mistakenly believed that Capital
Insurance Company was protecting his interests regarding the property
damage resulting from the motor vehicle accident until his insurance agent
advised him that he was insured by Progressive Casualty Insurance Company
at the time of the accident. Bacon maintains that he reported the accident to
Progressive Casualty Insurance Company on September 13, 2021. Bacon
indicates that his counsel entered his appearance in the matter on November
2, 2021, and thereafter filed a petition to open on November 15, 2021. On
this basis, Bacon argues that his petition to open was promptly filed.
The trial court considered Bacon’s first issue and determined that it
lacked merit. The court reasoned:
In the instant case, [Bacon] fails to meet the first element
required to open a default judgment because his petition to open
default judgment was not filed until [195] days after the default
judgment was entered. This court notes that there have been
numerous binding cases that have found similar delays to be
unreasonable. Although there is no bright line rule or specific time
period in ruling a delay unreasonable, the circumstances of this
case in tandem with controlling case law strongly indicate that
[Bacon’s 195-]day delay is unreasonable.
In American Express v. Burgis, [476 A2d 944 (Pa. Super.
1984),] a defendant attempted to argue that service by a deputy
sheriff was improper[;] however[,] the Superior Court found that
defendant’s two (2) month delay in filing a petition to open default
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judgment was unreasonable. Similarly, here, [Bacon] is also
making unfounded claims as to improper service, but has instead
waited a total of [195] (days) to file his initial pleading on this
court’s docket, well over two (2) month period which was rejected
by the court in Burgis. As such, in light of the established case
law and in consideration of [Bacon’s] circumstances, a [195] day
delay in this case cannot be considered reasonable or timely.
Trial Court Opinion, 4/20/22, at 5-6 (footnotes and unnecessary capitalization
omitted).3
We discern no abuse of discretion or legal error by the trial court in
reaching its determination that the petition to open the default judgment was
not promptly filed. The record reflects that notice of the entry of the default
judgment was given to Bacon on May 4, 2021, pursuant to Pa.R.Civ.P. 236
and 237.1, at the same residence where service of the complaint had been
____________________________________________
3 The trial court cited numerous decision in which a delay of time far less than
195 days was found to be “not prompt.” See Trial Court Opinion, 4/20/22, at
6 n10 (citing American Vending v. Brewington, 432 A.2d 1032 (Pa. Super.
1981) (holding that a delay of two and one-half months was unreasonable);
McCoy v. Public Acceptance Corp. et al., 305 A.2d 698 (Pa. 1973) (holding
that a seventeen-day delay was unreasonable); Hatgimisios v. Dave’s NE.
Mint, 380 A.2d 485 (Pa. Super. 1977) (holding that a thirty-seven-day delay
was unreasonable); Allegheny Hydro v. American Line Builders, 722 A.2d
189, 191 (Pa. Super. 1998) (holding that a delay of forty-one days was
unreasonable); Pappas v. Stefan, 304 A.2d 143, 146 (Pa. 1973) (holding
that a period of fifty-five days was not prompt); Quatrochi v. Gaiters, 380
A.2d 404 (Pa. Super. 1977) (holding that a period of sixty-three days was not
prompt); Castings Condominium v. Klein, 663 A.2d 220 (Pa. Super. 1995)
(finding that a delay of three months did not constitute a prompt filing), Rigid
Fire Sprinkler Service, Inc. v. Chaiken, 482 A.2d 249 (Pa. Super. 1984)
(finding that a delay of 108 days was unreasonable and citing numerous other
cases in which shorter periods of time than involved in this case were
considered untimely).
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made a few weeks earlier. See Affidavit of Service, 4/7/21, at 1 (wherein a
copy of the complaint was handed to Bacon’s adult sister, Makela, who
indicated that Bacon resided at 2341 W. Hagert Street, Philadelphia, PA
19132). Our review of the record discloses no evidence that Bacon lived at
5805 Germantown Avenue in Philadelphia, or at any other address, in April or
May of 2021.4
While Bacon attached to his motion for reconsideration a screenshot of
a photograph of the first page of a letter purportedly sent to him by the
Pennsylvania Department of Transportation, Bureau of Driver Licensing, on
July 28, 2021, the addressee, as well as the address that the letter was sent
to, are blocked out. The screenshot additionally depicts what appears to be
the far-left side of the same letter, without the addressee and address blocked
out, and indicating that the letter was sent to Bacon at 5805 Germantown
Avenue in Philadelphia. Even assuming that the letter provided some evidence
that Bacon resided at 5805 Germantown Avenue in Philadelphia on July 28,
2021, it did not establish that Bacon lived at that address four months earlier,
in April 2021, when the complaint was served, or on May 4, 2021, when notice
of the entry of default judgment was given pursuant to Pa.R.Civ.P. 236 and
237.1.
____________________________________________
4Notably, Bacon does not contend that he did not receive the complaint, the
praecipe to enter default judgment, or the notice of entry of default judgment.
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Moreover, the letter specifically advised Bacon that a judgment had
been entered against him in connection with the June 22, 2019 motor vehicle
accident in which he was involved, and that his driving privileges were
suspended until he satisfied the judgment. Thus, to the extent that Bacon
claims that this letter was sent to and received by him, he essentially concedes
that he was aware on or about July 28, 2021, that a judgment had been
entered against him as a result of the motor vehicle accident with A Bob’s, yet
did not file a petition to open that judgment until more than three months
later, on November 15, 2021.
As to Bacon’s claim that he “mistakenly believed that Capitol Insurance
Company was protecting his interests regarding the alleged property damage
resulting from the subject motor vehicle accident,” and that he did not receive
a denial from Capitol Insurance Company, the record belies these assertions.
Bacon’s Brief at 19. Bacon provided the trial court with a letter dated April
30, 2020, wherein Capitol Insurance Company acknowledged that Bacon had
filed a claim regarding the June 22, 2019 motor vehicle accident, but expressly
denied insurance coverage for the incident on the basis that no Capitol
Insurance Company policy was in effect at the time of that accident. See
Capitol Insurance Company Letter, 4/30/20, at 1. Thus, Bacon knew on or
about April 30, 2020, that Capitol Insurance Company would not be defending
him against any claims asserted by or on behalf of A Bob’s. Indeed, by the
time the complaint was filed against Bacon in April 2021, he had known for
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nearly a year that Capitol Insurance Company would not be protecting his
interests regarding the accident. Further, upon receiving the April 30, 2020
letter informing him that Capitol Insurance Company was not his insurer at
the time of the accident, Bacon took no action upon receiving this information,
and failed to notify Progressive Casualty Insurance Company of the accident
(or the entry of a default judgment against him regarding that accident) until
nearly seventeen months later, in September 2021.
Accordingly, for these reasons, we conclude that the trial court did not
abuse its discretion in determining that the petition to open the default
judgment, filed more than five months after the notice of the entry of default
judgment was provided to Bacon pursuant to Pa.R.Civ.P. 236 and 237.1, was
not promptly filed. Thus, Bacon’s first issue merits no relief.
Given our resolution of Bacon’s first issue, we deem his second issue to
be moot. See Watters, 163 A.3d at 1028 (holding that if a petition to open
a default judgment fails to fulfill any one prong of the three-part test, then
the petition must be denied); see also Myers, 986 A.2d at 176 (holding that
the trial court cannot open a default judgment when the defendant has failed
to establish all three of the required criteria).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2023
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