J-A19021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ABIGAIL ROSARIO                                   IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

NORTHWOOD MANOR, LLC., PHILLY
MANAGEMENT GROUP, LLC.
AND CHUCK W. CHIU

APPEAL OF: CHUCK W. CHIU

                                                      No. 2888 EDA 2015


                  Appeal from the Order Dated August 14, 2015
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): July Term 2007, No. 00032


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                           FILED NOVEMBER 17, 2016

        Chuck W. Chiu appeals from the order entered August 14, 2015, in the

Philadelphia County Court of Common Pleas, denying his petition to strike or

open a $9,000,000.00 default judgment entered against him, and in favor of

Abigail Rosario. On appeal, Chiu argues the trial court erred or abused its

discretion in refusing to open or strike the judgment. For the reasons below,

we affirm.

        The facts and procedural history underlying this appeal are as follows.

On July 2, 2007, Rosario initiated this negligence action by writ of summons

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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naming Chiu, Northwood Manor, LLC (“Northwood Manor”), and Philly

Management       Group,     LLC    (“PMG”),    as   defendants   (collectively,   “the

defendants”). She served Chiu both at his home address on Brighton Street

in Philadelphia, and at 7628 Castor Avenue in Philadelphia, a property that

he owned and leased, in part, to PMG. Thereafter, on July 18, 2007, Rosario

filed a complaint, in which she alleged the “defendants owned, operated,

leased, managed, controlled and/or had dominion over the premises known

as Northwood Manor and Northwood Manor Apartment ‘1 F’ both located at

1320 Foulkrod Street, Philadelphia, Pennsylvania 19124.”1                 Complaint,

7/18/2007, at ¶ 5. She further averred that on March 11, 2007, while living

in Apartment 1F, she fell due to an “unreasonably dangerous condition” in

the flooring and carpeting, and suffered serious and permanent injuries to

her face, head and spinal cord. See id. at ¶ 6. The record reveals Rosario

mailed the initial complaint to Chiu’s Brighton Street home address.

However, when she reissued the complaint on January 17, 2008, she sent

Chiu’s copy by certified mail to the Castor Avenue address. From that date

forward, Rosario served Chiu with all relevant documents at the Castor

Avenue address.




____________________________________________


1
  This is the only averment in Rosario’s complaint that links Chiu to the
Foulkrod Street apartment.




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        When none of the defendants responded to the complaint, on February

21, 2008, Rosario sent all three defendants notice of her intent to enter a

default judgment. See Pa.R.C.P. 237.1. Again, Rosario sent Chiu’s notice to

the Castor Avenue address.           On March 24, 2008, the trial court entered

default judgment against all three defendants. Thereafter, Roasario filed a

motion to assess damages, and, following a hearing, the court entered an

order in December of 2008 assessing damages against all three defendants,

jointly and severally, in the amount of $9,000,000.00.2

        Unbeknowst to the trial court, a bankruptcy stay had been entered

against Northwood Manor.             After that stay was lifted, the trial court

conducted a second assessment hearing, and, on December 16, 2009,

entered an order, once again, assessing damages against the defendants in

the amount of $9,000,000.00.3

        On October 14, 2012, Rosario filed a praecipe for a writ of revival of

the judgment. Thereafter, on October 21, 2014, she served Chiu with the

writ of revival only at his home address on Brighton Street on October 21,

2014.     See Affidavit of Service, filed 11/3/2014.     More than five months

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2
  Rosario was rendered a paraplegic as a result of the injuries she sustained
in the fall. See Rosario’s Motion to Assess Damages in Accord with Request
for Admissions, 4/1/2008, at ¶ 13.
3
  Although there is no transcript of either assessment hearing in the certified
record, from what we can gather, none of the defendants participated in
either hearing.



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later, on March 31, 2015, Chiu filed a petition to strike or open the default

judgment. Following a hearing on August 14, 2015, the trial court denied

Chiu’s petition. On September 11, 2015, Chiu filed, simultaneously, both a

motion for reconsideration and a notice of appeal.4         The trial court denied

the motion for reconsideration on September 15, 2015.5

       On appeal, Chiu first argues the trial court erred in denying his motion

to strike the nine million dollar default judgment. Specifically, he contends

the record “reflects a fatal error” because he was not properly served with

the ten-day default notice as required by Pennsylvania Rule of Civil

Procedure 237.1(a)(2)(ii).        Chiu’s Brief at 12.   Chiu asserts that because

Rosario mailed the default notice to the Castor Avenue address, which was

neither his residence nor place of business, her service of the notice was



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4
 The record reflects that the order denying Chiu’s petition was mailed to the
parties on August 18, 2015. See Order, 8/14/2015. Therefore, Chiu had
until September 17, 2015, to file a timely notice of appeal. See Pa.R.A.P.
903(a).
5
  When the court failed to expressly grant Chiu’s motion for reconsideration
within the relevant 30-day period, Chiu’s previously filed notice of appeal
took effect. Pa.R.A.P. 1701(b)(3). See also Valley Forge Ctr. Associates
v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa. Super. 1997).

      On September 16, 2015, the trial court ordered Chiu to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Chiu complied with the court’s directive, and filed a concise statement on
October 6, 2015.




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ineffective pursuant to Pennsylvania Rule of Civil Procedure 440(a)(2)(i).

Id.

      Chiu’s appeal implicates the Pennsylvania Rules of Civil Procedure. As

such, we are presented with a question of law so that “our standard of

review is de novo and our scope of review is plenary.”        Osward v. WB

Public Square Associates, LLC, 80 A.3d 790, 793 (Pa. Super. 2013). See

also Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261,

1267 (Pa. Super. 2015).

      Preliminarily, “[a] petition to strike a default judgment and a petition

to open a default judgment request distinct remedies and generally are not

interchangeable.” Erie Ins. Co. v. Bullard, 839 A.2d 383, 386 (Pa. Super.

2003). In considering the denial of a request to strike a judgment, we are

guided by the following:

             “A petition to strike a judgment operates as a demurrer to
      the record, and must be granted whenever some fatal defect
      appears on the face of the record.” First Union Nat. Bank v.
      Portside Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa.
      Super. 2003) (quoting PNC Bank v. Bolus, 440 Pa. Super. 372,
      655 A.2d 997, 999 (1995)). “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 Servs., Inc., 549 Pa. 84, 700 A.2d 915, 917 (1997)
      (citing Linett v. Linett, 434 Pa. 441, 254 A.2d 7, 10 (1969)).
      “Importantly, 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.”
      City of Philadelphia v. David J. Lane Advertising, 33 A.3d
      674, 677 (Pa. Cmwlth. 2011) (citing First Union Nat'l Bank,
      827 A.2d at 1227). Importantly, “[a] petition to strike does not

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        involve the discretion of the [trial] court.” Cintas Corp., 700
        A.2d at 919 (citing Dubrey v. Izaguirre, 454 Pa. Super. 504,
        685 A.2d 1391, 1393 (1996)).

Oswald, supra, 80 A.3d at 793–794. Moreover, we emphasize: “Matters

outside of the record will not be considered, and if the record is self-

sustaining, the judgment will not be stricken.”      Aquilino v. Philadelphia

Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa. Super. 2005) (citation

omitted).

        Chiu’s argument focuses on the interplay between Pennsylvania Rules

of Civil Procedure 237.1 and 440. Rule 237.1 requires a plaintiff to provide a

defendant with at least 10 days prior notice of her intent to enter a default

judgment. The Rule states:

        (2) No judgment … by 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

                                         ****

           (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.C.P. No. 237.1(a)(2)(ii) (emphasis supplied). The notice requirement

may not be waived,6 and “[a] record that reflects a failure to comply with

Rule 237.1 is facially defective and cannot support a default judgment.”

Erie Ins. Co., supra, 839 A.2d at 387.
____________________________________________


6
    Pa.R.C.P. 237.1(a)(4).



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       Rule 440 sets forth the requirements for the service of legal papers

other than original process.         Where, as here, there was no attorney of

record, the Rule provides:

       [S]ervice shall be made by handing a copy to the party or by
       mailing a copy to or leaving a copy for the party at the address
       endorsed on an appearance or prior pleading or the residence
       or place of business of the party, or by transmitting a copy
       by facsimile as provided by subdivision (d).

Pa.R.C.P. 440(a)(2)(i) (emphasis supplied).7

       As noted above, Chiu maintains that “the Default Notice was not sent

to [his] residence or place of business but rather allegedly to his tenants at

his Castor Avenue Property where he had no agents, employees or

managers under his control.” Chiu’s Brief at 11. Therefore, he argues the

record “reflects a fatal error” and the trial court erred in failing to strike the

default judgment. Id. at 12.

       The trial court, however, concluded Chiu “failed to demonstrate that a

fatal defect existed at the time the judgment was entered.”           Trial Court

Opinion, 1/5/2016, at 3.          Rather, the court found Rosario “substantially

complied” with the requirements of Rule 237.1, by mailing the 10-day notice

to “an address of record” for Chiu.8 Id. Upon our review of the record, we

agree.
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7
  See also Pa.R.C.P. 440 (a)(2)(ii) (explaining that “[i]f such service cannot
be made [under subsection (i),] service shall be made by leaving a copy at
or mailing a copy to the last known address of the party to be served.”).
8
  We note the trial court did not specifically address Rule 440 in its opinion.



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      When Rosario filed the praecipe to enter a default judgment against

Chiu, her attorney properly attached to the document a copy of the 10-day

notice required by Rule 237.1, and certified that the notice was “mailed to

[Chiu] at his last known address.”       Praecipe for Entry of Judgment of

Default, 3/24/2008. The attached 10-day notice is addressed to Chiu at the

Castor Avenue property. See id. Further, Rosario’s counsel also attached

an Affidavit of Non-Military Service to the praecipe, in which counsel’s

averred the following:

      Defendant, Chuck Chiu, is an adult, that his place of residence,
      upon reasonable investigation, is [] Brighton Street …, and that
      he is in the business of real estate, with his place of business
      located at 7628 Castor Avenue, Philadelphia, PA 19152,
      and that he not in the military service of the Unites States or its
      allies …

Affidavit of Non-Military Service, 3/24/2008 (emphasis supplied). Moreover,

the record also contains two affidavits of service for the writ of summons,

which establish Chiu was served with a copy of the writ both at his residence

on Brighton Street, and at the Castor Avenue property.       See Affidavits of

Service, filed 7/18/2007.    There was no indication in the certified record

that service to Chiu at the Castor Avenue property was improper.            See

Pa.R.A.P. 440(a)(2)(i) (service may be mailed to “the residence or place of

business of the party”). Accordingly, considering only the facts of record, we

agree with the trial court’s determination that no fatal defect or irregularity

was apparent on the face of the record at the time the default judgment was

entered. See Trial Court Opinion, 1/5/2016, at 3.


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       In his second issue, Chiu argues the court abused its discretion in

denying his petition to open the default judgment. Chiu contends the trial

court erred in considering his delay in filing the petition to open after the

judgment had been revived, rather than focusing on the fact that Rosario

“did not provide one shred of evidence that [Chiu] had actually received the

Default Notice.” Chiu’s Brief at 13. Moreover, he emphasizes “the equities

of [the] circumstances demanded that the [c]ourt examine the fact that

[Chiu] had no nexus or connection with the party defendants, [Rosario] and

the underlying case and controversy.”9 Id. at 14.

       Our review of a trial court’s ruling concerning a petition to open a

default judgment is well-settled: “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.” Green Acres Rehab., supra, 113 A.3d at 1270 (quotation

omitted).

       Unlike a petition to strike a judgment, “a petition to open a judgment

is an appeal to the equitable powers of the court.” Mother's Rest. Inc. v.

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9
  During the hearing on Chiu’s petition, Chiu’s counsel explained PMG was
the property manager, and Northwood was the owner, of the building at
which Rosario was injured. N.T., 8/14/2015, at 6. However, counsel stated
Chiu “doesn’t have any ownership interest, management interest or control
of Northwood [or] Philly Management Group.” Id. In fact, he claimed Chiu’s
only connection to the parties is as the owner of the Castor Avenue property,
where PMG is a tenant. Id. at 5.



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Krystkiewicz, 861 A.2d 327, 336 (Pa. Super. 2004) (en banc) (quotation

omitted). Accordingly, if, as here, a party’s right to relief is based upon a

challenge to the factual averments contained in the record at the time the

default judgment was entered, he should seek to open the judgment, not

strike it. Id.

      Ordinarily, if a petition to open a judgment is to be successful, it
      must meet the following test: (1) the petition to open must be
      promptly filed; (2) the failure to appear or file a timely answer
      must be excused; and (3) the party seeking to open the
      judgment must show a meritorious defense.... In making this
      determination, a court can consider facts not before it at the
      time the judgment was entered.

Id. (quotation omitted). “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.”    US Bank N.A. v.

Mallory, 982 A.2d 986, 995 (Pa. Super. 2009).

      In denying Chiu’s petition to open, the trial court emphasized Chiu

waited “more than seven years after the entry of default judgment” to file

his petition to open.    Trial Court Opinion, 1/5/2016, at 4 (emphasis in

original). Furthermore, the court explained that even if it determined Chiu

did not discover the default judgment until he was served with the writ of

revival on October 21, 2014, he still “waited approximately 168 days from

this notice to file his petition to open” on March 31, 2015, and offered no

explanation for the five-month delay. Id. at 4-5.       Accordingly, the court

found Chiu failed to act promptly in filing his petition to open the default

judgment.

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      We find no abuse of discretion on the part of the trial court. Contrary

to Chiu’s argument, the trial court properly focused on the delay between

the date Chiu actually learned of the default judgment (i.e., service of the

writ of revival in October of 2014), and the filing of the petition to open (i.e.,

March 31, 2015). Indeed, the record includes an affidavit of service averring

that the writ of revival was personally served on an adult male at Chiu’s

Brighton Street residence on October 21, 2014.         See Affidavit of Process

Server, filed 11/3/2014.     Assuming arguendo, the service of the writ of

revival was the first time Chiu learned the default judgment had been

entered against him, he still waited more than five months to file a

petition to open the judgment. The trial court acted well within its discretion

in concluding the petition was not “promptly filed.” Mother’s Rest., supra,

861 A.2d at 366. See US Bank, supra, 982 A.2d at 995 (delay of 82 days

between notice of entry of default judgment and filing of petition to open

was not prompt).

      The trial court also found Chiu failed to satisfy the second prong of the

test in that he neglected to provide a “justifiable explanation for his failure to

file an Answer to the Complaint.” Trial Court Opinion, 1/5/2016, at 5. We

agree.    “The appellate courts have usually addressed the question of

legitimate excuse in the context of an excuse for failure to respond to the

original complaint in a timely fashion.” US Bank, supra, 982 A.2d at 995

(emphasis supplied).




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        In his petition to open the judgment, Chiu averred he is a “Chinese

immigrant who does not speak English” and “had no legal representation

when [j]udgment was entered against him.”                Chiu’s Petition to Strike or

Open the Default Judgment Entered in Favor of Plaintiff Abigail Rosario,

3/31/2015, at ¶¶ 2, 4. Furthermore, he asserted he “immediately filed this

petition after he retained counsel” once the judgment was revived. Id. at ¶

21. He did not explain either in his petition or in his brief before this Court

why he failed to file an answer to the original complaint.             Indeed, Chiu

admitted in his petition that “the original complaint had been served to [him]

at his home at … Brighton Street” in July of 2007. Id. at ¶ 7. See also

Complaint, 7/18/2007, Certificate of Service.

        Although Chiu emphatically argues he has no connection to the

underlying controversy, and equitable considerations require this Court to

open the underlying judgment,10 we remind him that neither this Court nor

the trial court may “open a default judgment based on the ‘equities’ of the

case when the defendant has failed to establish all three of the required

criteria.”    US Bank, supra, 982 A.2d at 995.                 Here, Chiu failed to

demonstrate two of those prongs:               (1) his petition to open was promptly

filed and (2) that he had a reasonable excuse for failing to answer the




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10
     See Chiu’s Brief at 14.



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complaint. Consequently, we are compelled to conclude the trial court did

not abuse its discretion in denying his petition to open the default judgment.

      Because Chiu has failed to establish that the trial court erred or

abused its discretion in denying his petition to strike or open the default

judgment, we affirm the order on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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