J-S41031-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WELLS FARGO BANK, N.A.                    :   IN THE SUPERIOR COURT OF
 SUCCESSOR BY MERGER TO                    :        PENNSYLVANIA
 WACHOVIA BANK, N.A.                       :
                                           :
                     Appellee              :
                                           :
              v.                           :
                                           :
 RAHEEM BEY AND RONALD CLARKE              :
                                           :
                     Appellant             :        No. 1570 EDA 2017

                Appeal from the Order Entered April 13, 2017
            In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 14-05-02361


BEFORE:    GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                    FILED SEPTEMBER 11, 2018

      Appellants, Raheem Bey, and intervener, Ronald Clarke, appeal from

the order entered in the Philadelphia County Court of Common Pleas, which

denied their petition to open the default judgment entered against Appellant

Bey in this mortgage foreclosure action. We affirm.

      The relevant facts and procedural history of this case are as follows. On

May 19, 2014, Appellee, Wells Fargo Bank, N.A. successor by merger to

Wachovia Bank, N.A. (“Bank”), filed a mortgage foreclosure complaint against

Appellant Bey.     In May and June 2014, the Bank filed affidavits of service

indicating it had effected service of the complaint upon Appellant Bey at two

separate addresses on May 27, 2014, and June 2, 2014. Appellant Bey failed

to file a responsive pleading. Appellant Bey also failed to attend a conciliation


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* Former Justice specially assigned to the Superior Court.
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conference on September 18, 2014. Bank sent its ten-day notice of intent to

file a default judgment to Appellant on January 20, 2015. On February 5,

2015, the Bank filed a praecipe to enter a default judgment against Appellant

Bey, which the Prothonotary entered in the amount of $298,998.18.

     Appellant Clarke, who is Appellant Bey’s father, moved to intervene in

the petition to open on April 24, 2015. Following a hearing on July 1, 2015,

the court permitted Appellant Clarke to intervene on July 2, 2015. On October

16, 2015, Appellant Bey filed a pro se motion to stay proceedings, which the

court dismissed on November 12, 2015. In March and April 2016, Appellants

jointly filed several pro se motions and pleadings, which the court

subsequently denied as moot or dismissed as procedurally improper.

     After several continuances upon the Bank’s request, the mortgaged

property sold at sheriff sale on January 10, 2017. That same day, counsel

entered an appearance of behalf of both Appellants. On January 11, 2017,

Appellants filed an emergency motion to stay transfer of title. On February

22, 2017, Appellants filed a petition to open the default judgment, asserting,

inter alia, there existed no signed mortgage and note to support the Bank’s

claim. In their petition to open the default judgment, Appellants provided

three explanations for filing of the petition to open over two years after the

default judgment had been entered: (i) the Bank prolonged the case by

repeatedly requesting the court to continue the sheriff’s sale; (ii) Appellant

Clarke was not able to participate in the case until July 2015; and (iii)


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Appellant Bey first contacted counsel on the day of the January 10, 2017

sheriff’s sale. Appellants offered no justification for Appellant Bey’s failure to

file a timely responsive pleading. On April 11, 2017, the court conducted a

hearing on Appellants’ petition and denied relief on April 13, 2017. That same

day, in a separate order the court denied Appellants’ motion to stay transfer

of title.

       Appellants timely filed two notices of appeal from the court’s April 13

orders on May 12, 2017, and May 13, 2017, respectively. The court did not

order Appellants to file a concise statement of errors complained of on appeal

per Pa.R.A.P. 1925(b), and Appellants filed none.       On June 23, 2017, this

Court consolidated Appellants’ appeals sua sponte. On January 29, 2018, the

Bank filed an application to quash the appeal from the order denying

Appellants’ motion to stay transfer of title, which this Court granted on

February 20, 2018.      The remaining appeal implicates the order denying

Appellants’ petition to open the default judgment.

       Appellants raise the following issues for our review:

            WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
            WHEN IT ENTERED THE DEFAULT JUDGMENT AND WHEN IT
            REFUSED TO OPEN…JUDGMENT, AND DISMISS THE
            COMPLAINT BECAUSE IT APPEARS THAT APPELLANTS WERE
            NEVER SERVED WITH THE REINSTATED COMPLAINT AND
            NEVER SERVED WITH THE 10-DAY NOTICE OF INTENTION
            TO FILE A PRAECIPE FOR ENTRY OF JUDGMENT BY
            DEFAULT[?]

            WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
            IN REFUSING TO OPEN THE DEFAULT JUDGMENT WHEN
            APPELLANT  RAHEEM    BEY  HAD    PRESENTED   THE

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         MERITORIOUS DEFENSE THAT HE HAD NEVER GIVEN A
         MORTGAGE TO [THE BANK]; AND WHEN APPELLEE HAD NO
         SUPPORTING DOCUMENTARY EVIDENCE THAT [APPELLANT
         BEY] HAD GIVEN SUCH MORTGAGE[?]

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
         WHEN IT FAILED TO OPEN THE DEFAULT JUDGMENT AFTER
         BEING PRESENTED WITH CREDIBLE EVIDENCE OF FRAUD,
         EVEN IF THE FILING OF THE ASSOCIATED PETITION HAD
         BEEN PROCEDURALLY IMPROPER[?]

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
         REFUSING TO OPEN THE DEFAULT JUDGMENT WHEN THE
         RECORD SHOWS THAT APPELLANT RAHEEM BEY FILED THE
         PETITION TO OPEN AS SOON AS HE REASONABLY COULD;
         AND WHEN IT SHOWS THAT HE WAS NOT NOTIFIED OF THE
         CONCILIATION CONFERENCE WHICH RESULTED IN THE
         ENTRY OF THE JUDGMENT[?]

(Appellants’ Brief at 4).

      In their issues combined, Appellants argue the Bank failed to serve

Appellant Bey with the complaint, the reinstated complaint, and the 10-day

notice of intent to file a praecipe to enter default judgment; Bank also

neglected to give him notice of the September 18, 2014 conciliation

conference. Appellants aver the Bank possesses no mortgage or promissory

note signed by Appellant Bey. Appellants submit the court overlooked the

deed to the mortgaged property. Appellants posit they filed the February 22,

2017 petition to open the default judgment as soon as they reasonably could.

Appellants conclude this Court should open the default judgment and dismiss

the complaint or, alternatively, remand the case to the trial court for a hearing

on Appellants’ claims. We disagree.

      The decision to grant or deny a petition to open a default judgment is a

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matter of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90,

477 A.2d 471 (1984). A petition to open a default judgment is an appeal to

the court’s equitable powers, and absent an error of law or an abuse of

discretion, this Court will not disturb that decision on appeal. Reid v. Boohar,

856 A.2d 156 (Pa.Super. 2004).

      Rule 1037(b) provides in pertinent part as follows: “The prothonotary,

on praecipe of the plaintiff, shall enter judgment against the defendant for

failure to file within the required time a pleading to a complaint which contains

a notice to defend or…for any relief admitted to be due by the defendant’s

pleadings.”   Pa.R.C.P. 1037(b).      Rule 237.3(b) states: “If the petition

[challenging the default judgment] is filed within ten days after entry of the

judgment on the docket, the court shall open the judgment if the proposed

complaint or answer states a meritorious cause of action or defense.”

Pa.R.C.P. 237.3(b). Where a petition to open a default judgment is not filed

within ten days of entry of the default judgment, the movant must “(1)

promptly file a petition to open judgment, (2) provide a meritorious defense;

and (3) offer a legitimate excuse for the delay in filing a timely answer.” Reid,

supra at 160. To succeed, the petitioner must meet all three requirements.

US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa.Super. 2009); Duckson v.

Wee Wheelers Inc., 620 A.2d 1206 (Pa.Super. 1993). In other words, if the

petitioner fails to meet just one requirement for opening judgment, the court

can deny relief without considering arguments made with regard to the two


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other requirements. Id. at 1209. If the petitioner has made some showing

as to all three prongs of the test, then the court is entitled to consider each

point in light of all the “circumstances and equities of the case.” Id. Courts

“must determine whether there are equitable considerations which require

that a defendant, against whom a default judgment has been entered, receive

an opportunity to have the case decided on the merits.” Id. at 1208.

      With respect to the first requirement that the petitioner promptly file a

petition to open, this Court does not “employ a bright line test”; courts focus

“on two factors: (1) the length of the delay between discovery of the entry of

the judgment and filing the petition to open judgment, and (2) the reason for

the delay.” Flynn v. America West Airlines, 742 A.2d 695, 698 (Pa.Super.

1999). Given an acceptable reason for the delay, one month or less between

the entry of the default judgment and the filing a petition for relief from the

judgment typically meets the time requirement for a prompt filing of a petition

for relief. Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa.Super.

2009).    See also US Bank N.A., supra (comparing cases and rejecting

eighty-two day interval between default judgment and petition for relief as

tardy).

      With respect to the second requirement of a justifiable excuse, courts

look to the specific circumstances of the case to determine whether the

petitioner offered a legitimate explanation for the delay that caused entry of

a default judgment.    Id.   “While some mistakes will be excused, …mere


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carelessness will not be….” Bahr v. Pasky, 439 A.2d 174, 177 (Pa.Super.

1981). “[P]ro se status does not entitle a party to any particular advantage

because of his…lack of legal training.” Deek Investment, L.P. v. Murray,

157 A.3d 491, 494 (Pa.Super. 2017). A pro se litigant must comply with the

procedural rules set forth in the Pennsylvania Rules of Court.         Jones v.

Rudenstein, 585 A.2d 520, 522 (Pa.Super. 1991), appeal denied, 529 Pa.

634, 600 A.2d 954 (1991). “[A]ny layperson choosing to represent [himself]

in a legal proceeding must, to some reasonable extent, assume the risk that

[his] lack of expertise and legal training will prove [his] undoing.” O’Neill v.

Checker Motors Corp., 567 A.2d 680, 682 (Pa.Super. 1989).

       Instantly, the Prothonotary entered a default judgment against

Appellant Bey on February 5, 2015.1 Over two years later, Appellants filed

their petition to open the default judgment on February 22, 2017, which is not

prompt on its face. See Myers, supra; US Bank N.A., supra. Appellants

provided the following explanations for their late filing of the petition open the

default judgment: (i) the Bank repeatedly requested the court to continue the

sheriff’s sale; (ii) Appellant Clarke was unable to participate in the case until

July 2015; and (iii) Appellant Bey first contacted counsel on the day of the

January 10, 2017 sheriff’s sale. Appellants’ reasons, however, do not justify


____________________________________________


1 The praecipe for entry of the default judgment contains the requisite
certification of mailing of the 10-day notice of intent to take default judgment
and states the time limits provided for in that notice have expired. See
Pa.R.C.P. 237.1.

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their delayed challenge to the default judgment.             First, Appellants do not

describe how the Bank’s repeated postponement of the sheriff sale hindered

Appellants’    ability   to   challenge    the   default   judgment.    Rather,   the

postponements likely prolonged the case and gave Appellants additional time

to file their petition to open the default judgment, albeit belatedly. Second,

Appellant Clarke’s intervention in July 2015, did not prevent: (1) Appellant

Bey from challenging the default judgment earlier; and (2) Appellants from

filing their petition to open the default judgment before February 2017.2

Finally, Appellant Bey’s pro se litigation of this case until January 2017 does

not excuse the failure to challenge the default judgment before February

2017. See Deek, supra; Jones, supra. Appellants have not presented a

justifiable excuse for their failure to assert a prompt challenge to entry of the

default judgment to satisfy the first requirement to open the default judgment.

See Reid, supra; Flynn, supra.

       Additionally, Appellant Bey failed to file a timely responsive pleading to

the Bank’s complaint before entry of the default judgment.                Appellants,

however, offered no excuse for Appellant Bey’s failure to file any responsive

pleading, so they have not satisfied the third requirement to open the default

judgment. See Reid, supra. Based upon the foregoing, Appellants failed to


____________________________________________


2 To the extent Appellants assert Appellant Bey could not have challenged the
default judgment against him until Appellant Clarke intervened, that argument
is illusory; Appellant Clarke lacked standing to challenge the default judgment
because the judgment was not entered against him.

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satisfy two of the three criteria to open the default judgment against Appellant

Bey, and the trial court correctly denied their petition to open it. See id.;

Duckson, supra. See also Devine v. Hutt, 863 A.2d 1160, 1170 (Pa.Super.

2004) (reiterating principle that appellate court may affirm on any basis if

decision of trial court is correct). Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/18




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