J-S23029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMY URBINE                                        IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SEARS HOME IMPROVEMENT PRODUCTS,
INC.

                            Appellant                 No. 2699 EDA 2015


                  Appeal from the Order Entered July 30, 2015
                In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 2014-11373-CT


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 20, 2016

        Sears Home Improvement Products, Inc. (“SHIP”) appeals from the

order entered July 30, 2015, in the Chester County Court of Common Pleas,

denying its petition to open and strike the default judgment entered in favor

of Amy Urbine. A default judgment was entered against SHIP on October 6,

2014, in a magisterial district court, when SHIP failed to attend a hearing.

SHIP claims, however, it was never served with Urbine’s complaint.        On

appeal, SHIP contends the trial court abused its discretion and erred as a

matter of law by denying SHIP’s petition to open and strike the judgment.

For the reasons that follow, we affirm.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       The facts and procedural history underlying this appeal are as follows.

On July 9, 2014, Urbine filed a claim in magisterial district court alleging

SHIP negligently installed a heating and air conditioning unit at her home.

When SHIP failed to appear at a hearing on October 6, 2014, the district

justice entered a default judgment in favor of Urbine in the amount of

$12,181.32.

       On November 20, 2014, SHIP filed, in the Chester County Court of

Common Pleas, a petition to open and strike the default judgment.       In its

petition, SHIP averred: (1) it was never served with the complaint; (2) it

first learned of the judgment on November 13, 2014, when Urbine faxed a

copy of the judgment to Sears’ corporate office, and promptly filed this

petition a week later; and (3) it had a meritorious defense to Urbine’s

claims.1 The trial court entered a rule to show cause on December 10, 2014,

____________________________________________


1
  From what we can glean from the certified record, the complaint was
served on SHIP at 9001 Rico Road, Monroeville, PA. SHIP asserts, however,
that it has not maintained an office at that address since 2000, but rather
maintains an office at 800 Calcon Hook Road, Bay 6, Sharon Hill, PA. See
Petition to Open and Strike Default Judgment, 11/20/2014, at ¶¶ 6-7. It
claims it first became aware of the judgment when Urbine faxed a copy of
the document to “the corporate headquarters of Sears Holdings Coproration,
SHIP’s parent company.” Id. at ¶ 2. In her answer to the petition, Urbine
averred the Monroeville address is listed as SHIP’s registered office address
on the Pennsylvania Department of State’s website. See Urbine’s Answer to
SHIP’s Petition to Open or Strike Default Judgment, 12/16/2014, at ¶ 7.
Furthermore, she contends the Sharon Hill address is not listed on any of
SHIP’s agreements or website, and that she served the complaint on the
Sears store at the Exton Square Mall, which is listed as an address for SHIP
under an internet search for www.searshomeservices.com. Id. at ¶¶ 7-8.



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and Urbine filed an answer to the petition on December 16, 2014.            No

further action was taken on the petition until May 28, 2015, when SHIP filed

a praecipe for determination. Urbine responded by filing a memorandum of

law in opposition to SHIP’s petition on June 3, 2015. Thereafter, on July 29,

2015, the trial court entered an order denying SHIP’s petition to open or

strike the default judgment. This timely appeal followed.2

       On appeal, SHIP argues the trial court abused its discretion and erred

as a matter of law when it denied SHIP’s petition to open the default

judgment.3 First, SHIP contends it “demonstrated in its petition that it met

the criteria for the default judgment to be opened.” 4       SHIP’s Brief at 9.

Second, SHIP states that, contrary to the trial court’s assertion, it was not

required to file an appeal to the common pleas court pursuant to
____________________________________________


2
  On September 2, 2015, the trial court ordered SHIP to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
SHIP complied with the court’s directive, and filed a concise statement on
September 15, 2015.
3
 Although SHIP sought both to open and strike the judgment, its argument
on appeal focuses only on its request that the judgment be opened.
4
  It is well-established that “[t]o open a default judgment, a party 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 v. Boohar, 856 A.2d 156, 160 (Pa. Super. 2004) (citation omitted).
Here, SHIP asserts: (1) it had a legitimate excuse for failing to respond to
the complaint or appear at the hearing because it was never properly
served; (2) it had a meritorious defense because it properly installed
Urbine’s heating and air conditioning system, and promptly responded when
Urbine complained of a leak; and (3) it promptly filed the petition one week
after receiving notice of the judgment. See SHIP’s Brief at 10-11.



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Pa.R.C.P.M.D.J. 1002, because the 30-day appeal period had expired by the

time SHIP received a copy of the judgment.        See id. at 12.    Further, it

claims that, even if there were alternative methods by which it could have

challenged the judgment, “such procedures do not vitiate the petition to

open or strike as a long established procedure for attacking default

judgments.” Id. Third, SHIP argues that because the complaint was never

properly served, the Magisterial District Judge did not have personal

jurisdiction to enter the judgment, and SHIP was deprived of due process of

law. See id. at 12-13.

      Preliminarily, we note:   “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. & Nursing Ctr. v. Sullivan, 113 A.3d

1261, 1270 (Pa. Super. 2015) (quotation omitted). Here, however, the trial

court did not rule upon the merits of SHIP’s petition, but rather found the

petition was procedurally improper.     In the order denying SHIP’s petition,

the trial court stated: “[T]he proper procedure when a party is aggrieved by

a decision of a Magisterial District Judge is to file an appeal to the Court of

Common Pleas pursuant to Pa.R.C.P.M.D.J. 1001 et seq.” Order, 7/29/2015,

n.1. The trial court elaborated in its opinion:

      [SHIP] states that we erred by relying on Pa.R.C.P.M.D.J. 1001
      et seq. since [SHIP] first received notice of the default judgment
      after the expiration of the thirty day period provided for in
      Pa.R.C.P.M.D.J. 1002. As such, according to [SHIP], the instant
      Petition “was [its] only option.” We disagree. [SHIP] had the

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      option of filing with this court a Petition for Leave to Appeal Nunc
      Pro Tunc. As an alternative, even though it was not specifically
      stated in our Order, [SHIP] had the option of filing a Praecipe for
      Writ of Certiorari pursuant to Pa.R.C.P.M.D.J. 1009. Specifically,
      pursuant to Pa.R.C.P.M.D.J. 1009B, if lack of jurisdiction over the
      parties or subject matter is claimed, the praecipe may be filed at
      any time after judgment. In any event, [SHIP’s] Petition to
      Open and/or Strike Default Judgment was procedurally improper
      under the circumstances.

Trial Court Opinion, 10/20/2015, at 2-3.

      SHIP argues, however, that the court’s ruling was erroneous because

Rule 1002 “has no application” where, as here, SHIP first received notice of

the default judgment after the 30-day appeal period expired. SHIP’s Brief at

12.   Moreover, SHIP states that while there may have been alternative

procedures available to challenge the judgment, it was still “well within its

rights to seek relief from the improper default judgment by filing a petition

to open or strike.”    Id.   We disagree.     SHIP’s failure to recognize the

procedural posture of this case is its undoing.

      The judgment SHIP seeks to challenge was entered by a magisterial

district judge. Therefore, SHIP’s only two avenues for relief were to either

file an appeal de novo or praecipe for a writ of certiorari in the court of

common pleas.     See Pa.R.C.P.M.D.J. 1002, 1009.      Rule 1002 provides, in

relevant part:

      A party aggrieved by a judgment for money, … may appeal
      therefrom within thirty (30) days after the date of the entry of
      the judgment by filing with the prothonotary of the court of
      common pleas a notice of appeal on a form which shall be
      prescribed by the State Court Administrator together with a copy
      of the Notice of Judgment issued by the magisterial district
      judge. The prothonotary shall not accept an appeal from an


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      aggrieved party which is presented for filing more than thirty
      (30) days after the date of entry of the judgment without leave
      of court and upon good cause shown.

Pa.R.C.P.M.D.J. 1002(A).    Although the Rule requires the appeal be filed

within 30 days after judgment is entered, it does provide for additional time

with “leave of court and upon good cause shown.” Id. Therefore, pursuant

to the express language of the rule, SHIP could have requested to file an

appeal de novo in the trial court. See Wilkes-Barre Clay Products, Co. v.

Koroneos, 493 A.2d 744, 746 (Pa. Super. 1985) (“A party aggrieved by the

judgment of a district justice may appeal that judgment as of right to a court

of common pleas under Pa.R.C.P.D.J. 1002. Because the definition of

‘judgment’ in Pa.R.C.P.D.J. 1001(1) includes a default judgment entered

pursuant to Pa.R.C.P.D.J. 319, this right of appeal extends to default

judgments.”) (citation omitted).

      However, based on its particular claim, SHIP also could have filed a

praecipe in the trial court for a writ of certiorari.   Rule 1009 provides, in

relevant part:

      A. Unless he was the plaintiff in the action before the magisterial
      district judge, a party aggrieved by a judgment may file with the
      prothonotary of the court of common pleas a praecipe for a writ
      of certiorari claiming that the judgment should be set aside
      because of lack of jurisdiction over the parties or subject
      matter, improper venue or such gross irregularity of procedure
      as to make the judgment void. If the party aggrieved by the
      judgment was the plaintiff in the action before the magisterial
      district judge, he may file a praecipe for a writ of certiorari only
      on the last mentioned ground.

      B. If lack of jurisdiction over the parties or the subject
      matter is claimed, the praecipe may be filed at any time


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     after judgment. Otherwise it shall be filed within thirty (30)
     days after the date of the judgment.

Pa.R.C.P.M.D.J. 1009(A), (B). Here, SHIP contends the magisterial district

judge had no jurisdiction to enter the judgment because SHIP was never

served with the complaint. As set forth in subsection B, when an aggrieved

party complains the magisterial district court lacked jurisdiction, “the

praecipe may be filed at any time after judgment.” Id.

     SHIP provides no authority for its assertion that an aggrieved party

may challenge the entry of a default judgment in a magisterial district court

by filing a petition to open the judgment in the court of common pleas.

Indeed, our research reveals the magisterial district procedural rules do not

contemplate such a remedy.     See generally, Pa.R.C.P.M.D.J. 101 et seq.

Accordingly, we conclude the trial court correctly denied SHIP’s petition to

open as procedurally improper. Furthermore, we need not address SHIP’s

due process argument since it still has opportunity to be heard on its

complaints by complying with procedural rules outlined herein.    See In re

Bridgeport Fire Litig., 8 A.3d 1270, 1288 (Pa. Super. 2010) (citations

omitted) (““The core requirements of due process are notice and the

opportunity to be heard ‘at a meaningful time and in a meaningful

ma[nn]er.’”), appeal denied, 23 A.3d 1003 (Pa. 2011).

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2016




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