J-A04014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PATRICK R. STOCKI                             IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    JESSE GOBLE, VICTORINA LALLAVE
    A/K/A VICTORINA LALLAVE GOBLE,
    FORREST M. SWAYDIS

                             Appellants               No. 999 MDA 2017


                  Appeal from the Order Entered May 24, 2017
              In the Court of Common Pleas of Lackawanna County
                        Civil Division at No.: 2015-02937


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 14, 2018

        Appellant/defendant Victorina Lallave a/k/a Victorina Lallave Goble

(“Defendant”),1 appeals from the May 24, 2017 order of the Court of Common

Pleas of Lackawanna County (“trial court”), denying her petition to open a

default judgment entered in favor of Appellee/plaintiff Patrick R. Stocki

(“Plaintiff”). Upon review, we remand for further proceedings.

        The facts and procedural history of this case are undisputed. On April

28, 2015, Plaintiff initiated this civil action by filing a praecipe for writ of

summons against defendants. On May 27, 2015, Plaintiff filed a praecipe to


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1Defendants Jesse Goble and Forrest M. Swaydis are not parties to the instant
appeal.
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reissue the writ of summons. The docket indicates that on June 23, 2015, a

Deputy Sheriff of Lackawanna County allegedly served the writ of summons

on all defendants by handing it to Maulik Reeves, identified as “person in

charge,” at 169-171 Sussex Street, Old Forge, Pennsylvania 18518 (the

“Address”). On August 18, 2015, Plaintiff filed a civil complaint against the

defendants, alleging negligence.2 Plaintiff alleged that on May 27, 2013, he

was walking his dog near his home when the defendants’ dog, that was

unrestrained, attacked him.         Specifically, the defendants’ dog allegedly bit

Plaintiff on the right arm, causing him to fall to the ground. Plaintiff alleged

that, because of the attack, he suffered and continues to suffer a laceration of

the right arm, scars to his right arm, abrasions to his left hand, nightmares,

and a shock to his nerves and nervous system.

       The record indicates that Plaintiff allegedly served the complaint on the

defendants by Certified Mail, Return Receipt Requested, and First Class at the

Address. On October 13, 2015, approximately fifty-five days after service of

the complaint, Plaintiff filed a certificate of service, indicating that he served

on the defendants a notice of default judgment by Certified Mail, Return

Receipt Requested, and First Class at the Address. On November 23, 2015,

approximately forty-one days after allegedly serving on the defendants a

notice of default judgment, Plaintiff filed a praecipe for entry of default


____________________________________________


2The complaint contained a notice to defend, as required under Pa.R.C.P. No.
1018.1.


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judgment. The Clerk of Judicial Records entered default judgment against the

defendants. On the same date, Plaintiff filed another certificate of service,

indicating that he served on the defendants a praecipe for entry of judgment

by default and entry of judgment by Certified Mail, Return Receipt Requested,

and First Class at the Address.

      On March 8, 2017, more than a year after the entry of default judgment,

Defendant filed a petition to open the default judgment to which she attached

her proposed answer to the complaint in accord with Pa.R.C.P. No. 237.3(a).

In the petition, Defendant alleged that she never was served with a copy of

the complaint and that, at the time of the alleged service of the complaint,

she did not reside at the Address. Rather, Defendant alleged that she resided

at an undisclosed location in light of a protection from abuse order entered

against her husband and co-defendant, Jesse Globe. She further alleged that

she never received a copy of the ten-day notice of default, as required under

Pa.R.C.P. Nos. 237.1(a)(2) and 237.5.     On the same date, the trial court

issued a rule to show cause, indicating that a hearing would be held on May

3, 2017 at 2:00 p.m. on Defendant’s petition. The docket, however, does not

reveal that a hearing was conducted on Defendant’s petition to open default

judgment consistent with Pa.R.C.P. Nos. 206.6 and 207.

      Instead, on May 24, 2017, the trial court denied without a hearing

Defendant’s petition to open the default judgment. Defendant timely appealed

to this Court. The trial court ordered Defendant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Defendant complied, raising

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sixteen assertions of error. In response, the trial court issued a Pa.R.A.P.

1925(a) opinion, concluding that Defendant was not entitled to relief.

     On appeal, Defendant raises seven issues for our review:

     [I.] Did the trial court err by refusing to open the default judgment
     where the record reflects that [Defendant] was not served causing
     a fatal defect in the procedural aspects of service of original
     process upon [Defendant]?

     [II.] Did the trial court abuse its discretion in denying
     [Defendant’s] petition to open the default judgment where
     [Plaintiff] could not establish that original process was served
     upon [Defendant] in compliance with [Pa.R.C.P. No. 402]?

     [III.] Did the trial court abuse its discretion or commit an error of
     law where it appears from a review of the record that there is no
     evidence to support the court’s findings?

     [IV.] Did the trial court abuse its discretion or commit an error of
     law in failing to call witnesses, permit the presentation of evidence
     and cross-examination of witnesses, before issuing its May 24,
     2017 order?

     [V.] Did the trial court err in denying the petition to open the
     default judgment and failing to consider all three criteria for
     opening a default where numerous meritorious defenses to the
     allegations were contained in [Defendant’s] proposed answer with
     new matter to [Plaintiff’s] complaint, where [Defendant] provided
     a reasonable explanation for failing to file a timely responsive
     pleading, and when [Defendant], through present counsel,
     promptly filed a petition to open default?

     [VI.] Where [Defendant’s] petition to open possessed a
     reasonable explanation or legitimate excuse for her default, did
     the trial court abuse its discretion in failing to give weight to
     [Defendant’s] meritorious defenses to the complaint?

     [VII.] Did the trial court err in denying the petition to open the
     default judgment by failing to consider the equities of the matter,
     the prejudice to [Defendant] if the petition to open was denied
     and whether [Plaintiff] would suffer any prejudice if the petition to
     open default was granted?


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Defendant’s Brief at 6-7 (unnecessary capitalizations omitted).

      At the outset, we note that, “[a]lthough orders of court denying motions

to strike or petitions to open default judgments are interlocutory, Pennsylvania

Rule of Appellate Procedure 311 provides that ‘[a]n appeal may be taken as

of right . . . from [ ] [a]n order refusing to open, vacate or strike off a

judgment.’” Keller v. Mey, 67 A.3d 1, 3 (Pa. Super. 2013). The fact that

Plaintiff here obtained default judgment against Defendant only on liability is

of no moment. There is “no support for the proposition that an aggrieved

party cannot seek to open, strike or vacate the entry of a default judgment

prior to the assessment of damages or the entry of a final decree.”

Mother’s Rest. Inc. v. Krystkiewicz, 861 A.2d 327, 335 (Pa. Super. 2004)

(en banc) (emphasis added). Accordingly, this appeal is properly before us.

      We now turn to the merits of Defendant’s appeal.         Our standard of

review of a denial of a petition to open a default judgment is as follows:

         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.’

      Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000)
      (citation omitted). This Court may, after a review of the case, find
      an abuse of discretion if equity clearly favored opening the
      judgment. Id. (citation omitted). “An abuse of discretion is not
      a mere error of judgment, but if in reaching a conclusion, the law
      is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice, bias
      or ill will, as shown by the evidence or the record, discretion is
      abused.” Id. (citation omitted).


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      Generally speaking, a default judgment may be opened if the
      moving party has (1) promptly filed a petition to open the default
      judgment, (2) pleaded a meritorious defense to the allegations
      contained in the complaint, and (3) provided a reasonable excuse
      or explanation for failing to file a responsive pleading. Id. at
      1281.

Seeger v. First Union Nat. Bank, 836 A.2d 163, 165 (Pa. Super. 2003).

      Instantly, the trial court concluded that Defendant’s answer contained a

meritorious defense in accord with the second prong. The dispute, therefore,

turns on the first and third prongs. Plaintiff and Defendant proffer a different

version of the facts. Defendant claims that she was never served with the

complaint and the notice of default because she did not reside at the Address

during the timeframe in question, and thus, was unable to participate

meaningfully and timely in this action. Plaintiff disagrees, claiming that he

effectuated proper service upon Defendant. Given this conflict in facts and

the lack of an evidentiary hearing, we are unable to review the merits of this

appeal. In other words, to determine whether Defendant promptly filed her

petition to open default judgment and whether she provided a reasonable

excuse or explanation for failing to file a responsive pleading, the trial court

must hold an evidentiary hearing and render findings of fact, which we, as a

reviewing court, cannot do. We, therefore, remand this matter to the trial

court with instruction to hold an evidentiary hearing.

      Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/14/2018




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