J-A28011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FELICIA PIERCE                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CPR RESTORATION & CLEANING
SERVICES, LLC

                            Appellant                  No. 225 EDA 2014


                 Appeal from the Judgment December 10, 2013
              In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): 01322 December Term, 2012


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED NOVEMBER 25, 2014

       Appellant, CPR Restoration & Cleaning Services, LLC (“CPR”), appeals

from the judgment entered following the denial of CPR’s petition to strike

and/or open a default judgment entered in favor of Appellee, Felicia Pierce,

in this breach of contract case.1 We affirm.

       The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we will only briefly summarize them here.

On November 30, 2010, Appellee contracted CPR to clean and restore

personal property that had suffered soot and smoke damage from a fire in a

neighboring home. On December 11, 2012, Appellee commenced this action
____________________________________________


1
  The court also denied CPR’s emergency petition to stay the writ of
execution by order entered on the same date.
J-A28011-14


by filing a praecipe to issue writ of summons. Appellee served the writ of

summons on January 16, 2013, at CPR’s place of business on an employee,

who provided his last name to the process server.            Appellee filed her

complaint on March 20, 2013, alleging that CPR lost, damaged, and/or

destroyed her personal property.         The complaint included counts for

negligence and breach of contract. Appellee served the complaint by U.S.

mail on March 25, 2013. CPR did not file an answer.

      On April 15, 2013, Appellee mailed her ten-day notice of intent to file a

praecipe for entry of default judgment to CPR’s confirmed address. Eighteen

days later, on May 3, 2013, Appellee filed a praecipe for entry of default

judgment. Notice of the default judgment was also sent to CPR’s confirmed

address.   CPR did not attend a scheduled arbitration hearing to assess

damages    on   August   19,   2013.     The   arbitrators   awarded   Appellee

$48,111.58. Judgment on the award was entered on August 20, 2013, with

notice sent to CPR’s confirmed address. Appellee filed a praecipe for writ of

execution on November 7, 2013.

      On November 22, 2013, CPR filed an emergency motion to stay

execution and a petition to strike and/or open the default judgment.       The

trial court conducted a hearing on December 10, 2013, on the motion to

stay and the petition to strike and/or open the default judgment.

Immediately following the hearing, the trial court denied both CPR’s motion

to stay execution and its petition to strike and/or open the default judgment.


                                       -2-
J-A28011-14


CPR timely filed a notice of appeal on December 11, 2013, and a concise

statement of errors complained of on appeal, per Pa.R.A.P. 1925(b), on

December 18, 2013.

      CPR raises the following four issues on appeal:

         DID THE TRIAL COURT COMMIT REVERSIBLE LEGAL
         ERROR IN DENYING [CPR’S] PETITION TO STRIKE THE
         DEFAULT JUDGMENT, WHERE [APPELLEE’S] TEN-DAY
         NOTICE OF HER INTENTION TO ENTER A DEFAULT
         JUDGMENT PURSUANT TO [PA.R.C.P.] 237.1 WAS MAILED
         PRIOR TO THE EXPIRATION OF [CPR’S] TWENTY-DAY
         PERIOD TO ANSWER OR OTHERWISE RESPOND TO
         [APPELLEE’S] COMPLAINT?

         DID THE TRIAL COURT ABUSE ITS DISCRETION IN
         DENYING [CPR’S] PETITION TO STRIKE THE DEFAULT
         JUDGMENT WHERE [APPELLEE] COULD NOT ESTABLISH
         THAT ORIGINAL PROCESS WAS SERVED UPON A
         “MANAGER, CLERK OR OTHER PERSON FOR THE TIME
         BEING IN CHARGE” OF [CPR], A CORPORATION, IN
         COMPLIANCE WITH RULE 424 OF THE PENNSYLVANIA
         RULES OF CIVIL PROCEDURE?

         WHERE [CPR’S] PETITION TO OPEN THE DEFAULT
         JUDGMENT WAS TIMELY FILED AND WHERE [CPR]
         POSSESSED    A   REASONABLE    EXPLANATION   OR
         LEGITIMATE EXCUSE FOR ITS DEFAULT, DID THE TRIAL
         COURT ABUSE ITS DISCRETION IN FAILING TO GIVE
         WEIGHT TO [CPR’S] MERITORIOUS DEFENSES TO THE
         COMPLAINT?

         WHERE [CPR’S] PETITION TO OPEN TIMELY RAISED ITS
         MERITORIOUS DEFENSES OF JUDICIAL ESTOPPEL;
         RELEASE AND DOUBLE RECOVERY BY [APPELLEE]; THE
         GIST OF THE ACTION DOCTRINE; AND LIMITATION OF
         LIABILITY UNDER THE PARTIES’ CONTRACT, DID THE
         TRIAL COURT ABUSE ITS DISCRETION IN DENYING THE
         PETITION TO OPEN THE DEFAULT JUDGMENT?

(CPR’s Brief at 4).


                                    -3-
J-A28011-14


      In its issues combined, CPR first argues Appellee sent the ten-day

notice one day early, rendering the notice defective.     Next, CPR contends

that service of the writ of summons was defective because the process

server delivered the summons to a low-level employee who was not

authorized to accept service.    On these grounds, CPR submits the court

should have struck the default judgment. Alternatively, CPR states it timely

filed its petition to open the default judgment, possessed a legitimate excuse

for its default, and raised several meritorious defenses. CPR concludes the

court erred in denying its petition to strike and/or open the default

judgment. We disagree.

      An appeal regarding a petition to strike a default judgment implicates

the Pennsylvania Rules of Civil Procedure. Oswald v. WB Public Square

Associates, LLC, 80 A.3d 790, 793 (Pa.Super. 2013) (citing Skonieczny v.

Cooper, 37 A.3d 1211, 1213 (Pa.Super. 2012)).           Issues regarding the

operation of procedural rules of court present us with questions of law. Id.

Therefore, “our standard of review is de novo and our scope of review is

plenary.” Id.

      “A petition to strike a judgment is a common law proceeding which

operates as a demurrer to the record. A petition to strike a judgment may

be granted only for a fatal defect or irregularity appearing on the face of the

record.”   Midwest Financial Acceptance Corp. v. Lopez, 78 A.3d 614,

622-23 (Pa.Super. 2013). “[A] petition to strike is not a chance to review


                                     -4-
J-A28011-14


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.”   Oswald, supra at 794. A fatal

defect on the face of the record denies the prothonotary the authority to

enter judgment. Erie Ins. Co. v. Bullard, 839 A.2d 383, 388 (Pa.Super.

2003).    When a prothonotary enters judgment without authority, that

judgment is void ab initio. Id. “When deciding if there are fatal defects on

the face of the record for the purposes of a petition to strike a [default]

judgment, a court may only look at what was in the record when the

judgment was entered.” Cintas Corp. v. Lee’s Cleaning Services, Inc.,

549 Pa. 84, 90, 700 A.2d 915, 917 (1997).

      Regarding service of process, failure to adhere to the Pennsylvania

Rules of Civil Procedure can be a facially fatal defect. Id. at 91, 700 A.2d at

917-18.

          Service of process is a mechanism by which a court
          obtains jurisdiction of a defendant, and therefore, the rules
          concerning service of process must be strictly followed.
          Without valid service, a court lacks personal jurisdiction of
          a defendant and is powerless to enter judgment against
          [the defendant]. Thus, improper service is not merely a
          procedural defect that can be ignored when a defendant
          subsequently learns of the action…. However, the absence
          of or a defect in a return of service does not necessarily
          divest a court of jurisdiction of a defendant who was
          properly served. [T]he fact of service is the important
          thing in determining jurisdiction and…proof of service may
          be defective or even lacking, but if the fact of service is
          established jurisdiction cannot be questioned.

Id. (internal citations and quotation marks omitted). Pennsylvania Rule of

                                      -5-
J-A28011-14


Civil Procedure 402 discusses the requirements for service of original

process:

           Rule 402. Manner of Service. Acceptance of Service

           (a)    Original process may be served

              (1)    by handing a copy to the defendant; or

              (2)    by handing a copy

                                     *    *    *

                   (iii) at any office or usual place of business of
                   the defendant to his agent or to the person for
                   the time being in charge thereof.

Pa.R.C.P. 402(a)(1), (2)(iii).      Furthermore, Rule 424 of the Pennsylvania

Rules of Civil Procedure deals with service of process on a corporation:

           Rule 424. Corporations and Similar Entities

           Service of original process upon a corporation or similar
           entity shall be made by handing a copy to any of the
           following persons provided the person served is not a
           plaintiff in the action:

              (1) an executive officer, partner or trustee of the
           corporation or similar entity, or

              (2) the manager, clerk or other person for the time
           being in charge of any regular place of business or activity
           of the corporation or similar entity, or

              (3) an agent authorized by the corporation or similar
           entity in writing to receive service of process for it.

Pa.R.C.P. 424.        “[R]ules relating to service of process must be strictly

followed.”       Dubrey v. Izaguirre, 685 A.2d 1391, 1393 (Pa.Super. 1996)

(citation omitted). Any “person for the time being in charge” of any office or

                                         -6-
J-A28011-14


usual place of business of defendants must either be an individual with some

direct connection to the party to be served, or an individual whom a process

server determines to be authorized based on the individual’s representation

of authority, and which the process server attests to in an affidavit.   See

Grand Entertainment Group, Ltd v. Star Media Sales, Inc., 988 F.2d

476, 486 (3d Cir. 1993) (discussing service of process pursuant to Pa.R.C.P.

402). See also Pincus v. Mutual Assur. Co., 457 Pa. 94, 321 A.2d 906

(1974) (upholding service upon corporation and two corporate trustees

where process was served on manager of corporation’s offices, who refused

to give his name); American Vending Co., Inc. v. Brewington, 432 A.2d

1032 (Pa.Super. 1981) (holding service upon individual was proper where

process was served on adult female in charge who refused to give her name;

“in the absence of fraud, a sheriff’s return which is complete on its face is

conclusive and immune from attack as to facts of which the sheriff

presumptively has personal knowledge”).

      Rule 237.1 of the Pennsylvania Rules of Civil Procedure deals with

notice of intent to take a default judgment and provides in relevant part as

follows:

           Rule 237.1 Notice of Praecipe for Entry of Judgment
                of Non Pros for Failure to File Complaint or by
                Default for Failure to Plead

           (a)(1)   As used in this rule,

                                    *       *   *


                                        -7-
J-A28011-14


         “judgment by default” means a judgment entered by
         praecipe pursuant to Rules 1037(b), 1511(a), 3031(a) and
         3146(a).

         (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.

         The ten-day notice period in subdivision [(a)(2)(ii)] shall
         be calculated forward from the date of the mailing or
         delivery, in accordance with Rule 106.

Pa.R.C.P. 237.1(a)(1), (2)(ii) (emphasis added). The intent of Rule 237.1 is

to allow the defaulting party a full ten-day period to cure the default. Acre

v. Navy Brand Mfg. Co., 571 A.2d 466, 469 (Pa.Super. 1990).

      Under the doctrine of substantial compliance, the trial court may

“overlook any procedural defect that does not prejudice a party’s rights.”

Womer v. Hilliker, 589 Pa. 256, 267, 908 A.2d 269, 276 (2006) (emphasis

in original).   “[P]rocedural rules are not ends in themselves, and rigid

application of [the Rules] does not always serve the interest of fairness and

justice.” Id. Rule 126 incorporates the doctrine of substantial compliance

into the Pennsylvania Rules of Civil Procedure as follows:

         Rule 126. Liberal Construction and Application of
              Rules


                                     -8-
J-A28011-14


        The rules shall be liberally construed to secure the just,
        speedy and inexpensive determination of every action or
        proceeding to which they are applicable. The court at
        every stage of any such action or proceeding may
        disregard any error or defect of procedure which does not
        affect the substantial rights of the parties.

Pa.R.C.P. 126.   Rule 126 allows an equitable exception for parties “who

commit a misstep when attempting to do what any particular rule requires.”

Womer, supra at 268-69, 908 A.2d at 276. Rule 126 does not excuse a

party’s complete noncompliance with the rules, but Rule 126 “is available to

a party who makes a substantial attempt to conform.” Id. at 271, 908 A.2d

at 278 (holding there was no compliance, where party failed to take any

steps to conform with Rule 1042.3 for filing certificate of merit); Pomerantz

v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978) (holding

appellant substantially complied with Rule 1038(d) for filing exceptions,

although pleading was erroneously titled motion for new trial, and appellee

suffered no prejudice when trial court considered appellant’s pleading).

Compare Oswald, supra at 796 (holding ten-day notice per Rule 237.1

was defective because language of notice was not substantially in form

required under Rule 237.5).

     “A petition to open a default judgment and a petition to strike a default

judgment seek distinct remedies and are generally not interchangeable.”

Stauffer v. Hevener, 881 A.2d 868, 870 (Pa.Super. 2005).

        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

                                    -9-
J-A28011-14


          sound discretion of the trial court, and we will not overturn
          that decision absent a manifest abuse of discretion or error
          of law.

Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa.Super. 2004), appeal

denied, 583 Pa. 663, 875 A.2d 1075 (2005).

          Judicial discretion requires action in conformity with law on
          facts and circumstances before the trial court after hearing
          and consideration. Consequently, the court abuses its
          discretion if, in resolving the issue for decision, it
          misapplies the law or exercises its discretion in a manner
          lacking reason.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).

       Where a petition to open a default judgment is not filed within ten (10)

days of entry of the default judgment,2 the movant must (1) promptly file a

petition to open, (2) offer a justifiable excuse for the delay that caused the

default, and (3) aver a meritorious defense that, if proved at trial, would

afford the defendant relief. Reid v. Boohar, 856 A.2d 156, 160 (Pa.Super.

2004).    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 even one requirement for opening judgment, the
____________________________________________


2
  Rule 237.3(b) of the Pennsylvania Rules of Civil Procedure provides: “If the
petition [for relief from the default judgment] is filed within ten days after
the 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).



                                          - 10 -
J-A28011-14


court can deny relief without even considering arguments made with regard

to the two 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. at 1209.    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 default 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


                                     - 11 -
J-A28011-14


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

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

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

1981).   In Flynn, for example, the petitioner’s unintentional failure to act

due to a defective mail receipt system was not considered a legitimate

explanation for the delay that caused entry of the default judgment. Flynn,

supra at 699. Finally, as to asserting a meritorious defense, the petitioner

must aver facts that if proved at trial would justify relief.   See Duckson,

supra.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Leon W.

Tucker, we conclude Appellant’s issues merit no relief.         The trial court

opinion comprehensively discusses and properly disposes of the issues

presented.    See Trial Court Opinion, filed February 19, 2014, at 1-11

(finding: (1-2) trial court properly denied CPR’s petition to strike, because

record contained no fatal defects; service of writ of summons complied with

Pa.R.C.P. 424; process server entered CPR’s premises, confirmed it was

CPR’s place of business, and established that he was speaking with CPR’s

agent; CPR’s agent accepted summons without any indication that he lacked

authority; testimony from CPR’s VP of operations, that agent did not have

authority to receive service of process, was self-serving and lacked

credibility; Appellee’s 10-day notice was not fatally defective simply because


                                    - 12 -
J-A28011-14


it was mailed one day early; CPR failed to answer the complaint within 20

days; Appellee sent 10-day notice and then waited 18 more days before

filing praecipe for entry of default judgment; CPR had total of 38 days to

answer complaint; (3-4) court properly denied CPR’s petition to open

default judgment; regarding test to succeed on petition open the default

judgment: CPR’s petition was not prompt; CPR waited more than six months

after default judgment was entered before filing petition to open; testimony

from CPR’s VP of operations, that he only learned of default judgment when

sheriff arrived at CPR’s premises, lacked credibility; CPR’s explanation for

delay in filing petition to open was unreasonable; likewise, court found

incredible CPR’s excuse that it failed to act on complaint because CPR had

confused this suit with Appellee’s prior lawsuit, where Appellee subpoenaed

CPR as witness, and CPR believed it did not need to act because that other

lawsuit had settled; CPR failed to satisfy first two prongs of test to open

default judgment; court properly denied CPR’s petition regardless of possible

meritorious defenses).

     We emphasize that Rule 237.1(a)(2)(ii) requires the 10-day notice to

be sent at least ten days prior to the date of the filing of the praecipe

to enter judgment. Thus, the error to be corrected by a petition to strike

does not lie in the premature 10-day notice; the error lies only in a

premature entry of judgment.     See Acre, supra.      Here, Appellee might

have inadvertently sent the 10-day notice on the last day for CPR to plead to


                                   - 13 -
J-A28011-14


the complaint, when the twentieth day to respond to the complaint fell on a

Sunday and actually gave CPR an extra day to act on the complaint.

Nevertheless, consistent with the intent of Rule 237.1 (to allow the

defaulting party a full 10-day period to cure the default), see id., we

observe CPR had an additional eighteen days to act on Appellee’s

complaint. CPR utterly failed to act on Appellee’s complaint before and after

the initial twenty days to respond ended.     Although it was sent one day

early, Appellee’s 10-day notice was sent more than ten days before she filed

her praecipe for entry of the default judgment. Given CPR’s complete failure

to act on Appellee’s complaint, we conclude Appellee substantially complied

with Rule 237.1(a)(2)(ii) under the facts of this case; and the court properly

refused to strike the judgment simply because the 10-day notice was sent

one day early.    Accordingly, we affirm on the basis of the trial court’s

opinion.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2014




                                    - 14 -
                                                                                        Circulated 11/13/2014 11:34 AM




        FELICIA PIERCE
                                                                PHILADELPHIA COUNTY

                                                                COURT OF COMMON PLEAS



                         VS.
                                                                DECEMBER TERM 2012
                                                                NO. 01322
        CPR RESTORATION &CLEANING SERVICES, LLC.




                                                    ORDER

                                            \j;::::>
                AND NOW this               r0          day of December 2013, upon consideration of

        Defendant's Petition to Strike or Open the Judgment and Plaintiffs Response in

        Opposition thereto, it is hereby ORDERED and DECREED that the Petition is

        DENIED. The judgment entered in favor of the Plaintiff and against the Defendant

        in the amount of $48,111.58 plus costs, remains in full force and effect.



                         DOCKETED
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                          DE.C 1 0 2013
                               R.POSTELL
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                                                                                          J.
               Pierce Vs Cpr Restorati-ORDER



               IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIU
                     12120132200030:'!!&                        -1-


                                                /
                                            //
COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) R. POSTELL 12/10/2013
                                                                                      Circulated 11/13/2014 11:34 AM




          FELICIA PIERCE
                                                              PHILADELPHIA COUNTY

                                                              COURT OF COMMON PLEAS


                           VS.
                                                              DECEMBER TERM 2012
                                                              NO. 01322
          CPR RESTORATION &CLEANING SERVICES, LLC.




                                                   ORDER


                                              ~
                 AND NOW this             I   e     day of December 2013, upon consideration of

          Defendant's Emergency Petition to Stay Writ of Execution and Plaintiff's Response

          in Opposition thereto, it is hereby ORDERED and DECREED that the Petition is

          DENIED.




                    DOCKETED                                      THE COURT

                    lJE(: 1 0 Z013
                     R.POSTELL
                    OAY FORWARD




                           Pierce Vs Cpr Restorati-ORDER



                           1111111111111111111"'"1111111
                                 12120132200031
                                                            -1-




COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) R. POSTELL 12/10/2013      'j/I?
                                                                     i
                                                                                          /3[1307 }
                                                                                              Circulated 11/13/2014 11:34 AM




                 COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               CIVIL TRIAL DIVISION


FELICIA PIERCE                                                                               SUPERIOR COURT
                                    Pierce Vs Cpr Restoration & Creaning Service-OPFLD
                                                                                                  225 EDA2014
                 Appellee

                                    1111111111111111111111111
                                         12120132200041
        v.

CPR RESTORATION & CLEANING
SERVICES, LLC

                 Appellant



                                                OPINION

LEON W. TUCKER, J.                                                                       DATE: February 19, 2014


   I.         Procedural History & Facts


        This matter comes before the Superior Court on appeal from the denial of CPR

Restoration & Cleaning Services' (hereinafter referred to as "Appellant") Petition to Strike or

Open the Default Judgment.

        On December 11, 2012, Felicia Pierce (hereinafter referred to as "Appellee") commenced

this action by filing a Praecipe to Issue Writ of Summons. Praecipe to Issue Writ of Summons

(12111112).     On January 16, 2013, Appellee caused the Writ of Summons to be served at

Appellant's usual place of business to an employee of Appellant who provided his last name to

the process server pursuant to Pa.R. c.p 424. Aff. of Service (01117/2013).

        On March 20, 2013, Appellee filed her Complaint with notice to defend and served it

upon Appellant on March 25, 2013 by mailing it to Appellant pursuant to Pa.R.C.P.440. Compl.
                                                                             Circulated 11/13/2014 11:34 AM




(03/20/2013); Aff. of Service (04/15/2013).       In her Complaint, Appellee brought claims of

neg"lSence and breach of contract against Appellant arising from a November 30, 2010 cor... .tct

between the parties for Appellant to clean and restore personal property of Appellee's that had

suffered soot and smoke damage as a result of a fire in a house neighboring Appellee. Compl.       ~


3. Appellee alleged that Appellant lost, damaged, and/or destroyed Appellee's personal property

rendering it useless and devalued. Id.   ~   5.

       As a result of that same fire, Appellee brought an action against her homeowner's

insurance carrier for its failure to pay benefits under her policy. Pierce v. Allstate Property &

Casualty Insurance, Philadelphia Court of Common Pleas, November Term, 2011, No. 02173.

Appellant was subpoenaed as a witness in that case which ultimately settled. Appellant received

payment from the insurance carrier. Pet. to Open J. (11122/2013) ~~ 10-11.

       Appellant did not file an answer to the Complaint.        As a result, on May 3, 2013,

Appellee, filed a Praecipe to Entry of Default Judgment.         Judgment Entered by Default

(05/03/2013).   Prior to filing the Praecipe to Enter Default Judgment, on April 15, 2013,

Appellee mailed a Ten-Day Notice of her intention to file a praecipe for default judgment to

Appellant pursuant to Pa.R.C.P. 237.1. Id.

       On August 19,2013, after an arbitration hearing to assess damages, a Court of Common

Pleas Arbitration Panel entered an award against Appellants in the amount of $48,111.58.

Report & Award of Arbitrators (08/19/2013). Pursuant to the Arbitrators' Award, Appellee

entered judgment against Appellant in the amount of the Arbitrators' Award.              Judgment

(09120/2013). On November 7, 2013, Appellee filed a Praecipe for Writ of Execution. Praecipe

for Writ of Execution (11107/2013).




                                                  2
                                                                               Circulated 11/13/2014 11:34 AM




        On November 22, 2013, Appellant filed an Emergency Motion to Stay the Writ of

Ex,,~tltion   and a Petition to Strike or Open the Default Judgment.         Mot. to Stay WI .. of

Execution (11122/2013); Pet. to Open Default J. (11122/2013). In its Petition to Strike or Open

the Default Judgment, Appellant asserted that the default judgment should be stricken because

Appellee sent the Ten-Day Notice one day premature.            Pet. to Open J.   ~~   15-19.   In the

alternative, Appellant asserted that the judgment should be open because it had meritorious

defenses to Appellee's Complaint, namely that Appellee's claim of negligence was barred by the

gist of the action doctrine, Appellee would receive a double recovery in light of her settlement

with her insurance carrier, the contract between the parties limits liability, and Appellee failed to

comply with the Pennsylvania Rules of Civil Procedure by not attaching the contract to the

Complaint.    Id~~   20-33.


        Upon review of Appellant's Emergency Motion to Stay, the Court issued a Rule

scheduling a hearing on the Motion and staying all proceedings meanwhile.               Rule Issued

(11125/2013).    On December 10, 2013, at the hearing, Appellant asserted, for the first time, that

service of the Writ of Summons was defective because the process server delivered the summons

to a low-level employee that was not authorized to accept it.         The process server credibly

testified on behalf of Appellee that he established that the individual was an employee of

Appellant, that he specified to the employee who accepted service that he was delivering legal

documents for Appellant, and that the employee gave no indication that he was not authorized to

accept service on behalf of Appellant. N.T. (12/10/2013) at 14-18. Appellant offered testimony

of its Vice President of Operations, which the Court deemed not credible regarding service of the

Writ of Summons, where it was served, and to whom it was served. After the hearing, the Court




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denied both the Motion to Stay Execution and the Petition to Strike or Open the Default

JUQ!;;ment. Orders Entered by J. Tucker (12110/2013).


       On December 11, 2013, Appellant appealed the denial of its Petition to Strike or Open

the Default Judgment to the Superior Court. Appeal to Superior Court (12/1112013). The Court

ordered Appellant to file a Concise Statement of Matters Complained of on Appeal pursuant to

Pa. R.A.P. 1925(b) ("1925(b) Statement"). Order Entered by J. Tucker (1211112013), docketed

(12/12/2013). On December 18,2013, Appellant timely filed its 1925(b) Statement and now

alleges the following errors committed by this Court, verbatim:


       I. Where it is clear from the face of the record and where it is undisputed and
          acknowledged that the plaintiff-appellee, Felicia Pierce ("Pierce"),
          prematurely served her Pa.P.C.P. 237.5 'Important Notice' of the plaintiffs
          intention to enter a default judgment against CPR- one day prior to the
          expiration of CPR's twenty-day period to answer or otherwise respond to the
          plaintiffs Complaint, in violation of Pa.R.C.P. 237.I(a)(2) by operation of
          Pa.R.C.P. 106- the trial court committed an error of law by denying CPR's
          Petition to Strike the Judgment.

       2. Where Pierce failed to offer evidence or otherwise establish that plaintiffs
          Writ of Summons was served upon either (1) an executive officer, partner or
          trustee of the company, (2) a manager, clerk or other person in charge, or (3)
          an authorized agent for service of process of CPR in compliance with
          Pa.R.C.P. 424, and the process server admitted that he did not inquire or know
          the job position of the individual upon whom service was made, the trial court
          committed an error of law by denying CPR's Petition to Strike the Judgment.


       3. Where CPR timely asserted its meritorious defense of release and double
          recovery by the plaintiff, in light of the successful resolution of her prior
          lawsuit involving the same subject matter (Pierce v. Allstate Property &
          Casualty Insurance, Pa. Com. PI. Phila. Cty., Case NO. 111102173), the trial
          court abused its discretion in denying CPR's Petition to Open the Judgment.

       4. Where CPR timely asserted its meritorious defense of the gist of the action
          doctrine, given that the parties' relationship was governed by contract and the
          arbitration award was based on claims of negligence, the trial court abused its
          discretion in denying CPR's Petition to Open the Judgment.


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         5. Where CPR timely asserted its meritorious defense of limitation of liability,
            given that the contract at issue expressly limited CPR's liability to, at most,
            the amount paid to CPR (i.e., $ 25,932.19), the trial court abused its discretion
            in denying CPR's Petition to Open Judgment in the amount of$48,111.58.

         6. Where CPR timely asserted its meritorious defense of judicial estoppel, in
            light of Pierce's prior representation to the Court in a prior lawsuit that there
            was no defense for the insurer's non-payment of CPR's invoices, she is barred
            from asserting in the present lawsuit that CPR should not be paid and, thus,
            the trial court abused its discretion in denying CPR's Petition to Open the
            Judgment.

         7. Where CPR was responsible for assisting Pierce in retaining counsel to
            present a claim against Allstate, was prepared to testify on her behalf and was
            subsequently informed that her litigation was settled, the trial court erred in
            failing to find a justifiable excuse for CPR not recognizing that there was a
            separate claim against CPR which required a response.


1925(b) Statement (12/18/2013). A discussion ensues.


   II.      Legal analysis

         A. The Court properly denied Appellant's Petition to Strike the Default
            Judgment because there were no fatal defects in the record.


         A petition to strike is a common law proceeding and operates as a demurrer to the record.

Master Homecraft Co. v. Zimmerman, 222 A.2d 440, 442 (Pa. Super. Ct. 1966). Thus, a petition

to strike a judgment will not be granted unless a. fatal defect in the judgment appears on the face

of the record. A court may only look at the facts of record at the time judgment was entered to

decide if the record supports the judgment. Erie Ins. Co. v. Bullard, 839 A.2d 383, 386 (Pa.

Super. Ct. 2003). Before this Court Appellant asserted that there were two such defects: (1) the

Writ of Summons was served on a low-level employee who lacked the authority to accept

service; and (2) Appellant sent her Ten-Day Notice of intention to enter default judgment one




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day premature. The Court found both of these alleged defects to be without merit under the

cirlo..anstances herein.


        1. Service of the Writ of Summons

        Pursuant to Pa.R.C.P. 424, original service of process on a corporation or similar entity

must be made on (1) an executive officer, partner, or trustee of the company, (2) a manager,

clerk or other person in charge, or (3) an authorized agent for service of process.

        Here, the Court found that service of the Writ of Summons complied with Pa.R.C.P. 424.

Appellee presented testimony from the process server that upon entering Appellant's premises,

he confirmed that it was in fact Appellant's place of business. N.T. (12110/2013) at 14. He then

established that the person there was an agent of Appellant. Id. at 18. The process server then

stated that he had legal papers to serve on Appellant. Id. at 14. The agent of Appellant then

accepted the documents without any indication that he lacked such authority. He did not state

that he could not accept them. He did not call for a manager or supervisor. Id. at 15.

        Moreover, the Court found that the testimony of Appellant's witness, Appellant's Vice

President of Operations, was self-serving and lacked credibility. Id. at 40-51. First, on cross-

examination, Appellant's witness attempted to misconstrue the facts already in evidence by

stating that service of the Writ of Summons occurred in the parking lot. Id. at 44-45. The

process server clearly stated that he entered Appellant's premises; there was no mention of a

parking lot. Id. at 14.    Second, Appellant's witness testified that the agent who accepted service

was no longer employed by Appellant, and Appellant made no attempt to have the former

employee come to court to corroborate its witness' testimony that he lacked authority to accept

service. Id. at 45-46. Third, Appellant's witness, Appellant's second in command, testified that

he had no knowledge of the instant action until the Sheriff came to Appellant's premises despite


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the fact that Appellee alleged that it mailed the Complaint to Appellant's place of business,
       i
wh,~ri     the witness confirmed is the correct address for Appellant, and the docket reflects tha. (he

Court of Common Pleas sent notice of the default judgment and arbitration award to the same

address pursuant to Pa.R.CP. 236 and 1307. Id. at 42-43,46-48; Judgment Entered by Default

(05103/2013); Award of Arbitrators (08/19/2013). Such testimony coupled with the demeanor of

Appellant's witness, diminished the credibility of Appellant's witness in the eyes of the Court

leading the Court to find that service was properly made upon Appellant pursuant to Pa.R.CP'

424.

           2. The Ten-Day Notice


           In its Petition to Strike or Open the Default Judgment, Appellant asserted that Appellee

sent the Ten-Day Notice of intention to enter default judgment one day too soon and that the

prematurity was a fatal defect in the record warranting that the default judgment be stricken.

However, the Court found this assertion without merit.


           Appellee alleged, and Appellant did not contest, that she mailed the Complaint to

Appellant on March 25, 2013. Pursuant to Pa.R.CP. 1026, Appellant had twenty (20) days

thereafter to answer the Complaint; that date was April 14, 2013, a Sunday. By operation of

Pa.R.CP. 106(b), Appellant had until Monday, April 15, 2013 to answer. Appellee alleged, and

Appellant did not contest, that she mailed the Ten-Day Notice on April 15, 2013. According to

Appellant, Appellee should have waited until the April 16, 2013 to mail the notice. The default

judgment was entered on May 3, 2013, eighteen (18) days after Appellee mailed the Ten-Day

Notice and Appellant defaulted by failing to answer the Complaint.




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         Pursuant to Pa.R.CP. 237. 1 (a)(2)(U), written notice of intention to enter default

jUQ~alent must be mailed or delivered after failure to plead to a complaint and at least ten uays

prior to the filing of the praecipe to the party against whom judgment is to be entered. Failure to

comply with Pa.R.CP. 237.1 renders the subsequent default judgment void ab initio and is

grounds for striking a default judgment. Bullard, 839 A.2d 383; Acre v. Navy Brand Mfg. Co.,

571 A.2d 466,469 (Pa. Super. Ct. I 990)(striking default judgment that was entered on the eighth

day after the Ten-Day Notice was sent). Pennsylvania courts disfavor default judgments taken

quickly after the expiration of the answer's due date. Slott v. Triad Distributors, Inc" 327 A.2d

151,152 (Pa. Super. Ct. 1974).


         Here, the Court found that Appellant was in default; Appellant failed to answer the

Complaint within twenty (20) days after service of thereof. Appellee sent the Ten-Day Notice of

intention to enter default judgment and then proceeded to wait eighteen (18) days, eight (8)

additional days more than the rule requires, thereafter to file the praecipe. Appellee did not rush

to take a default judgment; she waited eighteen days.        Appellee sent the Ten-Day Notice

pursuant to Pa.R.CP. 237.1 and did not prematurely file the praecipe for entry of default

judgment.


         If Appellant filed its answer, on April 15, 2013, which would have been timely, or at any

time between the sending of the Ten-Day Notice and the filing of the praecipe to enter default

judgment, it would have barred the entry of default judgment. Vision Servo Plan of Pennsylvania

V.   Pennsylvania AFSCME Health & Welfare Fund, 474 A.2d 339, 341 (Pa. Super. Ct. 1984). To

preclude entry of default judgment, Appellant had a total of thirty-eight (38) days to answer the

Complaint from the time the Complaint was served. Therefore, because this Court did not find



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any fatal defects in the record, it properly denied Appellant's Petition to Strike the Default

JU"6ment.


       B. The Court properly denied Appellant's Petition to Open the default judgment
            because Appellant failed the tripartite test.

        Default judgments were designed to "prevent a dilatory defendant from impeding the

plaintiff s efforts to establish a claim." Raymond J. Brusco Funeral Home v. Sicilia, 419 A.2d

688,692 (Pa. Super. Ct. 1980). Accordingly, a petition to open default judgment is an appeal to

the equitable powers of the Court. Schultz v. Erie Ins. Exchange, 477 A.2d 471, 472 (Pa. 1984).

A Court may only open a default judgment where: (I) the petition has been promptly filed; (2)

the default is reasonably explained; and (3) a meritorious defense is shown. Brusco, 419 A.2d at

689. All three (3) elements must be present before the Court may open a default judgment. Id


       Regarding the first prong of the tripartite test, whether the petition has been promptly

filed, a court does not employ a bright line test, but rather looks to two factors: "(I) the length of

the delay between discovery of the entry of a default judgment and filing the petition to open

judgment, and (2) the reason for the delay." Allegheny Hydro No. I v. Am. Line Builders, Inc.,

722 A.2d 189, 193 (Pa. Super. Ct. 1998)(internal citations omitted).        The Superior Court has

held that delays as short as twenty-one (21) days after the discovery of the default judgment as

not prompt enough to merit opening the judgment. B. C. Y., Inc., Equip. Leasing Associates v.

Bukovich, 390 A.2d 276, 278 (Pa. Super. Ct. 1978). Generally, in the cases where the Superior

Court found there was a prompt filing of the petition, the period of delay was generally less than

one month. Allegheny Hydro No.1, 722 A.2d at 193 (internal citations omitted).


       Assuming, arguendo, that service of the Writ of Summons and the Complaint were

defective, Appellant knew or should have known of the default judgment shortly after it was

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entered. The docket reflects that on May 3, 2013, the Court of Common Pleas mailed notice of

en,.:' of default judgment to Appellant at its address of record, which Appellant's Wiu,ess

confirmed is Appellant's address. N.T. at 46. Appellant knew or should have known of the

default judgment shortly after May 3, 2013, yet it did not petition to open the default judgment

until November 22, 2013, more than six (6) months later. On the same note, on August 19,2013,

the Court of Common Pleas sent notice of the Arbitration Award to the same address, more than

three (3) months before Appellant filed its Petition. In light of the Court of Common Pleas

docket and the overall lack of credibility of Appellant's witness, the Court did not find the

witness' testimony that he only learned of the default judgment when the Sheriff arrived at

Appellant's premises; Appellant knew or should of known of the default judgment at least six (6)

months prior.   As an explanation for the approximately six (6) month delay,. all Appellant

provided was that it was confused by Appellee's other lawsuit. N.T. (12/10/2013) at 5.

Therefore, the Court properly found that Appellant did not act promptly in petitioning to open

the default judgment.


       Appellant failed the second prong of the tripartite test because it did not provide a

reasonable explanation for the default. Myers v. Wells Fargo Bank, NA., 986 A,2d 171, 176-178

(Pa. Super. Ct. 2009). While an "oversight, an unintentional omission to act, or a mistake of the

rights and duties of the appellant" may warrant the opening of a default judgment under the

second prong of the tripartite test, such assertions must be reasonable. Jd. Indeed, an appellant

must provide a "justifiable" explanation for his failure to respond to the complaint in a timely

manner under the second prong of the tripartite test. McFarland v. Whitham, 544 A,2d 929, 930

(Pa. 1988). Appellant's explanation for the default was that it was confused by Appellee's other

lawsuit and assumed that it did not need to act because that lawsuit settled. N. T. (12/10/2013) at


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5. Appellant was duly served with the Writ of Summons and the Complaint for the instant action
     ,
an" .lamed as a defendant; it is unreasonable and incredible for Appellant to confuse the ihu,ant

action with another in which it was subpoenaed as a witness.


          Because Appellant did not satisfY the first two prongs of the test to open a default

judgment, the Court properly denied Appellant's Petition regardless of whether it pled a

meritorious defense.


   III.      Conclusion


          The Court did not err in denying Appellant's Petition to Strike or Open the Default

Judgment.      First, there were no fatal defects in the record to require striking the default

judgment.     The Writ of Summons was properly served upon an agent of Appellant's and

Appellee did not send the Ten-Day Notice prematurely. Second, the Court properly refused to

open the default judgment because I) the petition was not promptly filed and 2) Appellant failed

to demonstrate a reasonable excuse for failing to answer Appellee's Complaint.           Because

Appellant's Petition was untimely without a reasonable explanation for the default, the Court

properly denied Appellant's Petition regardless of whether Appellant raised a meritorious

defense. Therefore, this Court's ruling should stand.




                                                           LEON W.    TuckR, J.


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