J-A19009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELISEO-THL MOTORSPORTS, LLC, A                 IN THE SUPERIOR COURT OF
PENNSYLVANIA LIMITED LIABILITY                       PENNSYLVANIA
COMPANY,

                        Appellee

                   v.

ELISEO SALAZAR, INDIVIDUALLY AND
T/D/B/A ELISEO SALAZAR RACING, INC.,
SALAZAR RACING INC. AND SALAZAR
RACING; KARI MARCINIAK AN
INDIVIDUAL; ELISEO SALAZAR RACING,
INC., A FLORIDA CORPORATION,
INDIVIDUALLY AND T/D/B/A SALAZAR
RACING, INC., AND SALAZAR RACING;
ELISEO SALAZAR RACING, INC., A
PENNSYLVANIA CORPORATION,
INDIVIDUALLY AND T/D/B/A SALAZAR
RACING, INC., AND SALAZAR RACING,
AND SALAZAR RACING, INC., A
PENNSYLVANIA CORPORATION; AND
SALAZAR RACING, AN UNREGISTERED
FICTITIOUS NAME,

                        Appellants                 No. 1718 WDA 2013


             Appeal from the Order Entered October 21, 2013
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 13-007243


BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 06, 2014

     Appellants, Eliseo Salazar, individually and t/d/b/a Eliseo Salazar

Racing, Inc., et al., appeal from the order entered on October 21, 2013,




* Former Justice specially assigned to the Superior Court.
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     On May 15, 2013, Eliseo-



claims including breach of contract, fraud, and conversion.       Appellants did

not file a responsive pleading to the complaint.        Therefore, on June 12,

2013, THL Motorsports served the individual Appellants with notices of

intention to file a praecipe for entry of default judgment, pursuant to

Pennsylvania Rule of Civil Procedure 237.1. See                          Praecipe

to Enter Default

     On June 26, 2013       after Appellants had still failed to file a responsive

pleading to the complaint     THL Motorsports filed, in the Allegheny County

                                                              praecipe to enter

default judgment against all Appellants.      Id. at 2.    That same day, THL

Motorsports served the individual Appellants with the praecipe to enter

default judgment. Id. at 4-5.

     On June 26, 2013, the ACDCR entered default judgment in favor of

THL Motorsports and against the individual Appellants, in accordance with

Pennsylvania Rule of Civil Procedure 1037(b). See Docket Entry, 6/26/13.

The next day, the ACDCR provided the individual Appellants with notices of

                                                       the docket the giving of



236(b). See Docket Entry, 6/26/13; see also                           Praecipe to

Enter Default Judgment, 6/26/13, at 1 (ACDCR wrote that notice was sent

on June 27, 2013).

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     On June 28, 2013, Appellants filed a petition to open the default

judgment. Within the body of the petition to open, Appellants declared that

the doctrines of res judicata and collateral estoppel acted to bar THL




at 1-4. Further, within the body of the petition to open, Appellants wrote



and intend to file the preliminary objections when the judge within [the

Commerce and Complex Litigation Center of the Allegheny County Court of

Common Plea                            Id. at 3 (some internal capitalization

omitted). However, Appellants did not attach the preliminary objections     or

any other responsive pleading     to the petition to open.     See Pa.R.C.P.

                                     judgment . . . of default . . . shall have

attached thereto a verified copy of . . . the answer which the petitioner



to assign [the] case to the commerce and complex litigation



irregularities. These included: 1) Appellants did not verify the petition to

open, see

which does not appear of r

had attached their proposed preliminary objections to the petition to open

(which they did not), Appellants did not even attempt to provide an

                                                                           the

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              see                               A defendant who seeks to file a

pleading other than an answer [with the petition to open] is not entitled to

the benefit of [Rule 237.3,] but must comply with the requirements of

Schultz v. Erie Insurance Exchange

Schultz                       A petition to open a judgment is addressed to

the equitable powers of the court and is a matter of judicial discretion. The

court will only exercise this discretion when (1) the petition has been

promptly filed; (2) a meritorious defense can be shown; and (3) the failure



      On July 5, 2013, the case was provisionally assigned to the Commerce

and Complex Litigation Center of the Allegheny County Court of Common




Appellants attempted to raise a number of grounds for relief, including that

                        s were barred by the doctrines of res judicata and

collateral estoppel and that the entire case was barred by the doctrine of lis

pendens                                                       -15.

      On July 31, 2013, the trial court issued a rule to show cause upon THL

Motorsports, as to why Appellants were not entitled to have the default

judgment opened.      THL Motorsports filed an answer to the petition and

averred that it was never a party to any underlying case        and, therefore,

that its claims against Appellants could not be barred by the doctrines of res

judicata, collateral estoppel, or lis pendens

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required that the petition be denied. Id. at 5.

      The trial court held oral argument on the petition and, on October 21,




                             on a number of independent grounds, including:

Appellants did not verify their petition to open; Appellants did not attach a

responsive pleading to their petition to open; and, even if Appellants had

attached their later-filed preliminary objections to the petition to open,




at 1-3.

      Appellants filed a timely notice of appeal and now raise the following

claims to this Court:


          to open default judgment where [] Appellants promptly filed
          the petition, presented a meritorious defense, and
          demonstrated an excusable reason for failing to file a
          responsive pleading?

          [2.] Did the trial court err, as a matter of law, in treating

          with respect to affirmative pleading obligations?

          [3.] Did the trial court err, as a matter of law, in considering
                                 praecipe for default judgment even
          though [] Appellants had filed preliminary objections in the
          nature of a demurrer prior to the trial court accepting the
          underlying case?



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J-A19009-14



                                                               1




        As our Supreme Court held in Schultz:            A petition to open a

judgment is addressed to the equitable powers of the court and is a matter

of judicial discretion.    The court will only exercise this discretion when (1)

the petition has been promptly filed; (2) a meritorious defense can be

shown; and (3) the failure to appear ca                      Schultz, 477 A.2d

at 472 (emphasis in original).



Judgment of Non Pros

                     Schultz. Rule 237.3 provides:

          (a) A petition for relief from a judgment of non pros or of
          default entered pursuant to Rule 237.1 shall have attached
          thereto a verified copy of the complaint or answer which the
          petitioner seeks leave to file.

          (b) If the petition 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.



change th
____________________________________________


1
    For ease of discussion, we have re-




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as specified by our Supreme Court in Schultz, are applicable to every

petition to open a default judgment.           Pa.R.C.P. 237.3 note.   The effect of

Rule 237.3 is simply that, when a party attaches a proposed answer to a

petition to open,2

such judgments by presupposing that a petition filed as provided by the rule

is timely and with reasonable explanation or legitimate excuse for the

inactivity or delay resulting in the entry of th                    Pa.R.C.P. 237.3

note.

        With respect to a petition to open, a careful reading of Rule 237.3

reveals that the rule only applies to instances where the defendant attaches

                                answer which the petitioner seeks leave to

Pa.R.C.P. 237.3(a) (emphasis added).             The note to the rule specifically

             A defendant who seeks to file a pleading other than an answer is

not entitled to the benefit of [Rule 237.3,] but must comply with the

requirements of Schultz         Pa.R.C.P. 237.3 note.

        Therefore, where the defendant files a petition to open and wishes to

file preliminary objections to the complaint, the defendant is not given the

                                                          suppl[y] two of the three

requisites for opening such judgments by presupposing that a petition filed

as provided by the rule is timely and with reasonable explanation or

____________________________________________


2
                                        the petition [be] filed within ten days after




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legitimate excuse for the inactivity or delay resulting in the entry of the

judgment.                                                re the defendant files a

petition to open and wishes to file preliminary objections to the complaint,

the defendant must plead       in his petition to open           the petition has

                                                                        Schultz,

477 A.2d at 472 (emphasis in original). The defendant must then attach, to

his petition to open, the proposed preliminary objections               and the



      In the case at bar, Appellants did not attach any proposed responsive

pleading to the petition to open. Rather, Appellants attached, to the petition

to open, an unresponsive motion

                                                                         al court



Appellants simply did not attach any proposed pleading which could have



this basis alone, Appellants

      We are cognizant of the fact that, on July 12, 2013, Appellants

attempted to file preliminary objections to the complaint.         However, this

filing occurred 16 days after the ACDCR entered default judgment against

Appellants. Therefore, in order for the proposed pleading to have had any



petition to open the default judgment. The trial court did not do so; thus,

the filing did not have any legal effect.

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      Further, even if Appellants had attached their proposed preliminary

objections to their petition to open, the trial court would have still been



to plead the necessary element

                                       Schultz, 477 A.2d 473.

      Finally, even if Appellants had attached their proposed preliminary

objections to their petition to open and even if Appellants had attempted to

ple

                                                                  still been



Appellants did not verify their petition to open; and, in the absence of a

verification, any attempt to plead the necessary factual and outside-the-



                                                        See Pa.R.C.P. 206.3



appear of record shall be verified).



judgment.

      Order affirmed.

      Justice Fitzgerald joins this memorandum.

      President Judge Emeritus Bender files a Dissenting Memorandum.




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J-A19009-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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