J-A18010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DUTCHESS QUARRY & SUPPLY CO., INC.,                   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                               Appellant

                          v.

LONGVIEW CONSTRUCTION, LLC,

                               Appellee                   No. 1761 MDA 2015


                 Appeal from the Order Entered September 22, 2015
                   In the Court of Common Pleas of Berks County
                           Civil Division at No(s): 15-15040


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED OCTOBER 18, 2016

        Appellant, Dutchess Quarry & Supply Co., Inc., appeals from the

September 22, 2015 order opening and striking a foreign judgment against

Appellee, Longview Construction, LLC (“Longview”). After careful review, we

vacate     the    order    and   remand    for   proceedings   consistent   with   this

memorandum.

        On March 19, 2013, Appellant filed a Complaint against Longview in

the Supreme Court of New York, Dutchess County.                Appellant’s Brief at 2.

The complaint was served on Longview on April 3, 2013, and again on April

17, 2013.        Id.   After Longview failed to file an answer to the complaint,

Appellant petitioned for judgment. On July 23, 2013, default judgment was

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*
    Former Justice specially assigned to the Superior Court.
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entered by the Supreme Court of New York in favor of Appellant and against

Longview. Id. at 3.

       The subsequent procedural history of this case was summarized by the

trial court in its Pa.R.A.P. 1925(a) opinion:

             On July 14, 2015, [Appellant] filed with the Berks County
       Prothonotary a Praecipe for Registration of Foreign Judgment
       pursuant to the Uniform Enforcement of Foreign Judgments Act.
       The praecipe indicated … that the judgment amount was
       $184,601.77, not including costs of litigation and attorney’s fees,
       which were recorded for $1,374.25.
                                      …

             On July 23, 2015, [Longview], by way of attorney Nicole
       Plank, Esquire, filed a Petition to Open/Strike Default Judgment
       in Berks County, Pennsylvania, alleging that when the default
       judgment was entered in the state of New York, the parties were
       attempting to “reconcile this matter”. [Longview] further alleged
       that it had a valid defense to the underlying lawsuit.
       Specifically, [Longview] alleged that it “never ordered any
       construction materials from [Appellant] between July 2011 and
       October 2011, and never received any construction materials
       from [Appellant] between July 2011 and October 2011.”

              On August 11, 2015, the trial court entered a rule to show
       cause order on [Appellant] and scheduled argument on
       questions of law for September 16, 2015. On September 2,
       2015, [Appellant] filed an answer and new matter to
       [Longview’s] petition, denying that [Longview] had a meritorious
       defense. On September 18, 2015, following argument on the
       petition, the court entered an order, striking off the default
       judgment.[1]

Trial Court Opinion (TCO), 2/8/16, at 2.
____________________________________________


1
  The order opening and striking the judgment against Longview is dated
September 18, 2015, but was entered on the docket on September 22,
2015. Thus, the order is referred to herein as the “September 22, 2015
Order.”



                                           -2-
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       On October 7, 2015, Appellant filed a timely notice of appeal followed

by a timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.2          Herein, Appellant presents the following sole

issue for our review: “Did the trial court err when it opened and struck the

New York Judgment at issue in this matter, via its September 22, 2015

Order as later explained by its Opinion of February 8, 2016?”         Appellant’s

Brief at 2.

       It is unclear in light of the record before us whether the court intended

to “open” or “strike” the default judgment. The September 22, 2015 Order

states that the judgment shall be “opened and stricken,” but the court’s Rule

1925(a) opinion merely addresses the merits for “opening” a judgment. It is

well-settled under Pennsylvania law that opening a default judgment and

striking a default judgment are two distinct remedies, and that the two are

generally not interchangeable. Green Acres Rehabilitation and Nursing

Center v. Sullivan, 113 A.3d 1261, 1270 (Pa. Super. 2015).

       For purposes of this appeal, the distinction between these two

dispositions is vital, because it impacts our ability to review this matter.

       Our Court may reach the merits of an appeal taken from (1) a
       final order or an order certified as a final order; (2) an
____________________________________________


2
  Longview filed a motion to quash the appeal, arguing that the order being
appealed is interlocutory and not appealable. On December 1, 2015, this
Court entered an order denying the motion without prejudice to Longview’s
right to again raise the issue presented in the motion before the merits
panel.



                                           -3-
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      interlocutory order appealable as of right; (3) an interlocutory
      order appealable by permission, or (4) a collateral order. As a
      general rule, only final orders are appealable, and final orders
      are defined as orders disposing of all claims and all parties.

In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012)

(internal citations and quotation marks omitted). “[I]t is well-settled that an

appeal from a trial court’s order granting a petition to open judgment is

interlocutory.” Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d

474, 478 n.4 (Pa. Super. 2014). However, an appeal may lie from an order

striking a default judgment. See United Parcel Service v. Hohider, 954

A.2d 13, 16 (Pa. Super. 2008) (concluding that where an order striking a

default judgment ends the litigation as to all parties and all claims as it

necessitates the filing of a new, separate civil action, it is a final order

pursuant to Pa.R.A.P. 341(b) and an appeal may be taken as of right).

      Based on the record before us, we are unable to make a determination

as to whether the trial court intended to open or strike the judgment.       It

would also be premature for this Court to determine if an order striking

judgment in this case is final and appealable under the rationale in Hohider.

Accordingly, we vacate the September 22, 2015 Order and remand for the

trial court to issue a new order clearly indicating whether it is granting

Longview’s petition to open or strike the default judgment. If the order is

revised to strike the default judgment, and Appellant again files a timely

appeal, the court must issue a new 1925(a) opinion discussing the finality of

the order and the rationale underlying its decision to strike.



                                     -4-
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     Order vacated. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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