J-S60017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSQUEHANNA BANK, SUCCESSOR BY                 IN THE SUPERIOR COURT OF
MERGER COMMUNITY BANKS                               PENNSYLVANIA

                        Appellee

                   v.

LAURA E. COOPER A/K/A LAURA
ELIZABETH LONG A/K/A LARA
ELIZABETH COOPER A/K/A LAURA E.
LONG

                        Appellant                   No. 271 MDA 2014


              Appeal from the Order entered January 10, 2014
               In the Court of Common Pleas of Berks County
                        Civil Division at No: 12-2302


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                       FILED JANUARY 13, 2015

     Laura Cooper appeals from an order denying her petition to strike or

open a judgment entered against her and in favor of Appellee, Susquehanna

Bank, s/b/m/t Community Banks (Bank). Upon review, we affirm.

     On February 10, 2012, the Bank filed a civil action against Appellant,

alleging she defaulted on a promissory note that secured a mortgage on her

former home located at 65 Woodland Manor Drive, Mohnton, Berks County

(the Mohnton address).     The Bank was unable to successfully serve the

complaint on Appellant at the Mohnton address, so it requested leave of

court to effect special service. The trial court granted the Bank’s motion for

service by mail to, and posting of, the Mohnton address.     Later, the Bank
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also served Appellant at her business address, 505 Penn Street, Floor 14,

Reading, Berks County (the Reading address). Appellant, who is an active

Pennsylvania attorney, filed a pro se answer to the complaint. She did not

endorse the answer with her address and telephone number, nor did she

serve the answer on the Bank’s counsel. Instead, Appellant mailed a copy of

the answer directly to the Bank.               Appellant later filed a “certification of

address” listing the Reading address as the address for service, but—like her

answer—did not serve it on counsel for the Bank.

        On September 6, 2012, the Bank moved for summary judgment. Per

the certificate of service, the Bank served the motion on Appellant at the

Mohnton address only.         On January 30, 2013, the trial court entered an

order granting the Bank’s motion for summary judgment for Appellant’s

failure to respond.1 On the same day, judgment in personam was entered

against Appellant.

        On October 10, 2013, Appellant petitioned to open or strike the

judgment. The trial court held a hearing on the petition, at which Appellant

testified that she never received the Bank’s motion for summary judgment.

On January 10, 2014, the trial court denied Appellant’s petition. Appellant

moved for reconsideration, attaching “two important documents” to the

motion.     Both documents were from a companion case in Berks County

____________________________________________


1
    The trial court’s order is erroneously dated January 30, 2012.



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involving the same plaintiff, defendant, and plaintiff’s counsel.      The first

document, an affidavit of non-military service, indicated that Appellant could

be served at the Reading address.              The second document, a return of

service, indicated that the resident of Appellant’s former house at the

Mohnton address gave Appellant’s business address as the Reading address.

The trial court denied reconsideration on February 24, 2014.              In the

meantime, Appellant filed a timely appeal.2

       Appellant raises three arguments before this Court:

       1. Did the [trial] court err in making the legal determination that
          a defendant’s failure to notify plaintiff’s counsel of a servable
          address in that docket number permits the plaintiff to
          effectuate “good service” on defendant by mailing pleadings
          to the defendant’s former residential address when plaintiff
          knows that defendant no longer resides there?

       2. Did the trial court err in denying the defendant/appellant’s
          motion to open/strike the judgement [sic] given that there
          was a clear [sic] and unequivocal evidence of record that the
          sheriff made service on Laura Cooper at [the Reading
          address] in the companion case (11-4921) and that the same
          counsel filed a nonmilitary affidavit indicating that her address
          was [the Reading address]?

       3. Did [the trial court] err in applying a higher standard to a pro
          se defendant because that pro se defendant is licensed to
          practice law in the State of Pennsylvania?

Appellant’s Brief at 4.



____________________________________________


2
  A party may appeal of right from an interlocutory order refusing to open or
strike a judgment. Pa.R.A.P. 311(a)(1).



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       Initially, we note the judgment entered against Appellant is not a

default judgment. A litigant can obtain a default judgment if the opposing

party fails to respond to a pleading containing a notice to defend, see

Pa.R.C.P. Nos. 237.1(a), 1037(b), 3031, 3146, but here Appellant filed an

answer to the Bank’s complaint.            Rather, it is a judgment entered in a

contested matter because Appellant did not respond to the Bank’s summary

judgment motion.3

       Additionally, the parties have conflated the standards and scopes of

review applicable to striking and opening a judgment. Striking and opening

a judgment “are not interchangeable, and we often reaffirm the distinction

between them.” Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa. Super.

2004). A petition to strike a judgment operates as a demurrer to the record

and may be granted only for a fatal defect or irregularity appearing on the

face of the record. ANS Assocs., Inc. v. Gotham Ins. Co., 42 A.3d 1074,

1076 (Pa. Super. 2012).          In determining whether a fatal defect exists, a

court may look at only the record as it existed at the time of entry of

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3
  Rule 237.1(a)(1) defines “default judgment” as a judgment entered by
praecipe for (1) a defendant’s failure to file a responsive pleading to a
complaint in a civil action containing a notice to defend; (2) a defendant’s or
terre-tenant’s failure to plead in response to a writ of revival in a proceeding
to revive a judgment lien; or (3) a garnishee’s failure to answer
interrogatories in an action to enforce a money judgment.

In contrast, Rule 1035.3(d) provides that the court may enter judgment
against a party who fails to respond to a summary judgment motion.



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judgment. Id. This Court reviews the refusal to strike a judgment for an

error of law, since the trial court’s decision does not call for the exercise of

discretion. Graziani, 856 A.2d at 1223 (quotation omitted).

      In contrast, a petition to open a judgment is an appeal to the court’s

equitable powers. Id. In considering a petition to open, the trial court may

consider matters outside of the record at the time of entry of judgment.

Aquilino v. Phila. Catholic Archdiocese, 884 A.2d 1269, 1283 (Pa. Super.

2005). A court’s authority to open judgments entered in contested matters

is more circumscribed than its ability to open judgments entered by default

or confession.   Simpson v. Allstate Ins. Co., 504 A.2d 335, 337 (Pa.

Super. 1986) (en banc).      In this case, Appellant did not file an appeal,

because she claimed to be unaware of the granting of summary judgment.

Rather, she collaterally attacked the judgment by filing a petition to open or

strike.   “Generally, judgments regularly entered in adverse proceedings

cannot be opened or vacated after they have become final, unless there has

been fraud or some other circumstance ‘so grave or compelling as to

constitute “extraordinary cause” justifying intervention by the court.’”    Id.

(quoting Klugman v. Gimble Bros., Inc., 182 A.2d 223, 225 (Pa. Super.

1962)).   “Extraordinary cause ‘is generally an oversight or action on the

part of the court or the judicial process which operates to deny the

losing party knowledge of the entry of final judgment so that the

commencement of the running of the appeal time is not known to the losing

party.’” Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222, 1225 n.4

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(Pa. Super. 2002) (quoting Luckenbaugh v. Shearer, 523 A.2d 399, 402

(Pa. Super. 1987) (en banc)) (emphasis added).        We review a refusal to

open a judgment for an abuse of discretion.      Graziani, 856 A.2d at 1223

(quotation omitted).

      We note that service of the complaint at the Mohnton address is not at

issue. Appellant waived any defects in service of original process by filing an

answer instead of preliminary objections.     “A party who fails to object to

service of process in preliminary objections waives that claim.”     Silver v.

Thompson, 26 A.3d 514, 517 n.6 (Pa. Super. 2011); see also Pa.R.C.P.

No. 1032(a).

      In her first argument, Appellant contends service of the summary

judgment motion only at the Mohnton address constitutes grounds to strike

or open the judgment. We hold that the trial court did not err in denying

Appellant’s petition, because Appellant failed to establish grounds to strike

or open the judgment.

      Appellant has failed to show the existence of a fatal defect on the

record as it existed at the time of entry of judgment. The record shows that

the trial court granted the Bank’s petition for special service of original

process at the Mohnton address. The Bank served its motion for summary

judgment by mail to the Mohnton address. Thus, by court order, the Bank

was permitted to serve original process and any other legal papers on

Appellant at the Mohnton address, and it did.       “Service by mail of legal

papers other than original process is complete upon mailing.”        Pa.R.C.P.

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No. 440(b). Limited to the record, we must assume that Appellant received

the motion. That she actually did not receive it is outside of the record at

the time judgment was entered.     Therefore, no grounds exist on which to

strike the judgment.

     Additionally, the trial court did not abuse its discretion in refusing to

open the judgment. Summary judgment was entered based on Appellant’s

general, ineffective denials contained in her answer.    See Bank of Am.,

N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014) (“General denials

constitute admissions where—like here—specific denials are required.”).

Here, even if Appellant established extraordinary cause, she cannot establish

a meritorious defense to the summary judgment motion because of her

general denials in her answer to the complaint.   Cf. Myers v. Wells Fargo

Bank, N.A., 986 A.2d 171, 175-76 (Pa. Super. 2009). (noting that to open a

default judgment a party must (1) promptly file a petition to open, (2)

provide a reasonable excuse for not filing a responsive pleading, and (3) set

forth a meritorious defense). If Appellant could not meet the more liberal

test to open a default judgment, a fortiori, she cannot meet the more

stringent test of extraordinary cause to open a judgment entered in a

contested matter.

     We likewise find no merit to Appellant’s second argument regarding

the documents attached to her motion for reconsideration. Items presented

for the first time in a motion for reconsideration are not properly preserved

for appeal. Rabatin v. Allied Glove Corp., 24 A.3d 388, 391 (Pa. Super.

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2011) (noting that “issues raised in motions for reconsideration are beyond

the jurisdiction of this Court and thus may not be considered by this Court

on appeal”); see also Kelly v. Siuma, 34 A.3d 86, 94 n.8 (Pa. Super.

2011) (ruling the trial court properly refused to consider new evidence raised

for the first time in a motion for reconsideration).   Moreover, a motion to

reconsider is designed to request reassessment based on the law—not to

allow a party to proffer an untimely supplemental record. Paparelli v. GAF

Corp., 549 A.2d 597, 599 n.2 (Pa. Super. 1988). Here, Appellant proffered

for the first time the affidavit and sheriff’s return with her motion for

reconsideration.      The items were not properly before the trial court.4

Therefore, we cannot consider any claim of error founded on those

documents.

       Similarly, we find no merit to Appellant’s third argument that she was

improperly held to a higher standard than non-lawyer pro se litigants. The

same standards apply to counseled and unrepresented litigants.             See

Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super. 2004). Even non-lawyer

pro se litigants must comply with procedural rules. Id. Moreover, the trial

court did not err in considering Appellant’s status as an attorney in denying

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4
  Indeed, the trial court’s denial of reconsideration is a legal nullity. The
order was entered on February 24, 2014, i.e., after the time to appeal
expired. A trial court cannot grant reconsideration if it fails to file an order
expressly granting reconsideration within the time for filing an appeal. See
Pa.R.A.P. 1701(b)(3)(ii).



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her petition insofar as she sought to open the judgment. A petition to open

is addressed to the equitable powers of a trial court. Myers, 986 A.2d at

175.    As an attorney, Appellant should have been aware of applicable

procedural rules, i.e., the requirements to endorse pleadings and serve them

on counsel who represents an opposing party.      See Pa.R.C.P. Nos. 1025,

440(a)(1).     Thus, Appellant is responsible for not receiving the Bank’s

motion for summary judgment, due to her failure to comply with procedural

rules that require she endorse all pleadings and legal papers with an address

where all such documents may be served.5

       In sum, the trial court did not commit an error of law in refusing to

strike the judgment, and it did not commit an abuse of discretion in refusing

to open the judgment. Accordingly, we affirm the order denying Appellant’s

petition to open or strike.

       Order affirmed.

       Judge Ott joins the memorandum.


____________________________________________


5
   Wink v. Magrowski, 10 Pa. D. & C.5th 410 (C.P. Berks 2009), aff’d, 4
A.3d 699 (Pa. Super.) (unpublished memorandum), vacated per curiam, 9
A.3d 1137 (Pa. 2010), cited for the proposition that the trial court erred in
finding fault with Appellant’s failure to comply with applicable procedural
rules, is irrelevant. In that case, our Supreme Court merely reaffirmed that
a timely-filed petition to open judgment meets per se the first two
requirements to open a judgment. Wink, 9 A.3d at 1137 (citing Pa.R.C.P.
No. 237(b)). Additionally, the Supreme Court’s order is not binding on this
Court. See Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2013)
(“[P]er curiam orders have no stare decisis effect.”).



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     Judge Jenkins files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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