J-S85034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM PARKER                                  IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

BARRY JOHNSON D/B/A FAB 5
ENTERTAINMENT, LLC

                         Appellant                 No. 1068 WDA 2017


                     Appeal from the Order June 30, 2017
              In the Court of Common Pleas of Allegheny County
                      Civil Division at No: GD 15-009524

BEFORE: BOWES, PANELLA, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                           FILED MAY 31, 2018

     Appellant, Barry Johnson d/b/a Fab 5 Entertainment, LLC, appeals from

an order denying his motion to strike the judgment against him in the above

case. We affirm.

     This is Appellant’s second appeal to this Court. The underlying action

began in May 2015, when Appellee, William Parker, sued Appellant for tortious

interference with contractual relations with regard to a signed management

agreement with a third party recording artist. Appellee initiated the case by

writ of summons. On June 10 and 11, 2015, the Allegheny County Sheriff

attempted without success to serve Appellant with process at his official

business address in Pittsburgh. On March 15, 2016, Appellee reissued the

writ of summons, and on the same date, Appellee served Appellant by
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personal service in Austin, Texas using the Travis County Constable. Both

Appellant and his attorney requested Appellee to file and serve a civil

complaint. On May 12, 2016, Appellee filed a complaint and sent a copy to

Appellant and his counsel. Appellant did not file an answer to the complaint.

      On June 21, 2016, Appellee sent a ten-day notice of intent to enter

judgment by default to Appellant's counsel. Six days later, Appellant’s counsel

demanded that Appellee withdraw his suit. On July 7, 2016, Appellee filed a

praecipe for default judgment.

      On August 30, 2016, Appellant filed a petition to strike or open

judgment. On September 16, 2016, the trial court denied Appellant’s petition.

On October 13, 2016, Appellant appealed to this Court.

      In a memorandum entered on April 20, 2017, this Court affirmed the

order denying Appellant’s petition. We reasoned:

      In his Petition to Strike the Default Judgment, Appellant claimed
      that the Judgment against him was void because Appellee did not
      properly serve him with the Writ of Summons or the Complaint.
      The trial court rejected this claim, finding that Appell[ant]
      requested service of the Complaint by email, and in doing so,
      agreed to service by electronic means pursuant to Pa.R.C.P. No.
      205.4(g).

      Dissatisfied by this result, Appellant filed a Notice of Appeal and
      court-ordered Rule 1925(b) Statement. In his Rule 1925(b)
      Statement, Appellant challenged the trial court's conclusion with
      respect to Appellant's Pa.R.C.P. No., 402 service of process, and,
      for the first time, raised a challenge to the propriety of
      Appellee's Rule 237.1 Notice of Intent to Enter Default Judgment.
      In his Brief to this Court, Appellant has abandoned his claim of
      error regarding Rule 402 service of process; instead he argues
      only that the court erred in finding that Appellee provided him with
      237.1 Notice prior to filing a Praecipe to Enter Default Judgment.

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      Because Appellant raised this issue for the first time in his Rule
      1925(b) statement, it is waived. Appellant is, thus, not entitled
      to relief.

Parker v. Johnson, 1564 WDA 2017, at 4-5 (Pa. Super., Apr. 20, 2017)

(“Parker I”) (emphasis in original).

      On June 13, 2017, Appellant filed a second petition to strike or open

judgment in the trial court.    On June 30, 2017, the trial court denied the

petition on the basis of res judicata and collateral estoppel. On July 25, 2017,

Appellant filed a notice of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal: “Whether the Pa.R.C.P.

important notice must be served on a party and any attorney of record for the

prothonotary to have the power to enter a default judgment?” Appellant’s

Brief at 4. This presents us with a question of law for which our standard of

review is de novo and our scope of review is plenary. Skonieczny v. Cooper,

37 A.3d 1211, 1213 (Pa. Super. 2012).

      In this appeal, Appellant argues that the trial court erred in denying his

petition to strike the judgment. He does not contend that the trial court should

have opened the judgment. Accordingly, we limit our review to whether the

trial court erred in denying Appellant’s petition to strike. “A petition to strike

a judgment operates as a demurrer to the record, and must be granted

whenever some fatal defect appears on the face of the record.” First Union

Nat. Bank v. Portside Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa.


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J-S85034-17


Super. 2003). “When deciding if there are fatal defects on the face of the

record for the purposes of a petition to strike a judgment, a court may only

look at what was in the record when the judgment was entered.”             Cintas

Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 917 (Pa. 1997).

Importantly, “[a] petition to strike does not involve the discretion of the [trial]

court.” Id. at 919.

      We hold that the trial court properly denied Appellant’s second petition

to strike, albeit on a different basis than the trial court. Wilson v. Plumstead

Tp. Zoning Hearing Bd., 936 A.2d 1061, 1065 n.3 (Pa. 2007) (appellate

court “may affirm on any ground”).

      The trial court incorrectly denied Appellant’s second petition to strike on

the basis of res judicata and collateral estoppel. These doctrines “apply to bar

relitigation of claims or issues in a subsequent action that were subject to a

final judgment in a prior action.” Pollock v. National Football League,

171 A.3d 773, 781 (Pa. Super. 2017) (emphasis added). Instead, the trial

court should have denied Appellant’s second petition based on the law of the

case doctrine, which “exists to prevent a party from relitigating claims or

issues that have been resolved previously within the same action, either in

a prior appeal or by a judge of coordinate jurisdiction.” Id. (emphasis added).

In Appellant’s first appeal, we held that he waived his argument that Appellee

failed to serve him with a Rule 237.1 ten-day notice of intent to enter a default

judgment.    Parker I, at 4-5.     Since we resolved the ten-day notice issue


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against Appellant in Parker I, he cannot raise it again in his second petition

to strike (or in this appeal).

       Even assuming Appellant could raise this issue again, it is devoid of

merit. Nothing on the face of the record at the time of entry of the default

judgment indicates that Appellee failed to serve the ten-day notice on

Appellant.    For these reasons, the trial court properly denied Appellant’s

second motion to strike judgment.1

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2018




____________________________________________


1  Appellee requests that we sanction Appellant under Pa.R.A.P. 2744 for
dilatory conduct in taking this appeal. We decline to impose sanctions, but
we warn Appellant that any additional dilatory conduct might warrant
sanctions.

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