J-S74023-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

JOSEPH KNAPP AND DENNIS MILLER : IN THE SUPERIOR COURT OF
AND TEMPLE PLAY, LLC AND TMPLCF,
                               :      PENNSYLVANIA
LLC, AND MILSEV, LLC AND DEN   :
SEVENTH, LLC,                  :
                               :
               Appellees       :
                               :
          v.                   :
                               :
CITRO COMMUNICATIONS, INC. AND :
THOMAS R. CITRO,               :
                               :
               Appellants      : No. 711 EDA 2014

               Appeal from the Order entered February 10, 2014,
                 Court of Common Pleas, Philadelphia County,
                Civil Division at No. 110403352 April Term 2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                          FILED DECEMBER 18, 2014

      Citro   Communications,        Inc.   and   Thomas   R.   Citro   (collectively,

“Appellants”) appeal from the order of court denying their petition to open

judgments entered against them and in favor of Joseph Knapp, Dennis

Miller, Temple Play, LLC, TMPLCF, LLC and Den Seventh, LLC (collectively,

“Appellees”) in the Court of Common Pleas, Philadelphia County.                   For

reasons explained below, we affirm.

      The trial court summarized the relevant factual and procedural

histories in this case as follows:

                   On April 29, 2011[,] [Appellees] filed a
              complaint alleging breach of contract, fraud, and
              conversion seeking a total of $153,964.00 in
              damages. [Appellants] failed to answer Appellees[’]



*Retired Senior Judge assigned to the Superior Court.
J-S74023-14


            [c]omplaint. Appellants aver that they submitted
            Appellees’ claims to their liability insurance carrier on
            May 31, 2011. Appellees sent a notice of intention to
            take default judgment to Appellants on June 21,
            2011. Aside from submitting an insurance claim and
            attending     a   case     management        conference,
            Appellants took no action to respond to the litigation
            for nearly three years.

                  On August 11, 2011 a case management
            conference was held, which Appellants aver that they
            attended “pro se.” According to Appellants, an
            unnamed “case manager” indicated that the case
            would likely be dismissed. [H]owever, Appellants
            offered nothing to substantiate this claim. That same
            day, Appellees entered default judgment by praecipe
            against Citro Communications, Inc. Appellees
            subsequently entered default judgment against
            Thomas R. Citro on October 20, 2011, and aver that
            they domesticated their judgments to New Jersey in
            2013, thereafter obtaining a New Jersey court order
            compelling discovery in aid of execution. Appellants
            filed their Petition to Open Default Judgment on
            January 9, 2014, which was denied by this Court on
            February 10, 2014. Appellants filed the present
            appeal on February 18, 2014.

Trial Court Opinion, 3/21/14, at 1-2 (internal citations to documents of

record omitted).

      In their appeal, Appellants present two questions for our review:

            [1.] Did the trial court err in denying Appellant’s [sic]
            [p]etition to [o]pen [d]efault [j]udgment?

            [2.] Do equitable considerations require that
            Appellants receive an opportunity to have the case
            decided on the merits?

Appellants’ Brief at 2.




                                      -2-
J-S74023-14


      Our standard of review of orders denying a petition to open a default

judgment is well settled. This Court has previously explained that,

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

                                      ***

            An abuse of discretion is not a mere error of
            judgment, but if in reaching a conclusion, the law is
            overridden or misapplied, or the judgment exercised
            is manifestly unreasonable, or the result of partiality,
            prejudice, bias or ill will, as shown by the evidence
            or the record, discretion is abused.

Smith v. Morrell Beer Distribs., Inc., 29 A.3d 23, 25 (Pa. Super. 2011).

      In their first issue on appeal, Appellants argue that the trial court erred

in its application of the relevant test.      This test provides that “a default

judgment may be opened when the moving party establishes three

requirements: (1) a prompt filing of a petition to open the default judgment;

(2) a meritorious defense; and (3) a reasonable excuse or explanation for its

failure to file a responsive pleading.” Id.

      The trial court determined that Appellants failed to meet the first and

third prongs of the test.        See Trial Court Opinion, 3/21/14, at 2.

Considering the first prong, we note that

            [t]he timeliness of a petition to open a judgment is
            measured from the date that notice of the entry of
            the default judgment is received. The law does not



                                      -3-
J-S74023-14


            establish a specific time period within which a
            petition to open a judgment must be filed to qualify
            as timely. Instead, the court must consider the
            length of time between discovery of the entry of the
            default judgment and the reason for delay.

Kelly v. Siuma, 34 A.3d 86, 92 (Pa. Super. 2011). We further note that

historically, “[i]n cases where the appellate courts have found a ‘prompt’ and

timely filing of the petition to open a default judgment, the period of delay

has normally been less than one month.         Id. (citing Duckson v. Wee

Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993) (finding one day delay

timely); Alba v. Urology Assocs. of Kingston, 598 A.2d 57 (Pa. Super.

1991) (fourteen days is timely); Fink v. Gen. Accident Ins. Co., 594 A.2d

345 (Pa. Super. 1991) (period of five days is timely); US Bank N.A. v.

Mallory, 982 A.2d 986, 995 (Pa. Super. 2009)          (finding eighty-two day

delay was not timely); Myers v. Wells Fargo Bank, N.A., 986 A.2d 171

(Pa. Super. 2009) (indicating delay of fourteen days in filing petition to open

was timely); Pappas v. Stefan, 304 A.2d 143 (Pa. 1973) (fifty-five day

delay was not prompt)).

      In the present case, Appellants aver that they did not become aware

of the entry of the default judgment until November 11, 2013, when they

received documents from Appellees’ collection counsel in an attempt to

execute on the judgment.     See Appellants’ Brief at 4-5; Memorandum in

Support of Amended Petition to Open, 1/30/14, at 3. Appellants did not file

their petition to open until almost sixty days later, on January 9, 2014. The



                                     -4-
J-S74023-14


only reason for the delay offered by Appellants was their need to secure

counsel and “some time to make a decision as to how to proceed[.]”

Appellants’ Brief at 7. The trial court rejected this as an adequate reason for

the delay, as “these are challenges that face all litigants.”        Trial Court

Opinion, 3/21/14, at 4.        It concluded that “[w]ithout any plausible

explanation or special circumstance … it is neither reasonable nor equitable

to find that the … delay was justified[.]” Id. We find no abuse of discretion

in this conclusion. Appellants have alleged only that the delay in filing their

petition to open was due to routine obstacles that all litigants face; they

have provided no compelling reason for the delay. Accordingly, we find no

error in the trial court’s determination that they failed to establish that their

petition was promptly filed.

        The trial court also concluded that Appellants failed to establish the

third prong of the relevant test: a justifiable explanation for failing to

respond to the complaint.       In their petition, Appellants stated that the

reason they did not file a response to the complaint was because “neither

[Appellant] is an attorney, and therefore neither [Appellant] understood the

importance of filing an [a]nswer or the repercussions of not filing an

[a]nswer.” Memorandum in Support of Amended Petition to Open, 1/30/14,

at 3.      They further stated that they attended a case management

conference, at which Appellees did not appear, and that in light of a




                                      -5-
J-S74023-14


conversation with the “case manager” at that time, it was their belief that

the case would be dismissed. Id. at 3-4.

     The trial court found that these explanations were insufficient,

especially in light of the fact that the complaint contained an explicit

advisement that they contact an attorney and contained contact information

for the Philadelphia Bar Association Referral Service.   Trial Court Opinion,

3/21/14, at 5. It further found that “Appellants’ failure to obtain competent

legal advice in an appropriate time frame amounts to a deliberate decision

not to defend.” Id. (citing Mallory, 982 A.2d at 996).

     Again, we find no error in the trial court’s determination. With regard

to this prong of the applicable test, “whether an excuse is legitimate is not

easily answered and depends upon the specific circumstances of the case.

The appellate courts have usually addressed the question of legitimate

excuse in the context of an excuse for failure to respond to the original

complaint in a timely fashion.” Mallory, 982 A.2d at 995 (internal citation

omitted). However, the appellate courts consistently have rejected the lack

of legal sophistication or familiarity with the legal system as justifiable

reasons for a delay in filing a response to a complaint. See id. at 996 (“The

fact [a]ppellant may be unsophisticated in legal … matters is all the more

reason she should have heeded the notices to secure legal counsel at once,

and her deliberate decision not to defend does not provide a reasonable

explanation or excuse necessary to open the default judgment.”); Sharon



                                    -6-
J-S74023-14


Hill Contracting Co. v. Recreational Equip. Unlimited, Inc., 425 A.2d

447, 450 (Pa. Super. 1981) (“[M]ere ignorance or inexperience with the

legal process is by itself an insufficient justification for a default[.]”);

Kilgallen v. Kunta, 310 A.2d 396, 398 n.5 (Pa. Super. 1973) (same).

      On appeal, Appellants do not explain how or why the trial court’s

conclusion was in error; they simply reiterate the excuses they pled in the

trial court and assert that they constitute a reasonable justification for failing

to file a response to the complaint. See Appellant’s Brief at 8-9. However,

as discussed above, we have found that the trial court’s determination is

without error. As such, Appellants’ claim fails.1

      In their second issue, Appellants claim that “equitable considerations

require that the case be decided on the merits.” Id. at 10. Appellants fail,

however, to cite or discuss even one authority in support of this claim. See

id. at 10-11. “The Rules of Appellate Procedure state unequivocally that

each question an appellant raises is to be supported by discussion and

analysis of pertinent authority. Failure to do so constitutes waiver of the

claim.”   Giant Food Stores, LLC v. THF Silver Spring Dev., L.P., 959



1
  Appellants also contend that they have satisfied the remaining prong of the
relevant test. Appellants’ Brief at 9. The trial court did not address this
prong in its opinion. However, a petitioner must establish all three prongs of
this test before the trial court will open a default judgment. See Schultz v.
Erie Ins. Exch., 477 A.2d 471, 472 (Pa. 1984). As the trial court correctly
concluded that Appellants failed to satisfy two of these prongs, they are
foreclosed from relief, even if they were able to satisfactorily establish the
remaining one.


                                      -7-
J-S74023-14


A.2d 438, 444 (Pa. Super. 2008) (citing Estate of Haiko v. McGinley, 799

A.2d   155, 161    (Pa.   Super.   2002);   Pa.R.A.P.   2119(b)).   Accordingly,

Appellants have waived this claim for failure to adequately develop it.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/18/2014




                                     -8-
