            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Rita Smilowitz                                :
                                              :
       v.                                     : No. 1408 C.D. 2017
                                              : SUBMITTED: November 13, 2018
City of Chester and Chester                   :
Parking Authority and Worrell                 :
Real Estate Services, LLC                     :
                                              :
Appeal of: Worrell Real Estate                :
Services, LLC                                 :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ELLEN CEISLER, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                               FILED: December 20, 2018

       Worrell Real Estate Services, LLC (Worrell) appeals from the May 8, 2017
Order of the Court of Common Pleas of Delaware County (Trial Court) denying its
Petition to Open Default Judgment (Petition to Open).1 For the reasons that follow,
we affirm the Trial Court’s Order.
                                          Background
       In 2013, Worrell and the City of Chester entered into a Management
Agreement (Agreement).             Under the Agreement, Worrell agreed to provide
maintenance services, including snow and ice removal, for the property located at
140-160 East Seventh Street in the City of Chester, as well as the property’s
associated parking lots and common areas. Agmt. at 1-3. The Agreement states:


       1
         Worrell initially filed its appeal in the Pennsylvania Superior Court, which transferred the
matter to this Court for disposition.
      [The City of Chester] owns an office building located at 140-160 East
      Seventh Street, Chester, Pennsylvania, consisting of approximately
      40,000 square feet together with parking and other improvements
      and amenities (the “Building”); and . . .

      ...

      [The City of Chester] wishes to appoint [Worrell] to act as the
      managing agent of the improvements including the Building and the
      adjacent parking and common areas pursuant to the terms of this
      Agreement, and [Worrell] wishes to accept such appointment[] . . . .

Id. at 1 (emphasis added). On December 11, 2013, the City of Chester passed a
Resolution

      authoriz[ing] the proper City Officials to enter into the attached
      [A]greement with Worrell Real Estate Services, [LLC,] 535 Avenue of
      the States, Chester, PA 19013, for the management of the office
      building located at 140-160 East 7th Street, Chester, PA 19013,
      consisting of 40,000 square feet, together with parking lot and other
      improvements and amenities, effective January 1, 2014.

Reproduced Record (R.R.) at 6a (emphasis added).
      On February 4, 2014, Rita Smilowitz slipped and fell on ice in the municipal
parking lot located on East Seventh Street in the City of Chester. At the time of her
fall, Ms. Smilowitz was on her way to the City of Chester Magisterial District Court
(District Court), where she had been subpoenaed to testify at a hearing. The District
Court is located at 160 East Seventh Street; the municipal parking lot is across the
street from the District Court.
      On December 14, 2015, Ms. Smilowitz filed a Complaint asserting a cause of
action for negligence against the City of Chester and the Chester Parking Authority
(together, City Defendants). On January 29, 2016, Ms. Smilowitz filed an Amended




                                         2
Complaint, joining Worrell as an additional defendant.2 Ms. Smilowitz averred that
“Worrell was the agent, servant or employee of [the City Defendants], to provide
snow and ice removal services for the property located at 160 East Seventh Street,
Chester, PA and the City of Chester East Seventh Street Municipal Parking Lot.”
Am. Compl., ¶ 5. Worrell did not respond to the Amended Complaint.
       Thereafter, the City Defendants filed an Answer and New Matter, asserting
cross-claims against Worrell. The City Defendants alleged that under the terms of
the Agreement, Worrell was liable for Ms. Smilowitz’s injuries and was required to
provide a defense and indemnity to the City of Chester.
       On April 22, 2016, Ms. Smilowitz served Worrell with a Notice of Intention
to File a Praecipe for Entry of Default Judgment against it. Worrell did not respond
to the Notice. Thereafter, on May 31, 2016, the Trial Court entered a default
judgment against Worrell.3
       Eleven months later, on April 11, 2017, Worrell filed its Petition to Open,
averring as follows:


       5. [Worrell] was advised by the City of Chester that [it] had no liability
       for the property located at 145-153 E. 7th Street, as [the Agreement]
       did not extend to that location.

       ...

       13. [Worrell] has a complete defense to [Ms. Smilowitz’s] claim:



       2
         On January 26, 2016, Ms. Smilowitz and the City Defendants signed a Stipulation to
Amend Complaint, in which Ms. Smilowitz agreed to “file an Amended Complaint adding Worrell
Real Estate Services, LLC and other responsible parties as Defendants.” R.R. at 36a-37a.

       3
          In February 2017, Ms. Smilowitz settled her claims with the City Defendants. They are
not participants in this appeal.


                                              3
              (a) The injuries sustained by [Ms. Smilowitz] were sustained at
                  145-153 E. 7th Street, Chester, PA.

              (b) [Worrell] does not own, operate or have a contract to manage
                  the property located at 145-153 E. 7th Street, Chester, PA.

              (c) [Worrell] did not cause or contribute to the conditions at 145-
                  153 E. 7th Street, Chester, PA that resulted in [Ms. Smilowitz’s]
                  injuries.

        ...

        14. [Worrell] has repeatedly been advised by Defendant City of Chester
        that [it] had no liability for the injuries sustained by [Ms. Smilowitz]
        including in open court.

        15. [Worrell] believed that comments made in open court by the
        Defendant City of Chester’s counsel w[ere] sufficient to relieve [it] of
        any further obligation to defend this suit.

        16. [Worrell] was not treated by [Ms. Smilowitz’s] counsel or the
        [Trial] Court as a pro se litigant during scheduled settlement
        conferences.

Pet. to Open Default Judg., ¶¶ 5, 13(a)-(c), 14-16.4 Ms. Smilowitz filed a Response
to the Petition to Open, in which she averred, inter alia, that Worrell “was served
with Interrogatories and Request for Production of Documents which [Worrell]
failed to answer” and that Worrell “was not excluded from settlement discussions,
and appeared and participated in a voluntary mediation proceeding held by the
[Trial] Court.” Smilowitz’s Resp. to Pet. to Open, ¶¶ 9-10.
        On May 8, 2017, the Trial Court denied Worrell’s Petition to Open. In its Pa.
R.A.P. 1925(a) Opinion, the Trial Court explained its reasoning as follows:

        4
          In its brief, Worrell states: “Once the [Trial] Court scheduled this matter for further action
after the settlement of the claim by the [City Defendants], [Worrell] obtained counsel and filed a
Petition to Open Default Judgment.” Worrell’s Br. at 7.


                                                   4
      The contention of [Worrell] of being advised by the [City Defendants]
      that there was no need for [Worrell] to defend against [Ms.
      Smilowitz’s] claims was utterly belied by the [City Defendants’]
      pleadings against [Worrell], as well as by [Worrell’s] failure to submit
      any corroborative evidence whatsoever establishing that the [City
      Defendants] intended and acted to dissuade [Worrell] from raising a
      defense to this action. In fact, [the] Agreement between the . . . City of
      Chester[] and [Worrell] required [Worrell] to provide a defense and
      indemnity to the [City] Defendants in these circumstances.

             Finally, [Worrell’s] total failure to file responsive pleadings to
      the Complaint and otherwise participate in the instant litigation
      following its initiation in January of 2016, and for nearly a year after
      the taking of the default judgment on May 31, 2016, was violative [sic]
      of the Pennsylvania Rules of Civil Procedure that require even pro se
      litigants to adhere to requirements of a party sued in our courts. In
      addition to the protracted delay in petitioning to open the default
      judgment, [Worrell’s] lack of a meritorious defense to this action and
      of a reasonable excuse for the failure to file a responsive pleading
      resulted in this Court’s . . . Order denying its prayer for relief. . . .

      ...

             Therefore, even if there were a scintilla of support, credibility
      and reliability surrounding [Worrell’s] averments of being told by the
      [City Defendants] that [Worrell] was not liable for [Ms. Smilowitz’s]
      injuries, and to be sure, there is none, [Worrell] was still required, as a
      pro se litigant, to provide responsive pleadings, answers to discovery
      requests, and the requisite degree of proofs until [Ms. Smilowitz’s]
      claims and [the City] Defendants’ defenses were resolved in . . . a court
      of law.

Trial Ct. Op., 8/4/17, at 1-2, 11. Worrell now appeals to this Court.
                                        Issues
      (1) Did the Trial Court abuse its discretion in failing to hold an evidentiary
hearing to determine whether Worrell’s failure to properly answer the Amended
Complaint was the result of non-negligent circumstances?

                                          5
      (2) Did the Trial Court abuse its discretion in failing to hold an evidentiary
hearing to determine if Ms. Smilowitz’s counsel engaged in impermissible ex parte
communications with the Trial Court?
                                Parties’ Arguments
      Worrell argues that the Trial Court improperly precluded it from creating an
evidentiary record to support its contention that it reasonably believed it was
represented by the City Defendants’ counsel. Worrell also argues that it reasonably
believed that it was not required to respond to the Amended Complaint because the
City Defendants’ counsel stated in open court that Worrell bore no responsibility for
Ms. Smilowitz’s injuries. Finally, Worrell argues that the Trial Court abused its
discretion in failing to hold a hearing to determine if Ms. Smilowitz’s counsel
engaged in impermissible ex parte communications with the Trial Court.
      In response, Ms. Smilowitz argues that the Trial Court properly denied
Worrell’s Petition to Open because Worrell failed to satisfy the requirements for
opening a default judgment. First, Worrell did not promptly file its Petition to Open,
as Worrell filed it 11 months after entry of the default judgment. Second, Worrell
did not offer a reasonable excuse for its failure to respond to the Amended
Complaint. According to Ms. Smilowitz, Worrell’s claim that the City Defendants
stated that Worrell is not liable is belied by both the language of the Agreement and
the City Defendants’ cross-claims. Third, Worrell failed to establish a meritorious
defense because the Agreement clearly required Worrell to maintain not only the
property located at 140-160 East Seventh Street, but also the associated parking lots.
Ms. Smilowitz further asserts that Worrell’s allegations of ex parte communications
between her counsel and the Trial Court are both unfounded and waived.




                                          6
                                       Analysis
        A petition to open a default judgment is an appeal to the Trial Court’s
equitable powers and a matter of judicial discretion. McCoy v. Pub. Acceptance
Corp., 305 A.2d 698, 700 (Pa. 1973). The decision whether to grant or deny a
petition to open a default judgment is within the Trial Court’s sound discretion, and
we will not reverse that decision “absent a ‘manifest abuse of discretion.’” Office of
Atty. Gen., Bureau of Consumer Prot. v. Lubisky, 88 A.3d 328, 332 n.5 (Pa. Cmwlth.
2014) (citation omitted).
        To successfully open a default judgment, the defendant must show that he or
she: (1) promptly filed the petition to open; (2) has a reasonable excuse for failing
to respond to the complaint; and (3) has a meritorious defense. Comyn v. Se. Pa.
Transp. Auth., 594 A.2d 857, 858 (Pa. Cmwlth. 1991); see Schultz v. Erie Ins. Exch.,
477 A.2d 471, 472 (Pa. 1984). A petition to open must be “filed within ten days
after the entry of the judgment on the docket.” Pa. R.C.P. No. 237.3(b). However,
if the defendant files a petition to open more than 10 days after the entry of judgment,
as Worrell did here, then the defendant must satisfy the three-part test.
        In determining whether a petition to open was promptly filed, our Court has
stated that “timeliness is measured from the date that notice of the entry of the
judgment is received.” Lubisky, 88 A.3d at 334. Here, it is undisputed that Worrell
filed its Petition to Open 11 months after the default judgment was entered.
Critically, Worrell admits that it was timely served with both the Notice of Intention
to File a Praecipe for Entry of Default Judgment and the Notice of Entry of Default
Judgment. See Worrell’s Br. at 5; Pet. to Open Default Judg., ¶¶ 8-9. Therefore, the
Trial Court properly concluded that Worrell did not promptly file its Petition to
Open.



                                           7
      Next, Worrell’s Petition to Open did not set forth a reasonable excuse for its
failure to timely respond to the Amended Complaint. Worrell averred that it was not
obligated to respond to the Amended Complaint based on alleged oral
representations by the City Defendants’ counsel, which led Worrell to believe that it
was represented by the City Defendants’ counsel. Worrell also averred that the City
Defendants’ counsel stated in open court that Worrell bore no responsibility for Ms.
Smilowitz’s injuries.
      Worrell’s contentions are belied by the record. Although Worrell claims that
it was advised by the City Defendants that it had no liability, the record shows that
both City Defendants filed cross-claims against Worrell, alleging that Worrell was
liable for Ms. Smilowitz’s injuries by virtue of the Agreement. The City of Chester
also filed a cross-claim alleging that Worrell was required to provide a defense and
indemnity to the City of Chester under the Agreement. Notably, Worrell has
provided no details regarding the place, time, or specific content of counsel’s
purported statements, other than a bare assertion that they occurred “in open court.”
Pet. to Open Default Judg., ¶¶ 14-15. Because the record contains no evidence to
support Worrell’s contentions, the Trial Court properly found that Worrell did not
satisfy the reasonable excuse prong.
      Worrell’s Petition to Open also failed to include allegations of a meritorious
defense that, if proven at trial, would entitle it to relief. The only defense alleged in
the Petition to Open was that Worrell was not liable because the parking lot where
Ms. Smilowitz fell was across the street from the District Court and, therefore, not
encompassed by the Agreement. However, the Agreement explicitly provides that
it applies to the property “located at 140-160 East Seventh Street, Chester,
Pennsylvania, consisting of approximately 40,000 square feet together with



                                           8
parking and other improvements and amenities.” Agmt. at 1 (emphasis added);
see also R.R. at 6a.
       It is true, as Worrell points out, that the Agreement does not identify the
precise location of the parking areas that are the subject of the Agreement.
Nonetheless, it is undisputed that Ms. Smilowitz fell in a municipal parking lot
across the street from the District Court. Worrell has not alleged that there are any
other parking areas in the vicinity of the District Court to which the Agreement
would apply.
       Even if Worrell could have proven that the municipal parking lot at issue was
not encompassed by the Agreement, Worrell’s failure to promptly file its Petition to
Open and to provide a reasonable excuse for failing to respond to the Amended
Complaint precludes Worrell from obtaining relief. See McCoy, 305 A.2d at 700
(stating that all three factors must be met before a default judgment may be opened).
Therefore, we conclude that the Trial Court properly denied Worrell’s Petition to
Open and did not abuse its discretion in failing to hold a hearing on the Petition.
       Finally, we agree with Ms. Smilowitz that Worrell has waived its claim
regarding alleged ex parte communications between Ms. Smilowitz’s counsel and
the Trial Court because Worrell asserted it for the first time in its Pa. R.A.P. 1925(b)
Concise Statement of Errors Complained of on Appeal. See Pa. R.A.P. 302(a)
(stating that issues raised for the first time on appeal are waived). We also conclude
that the Trial Court did not abuse its discretion in failing to hold a hearing regarding
Worrell’s ex parte claims, as the Trial Court had no notice of such claims until after
the appeal was filed.5

       5
        In any event, the Trial Court addressed Worrell’s allegations in its Pa. R.A.P. 1925(a)
Opinion as follows:



                                              9
                                            Conclusion
       Accordingly, we affirm the Trial Court’s Order.



                                               __________________________________
                                               ELLEN CEISLER, Judge



Judge Fizzano Cannon did not participate in the decision of this case.




       There are scurrilous allegations that this Court engaged in ex parte contact with
       counsel for the opposing parties and ostracized [Worrell] from participation in a
       “voluntary settlement” event. However, that event took place in another forum, in
       a different venue before another judicial officer or arbitrator, and it is long since
       past the time when an appeal therefrom can be waged over the issue as to whether
       an evidentiary hearing on [Worrell’s] status therein ought to have taken place.
       Further, [Worrell] has submitted no transcript or reproduced record, nor witness
       testimony from any such proceedings, including from this Court’s mediation
       conference held on April 7, 2017, at which [Worrell’s] counsel was present and
       fully participated in the discussion.

Trial Ct. Op., 8/4/17, at 9-10 (internal citations omitted).


                                                  10
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Rita Smilowitz                    :
                                  :
      v.                          : No. 1408 C.D. 2017
                                  :
City of Chester and Chester       :
Parking Authority and Worrell     :
Real Estate Services, LLC         :
                                  :
Appeal of: Worrell Real Estate    :
Services, LLC                     :

                                 ORDER


      AND NOW, this 20th day of December, 2018, the Order of the Court of
Common Pleas of Delaware County, dated May 8, 2017, is hereby AFFIRMED.




                                  __________________________________
                                  ELLEN CEISLER, Judge
