J-A17034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BORIS MARKH AND ALLA MARKH                     IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellees

                   v.

MIKHAIL AND IRINA KOTIKOVSKY

                        Appellants                  No. 283 EDA 2015


                Appeal from the Order November 24, 2014
               In the Court of Common Pleas of Pike County
                     Civil Division at No(s): 1864-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED OCTOBER 07, 2015

     Appellants, Mikhail and Irina Kotikovsky, appeal from the order

entered in the Pike County Court of Common Pleas, which denied Appellants’

petition to open a default judgment. We affirm.

     The relevant facts and procedural history of this case are as follows.

On January 1, 2013, Appellees, Boris Markh and Alla Markh, were guests at

Appellants’ vacation home in Dingman’s Ferry.          Mr. Markh allegedly

sustained injuries after he slipped and fell on icy stairs located on the

property. Appellees filed a complaint in negligence on November 22, 2013,

and served the complaint on Appellants on November 26, 2013. Appellants

did not file a responsive pleading.   On February 11, 2014, Appellees sent

Appellants a ten-day notice of intent to file a praecipe for entry of default

judgment, per Pa.R.C.P. 237.1. Twenty-one days later, on March 4, 2014,
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Appellees filed a praecipe to enter default judgment, and the prothonotary

entered judgment by default against Appellants.

     Counsel for Appellants entered an appearance on May 2, 2014.         On

May 13, 2014, Appellants filed a petition to open the default judgment,

along with an answer and new matter to the complaint. Following a hearing,

the trial court denied the petition on November 25, 2014. Appellants filed a

timely notice of appeal on December 19, 2014.            The court ordered

Appellants to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b), and Appellants timely complied.

     Appellants raise the following issues for our review:

        WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
        DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
        TO OPEN DEFAULT JUDGMENT PURSUANT TO PA.R.CIV.P.
        237.3 AND ESTABLISHED CASELAW WHERE THE
        EVIDENCE ESTABLISHED THAT [APPELLANTS] MET THE
        FOLLOWING 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 THEIR FAILURE TO FILE A
        RESPONSIVE PLEADING?

        WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
        DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
        TO OPEN DEFAULT JUDGMENT BECAUSE, IN REACHING
        ITS CONCLUSION THAT [APPELLANTS’] REASONS FOR
        DELAY DID NOT EXCUSE THE DELAY AND THAT THE
        PETITION WAS NOT FILED PROMPTLY, THE COURT
        EXERCISED   JUDGMENT    WHICH   IS   MANIFESTLY
        UNREASONABLE UNDER THE CIRCUMSTANCES?

        WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
        DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
        TO OPEN DEFAULT JUDGMENT BECAUSE THE COURT’S
        ANALYSIS REGARDING THE PROMPTNESS REQUIREMENT

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         IS AT ODDS WITH MODERN JURISPRUDENCE AND THE
         TYPICAL TIMELINE ASSOCIATED WITH LITIGATION OF
         CIVIL MATTERS IN THE STATE COURT SYSTEM FROM
         INCEPTION THROUGH TRIAL?

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
         TO OPEN DEFAULT JUDGMENT WHERE EQUITY CLEARLY
         FAVORED OPENING THE JUDGMENT?

         WHETHER THE TRIAL COURT ERRED AND/OR ABUSED ITS
         DISCRETION WHEN IT DENIED [APPELLANTS’] PETITION
         TO OPEN DEFAULT JUDGMENT WHERE [APPELLEES] DID
         NOT SUFFER ANY PREJUDICE BASED ON THE DELAY
         BETWEEN THE ENTRY OF DEFAULT JUDGMENT AND THE
         FILING OF THE PETITION TO OPEN DEFAULT JUDGMENT?

(Appellant’s Brief at 4-5).

      In their issues combined, Appellants argue they raised several

meritorious defenses in their answer and new matter.     Appellants concede

proper service of the complaint and filings related to entry of the default

judgment.     Nevertheless, Appellants contend their delay was excusable

because they thought their insurance company, which had been in contact

with Appellees’ counsel following the incident, was handling the matter.

Appellants claim Appellees’ counsel failed to provide a copy of the complaint

to the insurance company or to advise it that Appellees had filed a

complaint. Appellants assert Appellees’ counsel knew before the complaint

was filed that Appellants’ insurance company intended to defend the claims.

Appellants “admit that there is no precedent under Pennsylvania law which

would allow for a delay [of] roughly 70 days between the date of a default

judgment being taken and a petition to open a default judgment being filed.”

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(Appellant’s Brief at 16). Appellants assert, however, that current precedent

“is at odds with modern case realities,” given the typically long period of

pretrial activity in civil cases.   Id. at 17.    Appellants reject a “bright line

test” for promptness and emphasize that Appellees failed to allege any

prejudice caused by Appellants’ delay in filing a responsive pleading.

Appellants conclude they satisfied the three-prong standard to justify

opening the default judgment. We disagree.

      The decision to grant or deny a petition to open a default judgment is

a matter of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90,

477 A.2d 471 (1984). A petition to open a default judgment is an appeal to

the court’s equitable powers, and absent an error of law or an abuse of

discretion, this Court will not disturb that decision on appeal.         Reid v.

Boohar, 856 A.2d 156 (Pa.Super. 2004).

      Pennsylvania Rule of Civil Procedure 237.3(b) provides: “If the petition

[challenging the default judgment] is filed within ten days after the entry of

the judgment on the docket, the court shall open the judgment if the

proposed complaint or answer states a meritorious cause of action or

defense.” Pa.R.C.P. 237.3(b). Where a petition to open a default judgment

is not filed within ten (10) days of entry of the default judgment, the movant

must “(1) promptly file a petition to open judgment, (2) provide a

meritorious defense; and (3) offer a legitimate excuse for the delay in filing

a timely answer.”     Reid, supra at 160.        To succeed, the petitioner must


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meet all three requirements. US Bank N.A. v. Mallory, 982 A.2d 986, 995

(Pa.Super. 2009); Duckson v. Wee Wheelers Inc., 620 A.2d 1206

(Pa.Super. 1993). In other words, if the petitioner fails to meet even one

requirement for opening judgment, the court can deny relief without even

considering arguments made with regard to the two other requirements. Id.

at 1209. If the petitioner has made some showing as to all three prongs of

the test, then the court is entitled to consider each point in light of all the

“circumstances and equities of the case.”      Id.   Courts “must determine

whether there are equitable considerations which require that a defendant,

against whom a default judgment has been entered, receive an opportunity

to have the case decided on the merits.” Id. at 1208.

      With respect to the first requirement that the petitioner promptly file a

petition to open, this Court does not “employ a bright line test”; courts focus

“on two factors: (1) the length of the delay between discovery of the entry

of the default judgment and filing the petition to open judgment, and (2) the

reason for the delay.” Flynn v. America West Airlines, 742 A.2d 695, 698

(Pa.Super. 1999). Given an acceptable reason for the delay, one month or

less between the entry of the default judgment and the filing a petition for

relief from the judgment typically meets the time requirement for a prompt

filing of a petition for relief. Myers v. Wells Fargo Bank, N.A., 986 A.2d

171, 176 (Pa.Super. 2009).     See also US Bank N.A., supra (comparing

cases and rejecting eighty-two day interval between default judgment and


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petition for relief as tardy).

      With respect to the second requirement of a justifiable excuse, courts

look to the specific circumstances of the case to determine whether the

petitioner offered a legitimate explanation for the delay that caused entry of

a default judgment.      Id.     “While some mistakes will be excused, …mere

carelessness will not be….” Bahr v. Pasky, 439 A.2d 174, 177 (Pa.Super.

1981).

         Generally speaking, a default attributable to a defendant’s
         justifiable belief that his legal interests are being protected
         by his insurance company is excusable. However, if the
         insured fails to inquire of the insurer as to the status of the
         case after events have occurred which should have
         reasonably alerted the insured to a possible problem, the
         insured is precluded from asserting a justifiable belief
         that its interests were being protected.

Duckson, supra at 1210 (citations omitted) (emphasis in original). Finally,

as to asserting a meritorious defense, the petitioner must aver facts that if

proved at trial would justify relief. See id.

      Instantly, the trial court reasoned as follows:

         [Appellants] allege numerous reasons for the delay in filing
         their answer and petition: [Appellants’] lack of legal
         expertise, [Appellants’] belief the insurance company was
         handling the case, the mistaken belief the insurance
         company     was     also   receiving    the  case   related
         correspondence and no action was required on
         [Appellants’] behalf, and the failure of [Appellees’]
         attorney to advise the insurance company of the
         developments within the case. While [Appellants] have
         advanced a myriad of reasons for the delay, the court does
         not agree that the reasons provided excuse the prolonged
         delay. The default judgment was entered on March 4,
         2014; Entry of Appearance on May 2, 2014; and the

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         petition [to open default judgment] on May 13, [2014,]
         approximately 70 days, or 10 weeks, after the filing of the
         default judgment. After considering the length of time and
         the reasons for the delay, the court rejects the assertion
         that [Appellants] have promptly filed their petition to open
         default judgment. Therefore, because [Appellants] have
         failed under the first prong, which requires a promptly filed
         petition, the court will not exercise its discretion to open
         default judgment.

(Order, filed 11/25/14). The court added the following in its Rule 1925(a)

opinion: “[E]ven if a seventy (70) day delay were considered prompt, the

excuses proffered and the evidence presented by [Appellants] failed to

convince the [c]ourt that a granting of the Petition is warranted.”      (Trial

Court Opinion, filed January 29, 2015, at 3). The record supports the court’s

analysis. Appellants acknowledge proper service of the complaint, the Rule

237.1 ten-day notice of Appellees’ intent to seek a default judgment, and

the praecipe to enter default judgment. The language of the ten-day notice

complied with Pa.R.C.P. 237.5, informing Appellants that (1) they failed to

enter an appearance personally or through an attorney; (2) they failed to file

in writing with the court their defenses or objections to the claims in

Appellees’ complaint; (3) unless Appellants acted within ten days, a

judgment might be entered against them without a hearing and they may

lose their property or other rights; and (4) they should take the notice to a

lawyer at once. See Pa.R.C.P. 237.5. Even after Appellants received that

notice, they failed to contact their insurance company or an attorney or take

any other action. By that point, Appellants knew or should have known that


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their insurance company was not handling the matter or protecting their

interests. Appellants then received notice of entry of the default judgment.

Nevertheless, Appellants failed to file a petition to open the default judgment

for over two months after default judgment was entered and almost six

months after the complaint was filed and served.1 Therefore, the trial court

acted within its discretion when it denied Appellants’ petition on the grounds

that it was not promptly filed and Appellants’ misplaced reliance on their

insurance company was not a legitimate excuse for their protracted delay in

responding to Appellees’ complaint.2           See US Bank N.A., supra; Reid,

supra; Duckson, supra. Accordingly, we affirm.

       Order affirmed.




____________________________________________


1
   At the October 28, 2014 petition to open hearing, Appellant Mr.
Kotikovsky’s testimony on this issue was inconsistent. He initially stated he
took no action when he received the complaint, Rule 237.1 notice, or
praecipe to enter default judgment.        On cross-examination, however,
Appellant Mr. Kotikovsky alternatively testified that he could not remember
what he did, and that he did in fact contact the insurance company at some
point. Appellants’ insurance claims representative testified that he received
no documents from Appellants or information that Appellants had been
served with any documents.
2
  Appellants’ reliance on the outcome in Duckson, supra, is inappropriate
because in Duckson, the defendant filed a petition to open the default
judgment one day after the default judgment had been entered. See id.
Moreover, Appellants’ dissatisfaction with current precedent does not justify
this Court’s deviation from it.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2015




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