J-S16028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EZRA REUVEN                                   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DARIUS MASON AND VENEZLA MASON

                        Appellants                 No. 1818 EDA 2015


               Appeal from the Order Entered May 18, 2015
           In the Court of Common Pleas of Philadelphia County
                    Civil Division at No(s): 150202815


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                              FILED JUNE 22, 2016

     Darius Mason and Venezla Mason (Masons) appeal from the order

entered on May 18, 2015, in the Court of Common Pleas of Philadelphia

County, denying their appeal of the Municipal Court’s denial of their motion

to open or strike judgment in favor of Ezra Reuven (Reuven). In this timely

appeal, the Masons claim the Court of Common Pleas erred in failing to

recognize the judgment was defective on its face due to lack of service of

the underlying complaint and lack of Municipal Court jurisdiction due to the

amount of damages sought.      Additionally, the Masons argue the Court of

Common Pleas failed to recognize the underlying judgment should have

been opened because Reuven failed to present any evidence supporting the
J-S16028-16



judgment.      After a thorough review of the Appellants’ brief,1 the certified

record and relevant law, we affirm on the basis of the trial court opinion,

dated June 25, 2015, authored by the Honorable Nina Wright Padilla.

        We glean the underlying facts from the certified record. The Masons

had an oral lease with Reuven regarding the property located at 537 N. 35 th

Street, Philadelphia, Pennsylvania, more commonly known as the Easy

Corner Bar.      In 2013, the Masons fell behind on the rent and allegedly

caused damage to the property.                 Reuven filed suit against the Masons,

seeking a judgment of possession and a money judgment of more than

$9,000.00 in unpaid rent and more than $42,000.00 to repair the property.

The total amount of damages claimed was $52,568.18.                  This action was

brought as a landlord/tenant lawsuit in the Philadelphia Municipal Court. The

Masons were served notice of the suit by posting the premises.

        The Masons did not appear for trial and judgment was entered on

December 17, 2013, in favor of Reuven for $52,700.68.2 Reuven was also

awarded possession of the property.               Eight months later, on August 26,

2014, the Masons filed a petition to open judgment, which was voided on

September 9, 2014, due to their failure to act.               Four months later, on

December 30, 2014, the Masons filed another petition to open judgment,
____________________________________________


1
    The Appellee, Ezra Reuven, did not file a brief.
2
 The judgment represents the amount sought in damages plus $132.50 in
costs.



                                           -2-
J-S16028-16



which was denied on February 6, 2015, in the Municipal Court following a

hearing. On February 25, 2015, the Masons filed an appeal of that denial

with the Court of Common Pleas.      On March 27, 2015, the Masons filed a

motion to open or strike the Municipal Court judgment, claiming the

Municipal Court lacked jurisdiction due to a failure to serve original process

and because the amount sought exceeded the jurisdictional limits of the

Municipal Court.     Additionally, the Masons claimed that Reuven had not

presented any admissible evidence to support the claim for damages.

      Our standard of review regarding a petition to strike is:

         A petition to strike a judgment is a common law
         proceeding which operates as a demurrer to the record. A
         petition to strike a judgment may be granted only for a
         fatal defect or irregularity appearing on the face of the
         record.... An order of the court striking a judgment annuls
         the original judgment and the parties are left as if no
         judgment had been entered.

      Cintas Corporation v. Lee’s Cleaning Services, Inc., 549 Pa.
      84, 89-90, 700 A.2d 915, 917 (1997) (quoting Resolution
      Trust Corporation v. Copely Qu-Wayne Associates, 546 Pa.
      98, 106, 683 A.2d 269, 273 (1996)). In determining whether
      fatal defects exist on the face of the record for the purpose of
      striking a judgment, a court may look only at what was in the
      record when the judgment was entered. Cintas Corporation,
      supra at 90, 700 A.2d at 917. We review a trial court's refusal to
      strike a judgment for an abuse of discretion or an error of law.
      Frontier Leasing Corporation v. Shah, 931 A.2d 676 (Pa.
      Super. 2007).

Knickerbocker Russell Co., Inc. v. Crawford, 936 A.2d 1145, 1146-47

(Pa. Super. 2007).

      Regarding the denial of a petition to open, we are required to,



                                     -3-
J-S16028-16


       examine the entire record for any abuse of discretion, reversing
       only where the trial court's findings are inconsistent with the
       clear equities of the case. Moreover, this Court 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.
       Where the trial court's analysis was premised upon record
       evidence, where its findings of fact were deductions from other
       facts, a pure result of reasoning, and where the trial court made
       no credibility determinations, this Court may draw its own
       inferences and arrive at its own conclusions. Finally, where the
       equities warrant opening a default judgment, this Court will not
       hesitate to find an abuse of discretion.

Reid v. Boohar, 856 A.2d 156, 159 (Pa. Super. 2004) (citation omitted). 3

       As noted above, the trial court opinion ably discusses and disposes of

the Masons’ arguments.          Our review of the certified record discloses no

abuse of discretion or error of law therein. Accordingly, we rely upon the

sound reasoning of the Honorable Nina Wright Padilla.4

       Order affirmed. Parties are directed to attach a copy of the trial court

opinion in the event of further proceedings.



____________________________________________


3
  We join in the trial court reminding counsel for the Masons that a petition
to strike and petition to open are distinct claims seeking “distinct remedies
and generally are not interchangeable.” Aquilino v. Philadelphia Catholic
Archdiocese, 884 A.2d 1269, 1280 (Pa. Super. 2005).
4
   We note the Masons’ argument that while Reuven styled the action as
landlord-tenant, “that action was actually one for damages arising out of
[the Masons] claimed destruction of Reuven’s property.” The Masons’ Brief,
at 13. However, Judge Wright Padilla determined the action was properly
brought in the Municipal Court as a landlord/tenant action which does not
have a jurisdictional upper limit to damages and the Masons have provided
no case law that overcomes that determination.



                                           -4-
J-S16028-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




                          -5-
                                                                                                 Circulated
                                                                               Received 07/29/2015 Superior 05/23/2016 11:34
                                                                                                            Court Eastern    AM
                                                                                                                          District


                                                                                   Filed 07/29/2015 Superior Court Eastern District
                                                                                                                  1818 EDA 2015
                                            IN THE COURT OF COMMON PLEAS
                                      FIRST JUDICIAL DISTRICT OF PENNSYLVANIA


         EZRA REUVEN                                                       SUPERIORCOURTNo.
                                                                           1818 EDA 2015
                          v.
                                                                           Civil Division
                                                                           February Term 2015, No. 28!5
         DARIUSMASONand VENEZLAMASON


                                                             OPINION


                  Appellants, Darius and Venezia Mason, appeal from this Court's Order denying their Petition to
                                                                                                           '
        Open Judgment.



                                             FACTS AND PROCEDURAL HISTORY

                  On February 25, 2015, Appellants commenced this action by appealing from a Municipal Court

        judgment.

                  The underlying Municipal Court case was a landlord-tenant action filed November 13, 2013, in

        which Appellee, Ezra Reuven, sought to recover $52,568.18 in damages and regain possessionof the

        premises. Service was effectuated on Appellants on November 21, 2013, by posting the address of 537

        N. 35th Street, Philadelphia, Pennsylvania.

                  Appellee obtained a judgment by default on December 17, 2013. Appellants filed a prose

        Petition to Open Judgment in Municipal Court on August 26, 2014 which was voided on September 9,

        2014, following their failure to act1 and a counseled Petition to Open Judgment by default on December

        30, 2014.2 The second petition was denied February 6, 2015, following a hearing before the Municipal

        Court.                                      Reuven Vs Mason Etal-OPFLD



                                                    I I Ill I 11111111111111111
                                                          15020281500020
        1   This information was obtainable only from the Municipal Court transcript. See, Notes of Testimony 2/6/15 at
        6-7.
        2   Counselentered his appearance October 9, 2014 but did not file his petition until December 30, 2014.
                                                                  1


COPIES SENT PURSUANT TO Pa.R.C.P. 236(b)           06/26/2015
        On March 27, 2015, Appellants filed a Motion to Strike/Open the Municipal       Court judgment,

arguing that the Municipal Court was without jurisdiction to enter the underlying judgment       as it was

not a landlord-tenant   matter; that the judgment was defective as service had not been perfected on

defendants; that the Municipal Court lacked jurisdiction because the matter in controversy exceeded

the Municipal Court's jurisdictional    maximum; that the Municipal Court had failed to take admissible

and/or testimonial substantiating      evidence; that Appellants had no notice of the hearing; and that the

complaint was defective as it had not attached the lease or other accompanying documents necessary

for a landlord-tenant   complaint.

        On April 20, 2015, Appellee filed an Answer in Opposition to Appellants' Motion to Strike,

arguing that neither the instant Petition nor any of Appellants' Municipal Court Petitions had been

timely filed, nor had Appellants offered a reasonable excuse for failing to attend the hearing in

Municipal Court. Further, Appellee argued that Appellants had not alleged that a review of the

Municipal Court record had demonstrated that the Court abused its discretion in denying the Petition.

Appellee denied all of Appellants' averments.

       On April 22, 2015, Appellants filed a Memorandum in Support of their Motion to Strike, arguing

that Appellants had not been properly served as service was effectuated by posting a property that had

been vacated, and additionally arguing that Appellee's response should be stricken as non-Local Rule

compliant.

       On May 18, 2015, following a review of the relevant pleadings as well as the record, this Court

denied Appellants' Motion to Strike.

       On June 3, 2015, Appellants filed a timely Notice of Appeal to the Superior Court of

Pennsylvania.

       On June 5, 2015, this Court issued its Order pursuant to Pa.R.A.P.      1925(b), directing Appellant

to file his Concise Statement of Matters Complained of on Appeal within twenty-one (21) days.




                                                        2
________ ,.             ,__,. ,. . . .----·-lit~-·----------j-· ·----------~-

          On June 23, 2015, Appellant filed a timely Statement of Matters Complained on Appeal,

   averring that this Court erred: in denying the motion to strike and/or open judgment; in not finding

   that the judgment was defective on its face as the judgment had been entered in Municipal Court as a

   landlord-tenant matter when the amount in controversy exceeded the Municipal Court's jurisdictional

   limits; in denying the motion when the underlying judgment was "entered upon a hearing with no

   evidence presented" and the complaint fails to conform to Municipal Court requirements; and in

   refusing a requested evidentiary hearing.



                                                 DISCUSSION

          This matter is an appeal from a lower court order denying Appellants' Petition to Strike and/or

   Open Judgment.

          A supplementary order granting or denying a petition to open a default judgment is appealable

   to the Court of Common Pleas, but the appeal is limited to a review of the record. Phila.Civ.R.

   1001(a)(3). The time to file an appeal from a supplementary order is within thirty (30) days after the

   date of the entry of the order on the dockets of the Municipal Court. Phila.Civ.R. 1001(c)(5). Such an

   appeal proceeds as a motion pursuant to Pa.R.C.P. 208.1     et seq. and Phila.Civ.R.   *208.2(c)   et seq.,
   and the appeal is limited to a determination by this Court whether the Municipal Court committed an

   error of law or abused its discretion in ruling on the petition or motion which is the subject of the

   appeal. Upon the issuance of a dispositive order by the Court of Common Pleas, the action shall be

   remanded to the Municipal Court for further proceedings consistent with the Order. Phila.Civ.R.

   1001(9)(2).

          Appellants' Petition to Strike and/or Open Judgment was denied February 6, 2015, and their

   appeal to this Court timely filed on February 25, 2015. On review, this Court is limited to a review of

   the record and whether or not the Municipal Court committed an error of law or abused its discretion in

   its Order denying Appellants' Petition.


                                                        3
        To obtain relief from the entry of a default judgment, the law provides two distinct remedies -

an aggrieved party may file a petition to strike the default judgment and/or a petition to open the

default judgment.   Mother's Rest. Inc. v. Krystkiewicz, 2004 PA Super 411, 861 A.2d 327, 336 (Pa.

Super. Ct. 2004). They are generally notinterchangeable; a petition to strike does not involve the

discretion of the court but is a demurrer to the record. Id A petition to open judgment, on the other

hand, is an appeal to the equitable powers of the court. Id The standard of appellate review is that of

abuse of discretion with regard to the petition to open only; the court's decision will not be reversed

absent an abuse of discretion or error of law. Erie Ins. Co. v. Bullard, 2003 PA Super 448, 839 A.2d

383, 386 {2003).

   I.      DENIAL OF PETmON TO STRIKE

        As noted above, a petition to strike is a demurrer to the record. Mother's Rest; Inc., 861 A.2d

at 336. Such a demurrer "admits all well-pleaded facts for the purpose of testing conclusions of law

drawn from those facts," and the court may only look at the facts of record at the time the judgment

was entered to decide if the record supports the judgment. Id A petition to strike may be granted only

if a fatal defect appears on the record. Id See also U.K. LaSalle/ Inc. v. tswtess. 421 Pa.Super. 496,

618 A.2d 447 (1992). "Importantly, a petition to strike is not a chance to review the merits of the

allegations of a complaint. Rather, a petition to strike is aimed at defects that affect the validity of the

judgment and that entitle the petitioner, as a matter of law, to relief." Oswald v. WB Pub. Square

Associetes. LLC, 2013 PA Super 289, 80 A.3d 790, 794 (2013). A petition to strike does not involve the

discretion of the court. Triangle Printing Co. v. Image Quest 730 A.2d 998, 999 (Pa. Super. 1999).

        Appellants argue that this Court should have stricken the judgment of the record as defects

were evidence on the face of the record, namely: the amount in controversy exceeded the Municipal

Court's jurisdictional limits; because service was not made on Appellants; and that the Complaint failed




                                                      4
__________ . . . _, _.,"'_    -·   __ ,_. __ _~"'   .,. . . ,_,..;_   ~-·-e (   _,_. .,. .   _.......,__._         '--···J,,.,.   _._ .   .._




     to conform to Municipal Court requirements.3 They argue that this case was not a landlord-tenant

     matter.

               A review of the record showed that the filed complaint provides that Appellee noted that there

     was a lease between Appellants and himself at 537 N. 35th Street, Philadelphia Pennsylvania, 19104;

     the lease was a non-residential oral lease that began June 1, 2012 for a term of a year or more.

     The complaint averred that Appellants were in possession of the property and refused to surrender

     possessionof the property. The Complaint included an attached exhibit containing itemization of

     unpaid rent as well as other damages incurred by Appellee, an invoice of the damages, as well as a

     police report filed by Appellee against Appellants. The case was docketed in Municipal Court as a

     landlord-tenant action. A non-military affidavit was filed the same day as the Complaint, and affidavits

     of service upon Appellants were filed November 27, 2013. Said affidavits indicated that service was

     made on Appellants on November 21, 2013 at 537 N. 35th Street, Philadelphia, Pennsylvania, by

     posting the property, pursuant to the Philadelphia Municipal Court rules which allow for landlord-tenant

     complaints to be served by posting the leased premises. See Phila. M.C.R. Civ.P. 111. A hearing was

     scheduled for December 17, 2013.

               From an examination of the record Appellants have pointed to no errors evident from the face

     of the record that would justify granting their petition. A complaint was filed in a landlord-tenant

     matter in Municipal Court, which allows for judgments of more than $5,000.00 in matters arising under

     the subsection;4 Appellee averred that a lease was not attached because it was an oral lease, and

     under the Landlord Tenant Act oral leases are permitted for leases less than three (3) years;5

     Appellants were served at a Property where it was averred that they were in possession and refused to

     surrender possession; as well as police reports and invoices of damages. Again, as noted above, a



     3 In Appellant's original petition, the only defects Appellant challenged with regard to the Complaint were "it did
     not even attach the claimed violated lease nor other accompanying documents requisite to file a putative (denied)
     landlord-tenant complaint before the Municipal Court." See Appellants' Petition to Strike, ,i 7(f).
     4 See 42 Pa.C.S. § 1123.
     5 See 68 P.S. § 250.201.

                                                                          5
Petition to Strike is limited to a review of the available record and is not within the discretion of the

Court. A review of Phila. M.C.R. Civ.P. 109 as well as the available record shows that the Complaint

was substantially in conformance with the Rules and that Appellants were properly served in

accordance with Phila M.C.R. Civ. P. 111.

         Consequently,   the Municipal Court did not err in denying Appellants' Petition to Strike, and

neither did this Court err in refusing to find an abuse of discretion in that decision.

   II.      DENIAL OF PETITION TO OPEN

         Petitions to open judgment are appeals to the discretion of the trial court and will not be

reversed absent a manifest abuse of discretion or error of law. Erie Ins. Co. v. Bullard, 2003 PA Super

448, 839 A.2d 383, 386 (2003). Petitions to open judgment must show that: the petition was promptly

filed; the failure to appear or file a timely answer must be excusable; the party seeking to open the

judgment must show a meritorious defense. Mother's Rest./ Inc., 861 A.2d at 336. The Court may

consider facts not before it at the time judgment was entered. Id.

         a. Prompt Filing

         The timeliness of a petition to open is measured from the date that notice of the entry of

default was received; while there is not a specified time period, the court should consider the length of

time between discovery of the entry of default, and reason for the delay. Myers v. Wells Fargo Ban~

N.A., 2009 PA Super 241, 986 A.2d 171, 176 (2009). Appellants do not aver when they discovered the

default judgment. Judgment was entered December 17, 2013 and the first Petition to Open was filed

August 26, 2014. Thus, a time period of two hundred fifty-two (252) days passed between the entry of

Judgment and the first Petition to open. Appellant then filed a counseled petition on December 30,

2014, three hundred seventy-eight (378) days after the entry of the default judgment.

         Again, as Appellants have not averred when they discovered the entry of judgment, this Court

cannot say with certainty whether the filing was prompt. However, from the docket alone, it appears




                                                       6
that the petition was not promptly filed and without further explanation, Appellant thus fails the first

prong.

          b. Reasonable Excuse

          Appellants claim that they did not receive service of the Complaint nor did they have notice of

the Court date. However, the record reflects that Appellants were served by posting of the Property of

which they had possession on November 21, 2013, almost a month prior to the court date. The

Complaint itself had notice of said Court date and, as noted above, the leased premises were posted by

a process server in accordance with the Philadelphia Municipal Court rules. Consequently, Appellants

have not plead a reasonable excuse.

          c. Meritorious Defense

         The requirement of a meritorious defense is only that a defense must be pleaded that if proved

at trial would justify relief. Smith v. Morrell Beer Distributor~ Inc., 2011 PA Super 183, 29 A.3d 23, 26

(2011). A defendant must set forth such a defense in "precise, specific, and clear terms." Id In their

counseled petition before the Municipal Court, Appellants aver simply that they are not liable in any

respect, that they are not in breach of the lease agreement but that Appel lee is in breach of the lease

agreement, and that Appellants were not the cause of the claimed damage. However, in their petition,

Appellants made no argument or averment as to why Appellee was in breach of the lease agreement.

         Thus, Appellants are not entitled to open the default judgment as they have not met the

requirements of the tripartite test.

   III.      DEFECTS IN JUDGMENT

         Appellants also aver that this Court erred in denying the motion when the "underlying judgment

was entered upon a hearing with no evidence presented." It is disingenuous of Appellants to argue that

no evidence was presented at the hearing considering that Appellants defaulted. As noted above at

length, when deciding a denial of a Petition to Strike and/or Open Judgment based upon a decision of




                                                      7
-------·---.. -·----,--------·------··----.--·~-··- ---·- ~--                   ....   ....   . . ..   --




     the Philadelphia Municipal Court this Court's examination is limited to the record. From the record

     alone, judgment was properly entered.

        IV.       HEARING

              Finally, Appellants aver that this Court erred in refusing a requested evidentiary hearing.

     However, Appellants did not request an evidentiary hearing anywhere within their Petition. Though a

     petitioner may seek the issuance of a Rule to Show Cause with such a petition, pursuant to Pa.R.C.P.

     206.S(b), Appellants did not attach a proposed order in the form prescribed by subdivision (d).

     Consequently, this Court did not err in ruling upon Appellants' Petition without holding an evidentiary

     hearing.



                                                   CONCLUSION

              For all of the reasons stated above, this Court's decision should be affirmed and Appellants'

     appeal dismissed.




                                                                   BY THE COURT:



     DATE:       ~           c;l!f J ;}!) /5"°




                                                          8
