J-A04028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CITIZENS BANK OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DONG M. RIM, AS ADMINISTRATOR
OF THE ESTATE OF YOUNG WOON RIM,
DECEASED

                            Appellant                 No. 760 EDA 2016


                 Appeal from the Order Dated January 20, 2016
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2015-03289

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.:                       FILED SEPTEMBER 08, 2017

        Appellant Dong M. Rim, as administrator of the estate of Young Woon

Rim, appeals from the order denying his petition to open the default

judgment entered in the mortgage foreclosure action initiated by Appellee

Citizens Bank of Pennsylvania. We affirm.

        In 2011, Young Woon Rim mortgaged a residential property located in

Ambler, Pennsylvania (“Ambler property”), for a principal amount of

$228,500. Trial Ct. Op., 8/19/16, at 1. The Ambler property was later

encumbered by a second mortgage owned by Nationstar Mortgage, LLC.

        Young Woon Rim died in June 2014, and in July 2014, Dong M. Rim

(“Rim”), was qualified as the administrator of the estate. Id. at 2. In his

____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
J-A04028-17


petition for probate and grant of letters testamentary, Rim verified his

address as 2200 Arch Street, #907-08, Philadelphia, PA 19103 (“2200 Arch

Street”). Id.

       On January 6, 2015, as the Ambler property loan had fallen into

default,1 Citizens sent an Act 91 notice to Rim.2 The notice was sent to 2200

Arch Street via certified mail. Trial Ct. Op. at 2.3 Citizens received no

response to the Act 91 notice.

       On February 20, 2015, Citizens initiated a mortgage foreclosure action.

Trial Ct. Op. at 2. On March 19, 2015, Citizens filed an affidavit stating that

the complaint and notice to defend4 were served upon Rim on March 17,

2015, at 2200 Arch Street. Aff. of Service, 3/19/15. Attached to the affidavit

was a copy of the notarized return of service.5 The return states that Rim

was served at 2200 Arch Street on March 17, 2015, at 9:25 AM. It specifies

that the process documents were given to the “Manager/Clerk of place of
____________________________________________
1
 According to the complaint, the mortgage fell past due in August 2014.
Compl., 2/20/15, at ¶ 12.
2
  The Homeowner’s Emergency Mortgage Act, “Act 91,” provides, among
other things, that a homeowner must be notified that his or her mortgage is
in default and how to contact the lender prior to the commencement of a
foreclosure action. See generally 35 P.S. §§ 1680.402c to 1680.403c.
3
  Citizens also sent the Act 91 notice to two other known heirs of Young
Woon Rim at their addresses, and a fourth notice to the Ambler property
addressed to “[a]ny and all unknown heirs.” Trial Ct. Op. at 2.
4
  A notice to defend advises a defendant that he or she has twenty days to
respond to the complaint. See Pa.R.C.P. 1018.1.
5
  A “return of service” or “return of no service” specifies whether service of
process was successfully made upon a defendant. See Pa.R.C.P. 405.

                                           -2-
J-A04028-17


lodging in which Defendant resides.” It does not state the name of the

person to whom the documents were given. The return also states that on

March 12, 2015, the server had attempted to serve Rim at the same

location, but that “As per the Concierge the Defendant was not home.”

Citizens received no response to the complaint and notice to defend.

       On April 8, 2015, Citizens sent Rim a notice of its intent to seek entry

of a default judgment based on Rim’s failure to plead to the complaint. Trial

Ct. Op. at 3.6 The notice was sent to 2200 Arch Street via first class regular

mail. See Praecipe to Enter Default J., 4/23/15, at ¶ 4. Citizens received no

response to the notice of its intent to seek a default judgment.

       On April 23, 2015, Citizens filed a praecipe to enter a default

judgment. Trial Ct. Op. at 3. Judgment was entered against Rim in the

amount of $239,453.34, plus interest and the costs of suit. Id.

       On June 3, 2015, Citizens filed a praecipe for a writ of execution,

requesting a sheriff’s sale of the Ambler property, which was granted. On

June 16, 2015, Citizens attempted to serve a notice of sale upon Rim at

2200 Arch Street, and was informed by security personnel that Rim was no

longer living there. Citizens also mailed a copy of the notice of sale to the

2200 Arch Street address.



____________________________________________
6
 Notice must be given to the defendant and his or her attorney at least ten
days before the plaintiff files a praecipe for entry of a default judgment. See
Pa.R.C.P. 237.1.

                                           -3-
J-A04028-17


       Meanwhile, on June 5, 2015, Nationstar filed a complaint in mortgage

foreclosure against Rim for the same Ambler property.

       On September 10, 2015, Rim’s counsel entered an appearance on the

record. Trial Ct. Op. at 3. On October 13, 2015, Rim filed a petition 7 to open

the default judgment. Id. The petition stated, in pertinent part:

       2. Service of the Complaint was made by the sheriff’s
       department on March 17, 2015[,] on a “manager/clerk or place
       of lodging in which Defendant resides” at the location of 2200
       Arch Street, Philadelphia, PA 19103. A true and correct copy of
       the [Return of Service] is attached hereto as Exhibit “B.”

       3. [Rim] no longer resides at 2200 Arch Street, Philadelphia, PA
       19103 nor was he personally served with a copy of the
       Complaint at that address.

       4. Further, [Rim] does not know who was actually served and
       referenced in the [Return of Service] as the [Return of Service]
       does not contain a name of the individual served.

       5. Consequently, [Rim] has never been properly served with the
       Complaint, Praecipe, or default filings.

       6. Had [Rim] been properly served, [Rim] would have filed a
       response disputing [Citizens’] claims and asserting that the
       amounts claimed to be due were incorrect.

       7. [Rim] first became aware of this suit upon the subsequent
       [foreclosure] action in Montgomery County [filed by Nationstar].

          ...

       9. [Rim] has acted expeditiously in attempting to open the
       default in this matter, as [Rim] was improperly served and as a
       result was not aware of the litigation until after the Judgment
       had been entered.
____________________________________________
7
  Rim’s petition was styled as a motion rather than a petition. As the relief
sought is typically by petition, see Pa.R.C.P. 237.3, we will refer to Rim’s
motion as a petition.

                                           -4-
J-A04028-17



        10. [Rim]’s conduct was not intended to cause unnecessary
        delay. Rather, he did not respond to the Complaint because it
        was not properly served with any of the necessary paperwork.

Mot., 10/13/15, at ¶ 2-10.

        The court issued a Rule to Show Cause on October 21, 2015. Trial Ct.

Op. at 3-4. The order provided Citizens with twenty days to respond to the

petition to open, declared that the petition to open would be decided

according to Pa.R.C.P. 206.7,8 and instructed that discovery be completed

within sixty days of Citizens’ answer. Id.

        Citizens filed a timely response and memorandum of law to the

petition to open on November 10, 2015. Trial Ct. Op. at 4. Citizens denied

that the service of the complaint and notice to defend had been improper

and denied that Rim was unaware of the instant foreclosure action until the

filing of the Nationstar foreclosure action. Resp., 11/10/15, at ¶ 2-7. Citizens

pointed out that in Rim’s petition to open, Rim did not technically claim that

he was not a resident of 2200 Arch Street on March 17, 2015, the time

that service was made there. See Mem. of Law, 11/10/15, at 6-7
____________________________________________
8
    This rule governs the procedure after the issuance of a rule to show cause:

        If an answer is filed raising disputed issues of material fact, the
        petitioner may take depositions on those issues, or such other
        discovery as the court allows, within the time set forth in the
        order of the court. If the petitioner does not do so, the petition
        shall be decided on petition and answer and all averments of fact
        responsive to the petition and properly pleaded in the answer
        shall be deemed admitted for the purpose of this subdivision.

Pa.R.C.P. 206.7(c).

                                           -5-
J-A04028-17


(unpaginated).   Citizens   attached   multiple   exhibits   in   support   of   its

contention that Rim was in fact a resident of 2200 Arch Street on March 17,

2015, including the estate dockets listing 2200 Arch Street as Rim’s address

on December 2014 and November 2015; the certified mail receipt, dated

January 6, 2015, for the Act 91 Notice, which displays Rim’s signature; the

Philadelphia Office of Property Assessment listing Rim as residing there as of

February 19, 2015; the return of service from March 17, 2015, which

indicated that on March 12, 2015, personnel at 2200 Arch Street informed

that Rim was not “home” on that date; and a certification from the

Postmaster of Philadelphia dated July 15, 2015, stating that there was no

change of Rim’s address from 2200 Arch Street.

      Citizens also denied that Rim promptly filed his petition to open. Resp.,

11/10/15, at ¶ 6-10. Citizens argued that even if Rim did not receive actual

notice of the suit until the Nationstar action, the Nationstar action was filed

on June 5, 2015, well before Rim filed the petition to open. See Mem. of

Law, 11/10/15, at 6 (unpaginated). Citizens’ counsel also averred that Rim

had contacted her office by telephone on July 16, 2015, after someone from

2200 Arch Street had hand-delivered to him the June 16, 2015 notice of the

impending sheriff’s sale of the Ambler property. Id. at 3. According to

Citizens’ counsel, Rim indicated that he had recently moved out of the

building. Counsel sent Rim a copy of the notice of sale via e-mail and Rim

acknowledged receipt; a copy of the e-mail exchange was attached to


                                       -6-
J-A04028-17


Citizens’ response to the petition to open. See Resp., Ex. B.9 Despite this

July 2015 contact with Rim, Rim’s counsel did not enter an appearance until

September 10, 2015, and the petition to open was not filed until October 13,

2015. Citizens argued that under these facts, the filing of the petition to

open should not be considered timely. Mem. of Law, 11/10/15, at 3, 6.

       Finally, Citizens denied Rim’s assertion that he had a meritorious

defense to the mortgage foreclosure action, specifically a challenge to the

amounts due on the mortgage. Resp., 11/10/15, at ¶ 6-7; Mem. of Law,

11/10/15, at 8-9 (citing Landau v. Western Pennsylvania National

Bank, 282 A.2d 335, 340 (Pa. 1971), for the proposition that “[t]he entry of

summary judgment is appropriate even if the mortgagor has not admitted in

his answer that the total amount of the indebtedness as pled in the

foreclosure complaint is correct”). Citizens also complained that Rim had not

attached to his petition to open a verified copy of his prospective answer to

the mortgage foreclosure action setting forth his defenses, in contravention




____________________________________________
9
  Counsel also requested a new mailing address from Rim, which Rim
provided; however, when Citizens attempted to send the notice of sale
there, it was returned. Citizens attempted service at the new address on
August 29, 2015, but the return of no service stated that service was not
possible because the building at that address was “vacant and in the process
of being rehabilitated.” Citizens attempted to verify this new address with
the postmaster on August 27, 2015, but the postmaster responded on
September 3, 2015, that no such address existed.


                                           -7-
J-A04028-17


of Pa.R.C.P. 237.3.10 Mem. of Law, 11/10/15, at 8. According to Citizens,

this flaw was fatal to Rim’s petition.

        Neither party conducted discovery regarding the allegations in the

petition to open. Subsequently, on January 20, 2016, following argument,

the court denied the petition. Trial Ct. Op. at 4. Rim filed a timely notice of

appeal and has raised the following issues:

        1. Whether the trial court erred in denying [Rim]’s Petition to
        Open the Default Judgment because the Complaint was not
        properly served on [Rim] pursuant to the Pennsylvania Rules of
        Civil Procedure[.]

        2. Whether the trial court erred in [] determining that [Citizens]
        properly made service upon [Rim] in the manner proscribed by
        Pa.R.C.P. 402, by handing a copy of the complaint at the former
        residence of [Rim] to the clerk or manager of the apartment
        house.

        3. Whether the trial court erred in denying [Rim]’s Petition to
        Open because [Rim] had a reasonable excuse for its delay in
        filing the petition, as he did not become aware of the underlying

____________________________________________
10
     The relevant portion of the rule states:

        (a) A petition for relief from a judgment . . . of default entered
        pursuant to Rule 237.1 shall have attached thereto a copy of the
        complaint, preliminary objections, or answer which the petitioner
        seeks leave to file.

        (b) . . .

           (2) If the petition is filed within ten days after the entry of
           a default judgment on the docket, the court shall open the
           judgment if one or more of the proposed preliminary
           objections has merit or the proposed answer states a
           meritorious defense.

Pa.R.C.P. No. 237.3.

                                           -8-
J-A04028-17


      matter until [he] was put on notice of a second mortgage
      foreclosure action[,] since he was not served.

      4. Whether the trial court erred in denying [Rim]’s Petition to
      Open because [Rim] had a meritorious defense to the allegations
      in the underlying complaint.

Rim’s Brief at 3 (suggested answers omitted).

      Our standard of review follows:

          When reviewing a trial court’s disposition of a petition to open
      a default judgment, the appellate court must 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.

Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1208-09 (Pa. Super.

1993) (citations omitted).

      Rim claims that the trial court should have granted his petition to open

because service was defective and the court therefore lacked jurisdiction to

enter judgment against him. Rim’s Brief at 11. He claims that service was

improper for two reasons: (1) the person to whom the process documents

were given was unidentified by name in the return of service, and (2) Rim

did not reside at 2200 Arch Street on March 17, 2015. Id. Rim contends that

although his petition did not facially state the latter assertion, it is the only

logical interpretation of the petition, in which Rim verified that he has never

                                      -9-
J-A04028-17


received process and that he no longer resides at 2200 Arch Street. See id.

at 12 n.4; Rim’s Reply Brief at 4, 7-9. Rim states that he was unable to

conduct discovery to support his contentions, “such as taking the deposition

of the person allegedly served[,] because they were not identified [in the

return of service].” Id. at 7. However, Rim argues that the verifications

made in his petition to open should be considered conclusive evidence. Id.

       Rim also attaches to his brief to this Court the copy of a residential

lease. The lease purports to rent the premises at issue, 2200 Arch Street,

Unit 907-08, to another person from August 1, 2014, through July 31, 2016.

Rim contends that this Court may consider the lease as evidence because,

when deciding a petition to open, “a court can consider facts not before it at

the time the judgment was entered.” Rim’s Reply Brief at 10 (citing

Mother’s Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 336 (Pa. Super.

2004) (en banc)). Rim claims that the combination of the factual

verifications made in his petition and the lease he now presents to this Court

“undermine and contradict” Citizens’ allegation that he received proper

service at 2200 Arch Street. Rim’s Brief at 12, 16.

       Furthermore, Rim claims that he did not delay in filing his petition to

open. Rim contends that he was not aware of the instant foreclosure matter

until the filing of the Nationstar action on June 5, 2015. Rim’s Brief at 21. 11
____________________________________________
11
   Rim asserts that the earliest evidence that he had notice of the instant
action is as of July 16, 2015, although he does not actually allege that he did
not know of the action until that date. See Rim’s Brief at 21.

                                          - 10 -
J-A04028-17


Rim claims that the lapse between this date and the filing of his petition to

open, a total of 4 months and 8 days, is excused by the time it took him to

contact counsel for Citizens, acquire his own counsel, and file the petition.

Id. He claims that “a period of just over three months[12] should be

considered timely in a mortgage foreclosure action in align[ment] with past

decisions and in equity considering the valuable property at stake.” Id. at

23.

       Finally, Rim contends that he has meritorious defenses to the

mortgage foreclosure action. He claims these defenses “include but are not

limited to being properly served, challenging the averment of default,

denying receiving the Act 91 notice, and denying whether [Citizens] hold[s]

the original [mortgage] note.” Rims’ Brief at 25-26. Although he did not

attach a copy of a proposed answer or proposed preliminary objection to his

petition to open, Rim claims that this flaw is not fatal because this would be

an “overly strict” interpretation of Rule 237.3. Id. at 26-27 (citing Stauffer

v. Hevener, 881 A.2d 868, 869 (Pa. Super. 2005)).

       Our analysis of whether the trial court erred or abused its discretion in

denying the petition to open is guided by the following:

       Ordinarily, if a petition to open a judgment is to be successful, it
       must meet the following test: (1) the petition to open must be
       promptly filed; (2) the failure to appear or file a timely answer
       must be excused; and (3) the party seeking to open the
____________________________________________
12
   As noted above, the petition to open was filed approximately three
months after Rim contacted Citizens’ counsel via e-mail, which is the earliest
“evidence” of notice of the instant petition.

                                          - 11 -
J-A04028-17


      judgment must show a meritorious defense. However, where
      the party seeking to open a judgment asserts that service
      was improper, a court must address this issue first before
      considering any other factors. If valid service has not been
      made, then the judgment should be opened because the court
      has no jurisdiction over the defendant and is without power to
      enter a judgment against him or her. In making this
      determination, a court can consider facts not before it at the
      time the judgment was entered.

Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa.

1997) (citations omitted, emphasis added); accord Century Sur. Co. v.

Essington Auto Ctr., LLC, 140 A.3d 46, 54 (Pa. Super. 2016). “If,

however, the court concludes that proper service was made, it must then

consider all three parts of the tripartite test in the light of all of the

circumstances and equities of the case before deciding whether to open the

judgment.” Am. Exp. Co. v. Burgis, 476 A.2d 944, 951 (Pa. Super. 1984).

If a petition to open a default judgment fails to fulfill any one prong of this

test, then the petition must be denied. Myers v. Wells Fargo Bank, N.A.,

986 A.2d 171, 178 (Pa. Super. 2009); see also McFarland v. Witham, 544

A.2d 929, 930–31 (Pa. 1988) (failure to provide justifiable explanation for

failing to respond to complaint in a timely manner was sufficient basis to

deny petition); US Bank N.A. v. Mallory, 982 A.2d 986, 996–97 (Pa.

Super. 2009) (affirming denial of petition to open without needing to analyze

third prong of test).

      Rule 402 of the Pennsylvania Rules of Civil Procedure provides that

original process may be served by handing a copy “at the residence of the

defendant to the clerk or manager of the . . . apartment house . . . at which
                                  - 12 -
J-A04028-17


he resides.” Pa.R.C.P. 402(a)(2)(ii). Rule 405 mandates that the return of

service “shall set forth the date, time, place and manner of service, the

identity of the person served and any other facts necessary for the court to

determine whether proper service has been made.” Pa.R.C.P. 405(b). But

where a return of service fails to specifically identify by name the person

served, that failure alone does not necessarily invalidate the service. See

Pincus v. Mut. Assur. Co., 321 A.2d 906, 910 (Pa. 1974); accord

Podolak v. Artisan’s Valve Repair, Inc., 470 A.2d 567, 568 (Pa. Super.

1983); see also Miller v. Carr, 292 A.2d 423, 425 (Pa. Super. 1972).13

       Whether process was delivered to the appropriate person and place

under Rule 402 is dispositive on the issue of whether service was sufficient

to invoke the trial court’s jurisdiction. See Anzalone v. Vormack, 718 A.2d

1246, 1248 (Pa. Super. 1998). A defendant may attack service with an

allegation that the person served was not the actual clerk or manager of the

residence or that the residence served was not the actual residence of the

defendant. Id. at 1249. The defendant bears the burden to prove such

allegations through depositions or extrinsic evidence. Id.; see also Burgis,

476 A.2d at 950. (“[A]s to whether sufficient evidence was produced to

establish that the ‘adult’ [indicated in the return of service] was actually in

charge of [the defendant’s] residence, we note that it is [the defendant’s]
____________________________________________
13
   Failure to identify an individual by name does not render a return of
service defective, and an actual defect in a return of service would not
ordinarily divest a court of jurisdiction if the fact of service could be
established. See Cintas, 700 A.2d at 918.

                                          - 13 -
J-A04028-17


burden to prove otherwise. Here, [the defendant] has fallen short of

establishing such a negative”); Am. Vending Co. v. Brewington, 432 A.2d

1032, 1035 (Pa. Super. 1981) (service deemed proper where the record was

devoid of any extrinsic evidence to buttress the defendants’ testimony that

the “adult female” indicated in the return of service was not in charge of

defendants’ residence).

      As a prefatory matter, we address Rim’s request that this Court

consider, for the first time on appeal, a lease that purportedly establishes he

did not reside at 2200 Arch — evidence which was not presented to the trial

court. Rim misunderstands the import of our decisions stating that “a court

can consider facts not before it at the time the judgment was entered.” See

Rim’s Reply Brief at 10 (quoting Mother’s Rest., Inc., 861 A.2d at 336);

see also Cargitlada v. Binks Mfg. Co., 837 A.2d 547 (Pa. Super. 2003) (in

resolving a petition to open, the trial “court may consider matters dehors the

record”). Those decisions do not authorize Rim to introduce, for the very first

time on appeal, evidence that was never presented to and made part of the

trial court’s record; rather, they confirm that the trial court’s scope of

review over a petition to open a judgment is not limited to the record that

existed at the time judgment was entered and that the trial court is

permitted to consider extra-record evidence in support of a petition to open.

See Cintas, 700 A.2d at 919 (a petition to open judgment is appropriate

where a party “seeks to challenge the truth of factual averments in the

record at the time judgment was entered”).
                                  - 14 -
J-A04028-17


      In this case, the trial court would have been permitted to consider the

lease as evidence if it had been provided to that court in support of Rim’s

petition to open. But because the lease was not provided for consideration

by the trial court, we lack the authority to review it on appeal. See Temple

Univ. v. Zoning Bd. of Adjustment of Cheltenham Twp., 199 A.2d 415,

417 (Pa. 1964) (“appellant has violated the time-honored rule that evidence

not introduced in the court below cannot now be submitted on appeal.”);

see also Nevling v. Natoli, 434 A.2d 187, 188 n.1 (Pa. Super. 1981). We

therefore will not consider the lease.

      Putting the lease aside, we turn to whether the trial court correctly

considered the evidence of record. The trial court denied Rim’s petition to

open after concluding that service of the mortgage foreclosure complaint

was not defective. In doing so, it examined the allegations in the petition to

open and the averments pleaded by Citizens in the response, pursuant to

Rule 206.7. First, the court found that Rim’s petition admitted that “[s]ervice

of the [c]omplaint was made . . . on March 17, 2015[,] on a ‘manager/clerk

[of] place of lodging in which [Rim] resides,” see Mot., 10/13/15, at ¶ 1,

and that this was a proper form of service under Pa.R.C.P. 402(a)(2)(ii). See

Trial Ct. Op. at 9. Next, the court noted that the petition to open does not

actually allege that Rim did not reside at 2200 Arch Street on March 17,

2015, the date of service. Id. at 6. The trial court also found that —

      . . . despite being provided the opportunity to conduct discovery
      to support his claim, which was refuted by [Citizens’] Response,
      [Rim] did not. Absent creating such a record, [Citizens’
                                     - 15 -
J-A04028-17


       r]esponse that service was made on [Rim] at his residence is
       deemed admitted. See Pa. R.C.P. 206.7(c).

              ...

       [O]nce [Citizens] timely filed an Answer to [Rim]’s Petition, the
       burden shifted to [Rim] to rebut [Citizens’] averments of fact
       with the requisite pleading and/or discovery necessary.

              ...

       [Rim] for his part inexplicably neglected to avail himself of the
       opportunity to take depositions on the issue of service and/or
       other such discovery to attempt to rebut any of [Citizens’]
       averments of fact. Thus, in accordance with Pa. R.C.P. 206.7,
       the [c]ourt properly deemed admitted [Citizens’] averments that
       it effectuated service of original process upon [Rim] under the
       applicable rules of civil procedure. Based on [Rim]’s failure to
       rebut [Citizens’] averments with the requisite evidence and
       guided by Pa. R.C.P. 206.7’s burden[-]shifting paradigm, the
       Court properly determined that [Rim] was properly served the
       Complaint on March 17, 2015, and lacked a reasonable
       explanation or excuse for his default.

Id. at 8, 11, 12.14

       We agree with the foregoing and discern no abuse of discretion by the

trial court. Citizens’ response made averments of material fact – namely that

2200 Arch Street was Rim’s residence on the date of service (despite Rim’s
____________________________________________
14
   The trial court also concluded that because Rim was attacking the validity
of service, he should have filed a petition to strike the default judgment
rather than a petition to open. See Trial Ct. Op. at 6. However, Rim attacks
the factual averments in the return of service, rather than the validity of the
return on its face. Where, as here, “a party seeks to challenge the truth of
factual averments in the record at the time judgment was entered, then the
party should pursue a petition to open the judgment, not a petition to strike
the judgment.” Cintas, 700 A.2d at 919; see also Podolak, 470 A.2d at
568 n.2 (the answer to the question of whether the person served was
actually in charge of defendant’s place of business does not typically appear
on the face of the record and therefore provides grounds for opening a
default judgment rather than striking judgment).

                                          - 16 -
J-A04028-17


effort to skirt around this issue in his petition to open by claiming only that

he “no longer” lived there) and that the process documents were given to

the manager of that residence. Following that response, Rim failed to

conduct discovery or provide evidence to the trial court contradicting

Citizens’ averments of fact. Rim did not adduce any evidence attesting to his

actual residence on March 17, 2015.15 Nor did Rim attempt to depose the

process server or anyone at 2200 Arch Street who could have potentially

testified regarding whether the process documents were handed to the

wrong individual. Based on the record before it and the evidentiary burden

borne by Rim, see Anzalone, 718 A.2d at 1248, and Pa.R.C.P. 206.7(c),

the trial court correctly concluded that 2200 Arch Street was Rim’s actual

residence on March 17, 2015, that process was handed to the manager of

that address, and that service was not defective. See Burgis, 476 A.2d at

950; Brewington, 432 A.2d at 1035.

        As we find that the trial court did not err in concluding that service was

proper and that it had jurisdiction to enter a default judgment against Rim,

we consider the merits of Rim’s petition to open within the three-factor

framework. See Burgis, 476 A.2d at 951. For ease of disposition, we begin

with the second factor, which requires that Rim explain his failure to file a

timely answer to the foreclosure complaint. See Cintas, 700 A.2d at 919.

“Whether an excuse is legitimate is not easily answered and depends upon

____________________________________________
15
     Rim has yet to definitively identify his purported address on that date.

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J-A04028-17


the specific circumstances of the case.” Castings Condo. Ass’n, Inc. v.

Klein, 663 A.2d 220, 223-24 (Pa. Super. 1995) (citation omitted).

     Rim’s only explanation is that he did not receive actual notice of the

instant foreclosure action until the Nationstar action was filed, which was

after the default judgment was entered against him. The trial court

concluded that Rim in fact received proper service in March 2015 and

therefore lacked a reasonable explanation or excuse for his failure to

respond. Trial Ct. Op. at 12. Because Rim has not supplied any record

evidence to establish the date by which he received actual notice of the

Citizens action, we agree with the trial court’s conclusion that Rim has not

stated a reasonable explanation or excuse.

     As Rim has failed to establish that the trial court lacked jurisdiction or

provide a legitimate excuse for his failure to answer, we affirm the order of

the trial court denying Rim’s petition to open the default judgment. See

Myers, 986 A.2d at 178.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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