J-S30001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WESLEY MARTINEZ                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KENYA NAHEENA LINDSAY AND                :
 MYNISHIA N. HAMMOND                      :
                                          :   No. 3307 EDA 2018
                                          :
 APPEAL OF: KENYA NAHEENA                 :
 LINDSAY                                  :

              Appeal from the Order Entered October 31, 2018
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): May Term, 2017 No. 002044

 WESLEY MARTINEZ                          :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KENYA NAHEENA LINDSAY AND                :
 MYNISHIA N. HAMMOND                      :
                                          :   No. 3528 EDA 2018
                    Appellant             :

              Appeal from the Order Entered November 9, 2018
            In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): May Term, 2017 No. 002044


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                      FILED OCTOBER 04, 2019

      Appellant, Kenya Lindsay, appeals from the trial court’s denial of her pro

se and counseled motions to open the default judgment entered against her.

After careful review, we conclude that the trial court did not abuse its

discretion and therefore affirm.
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       Appellee, Wesley Martinez, claimed that he was driving his motorized

scooter when a car driven by Appellant struck him.1        Appellee served his

complaint by posting it at Appellant’s last two known addresses after the trial

court granted permission for alternate service. Appellant did not file a timely

response to Appellee’s complaint; accordingly, Appellee entered default

judgment against Appellant.

       Approximately ten months later, after an arbitration award was entered

against her, Appellant filed a pro se petition to open the default judgment.

She filed a second, counseled petition to open two months later.         In both

petitions, she argued that she did not have notice of Appellee’s complaint, did

not understand the legal ramifications of the complaint when she did receive

it, and had promptly filed her petition to open after learning of the default

judgment.

       After a rule to show cause hearing, the trial court found that the record

established Appellant had notice of the default judgment at least four months

before she filed her first petition to open. On October 31, 2018, the trial court

denied the pro se petition to open default judgment. On November 9, 2018,

the court denied the counseled petition. This timely appeal followed. 2


____________________________________________


1 Mynishia Hammond, also listed as a defendant in the complaint, was also
allegedly in the car at the time of the accident. Appellee dismissed his claim
against Hammond by stipulation.
2 The trial court did not order Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). It issued its opinion on
December 13, 2018. See Pa.R.A.P. 1925(a).

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      Appellant raises two questions on appeal:

      1. Whether the trial court erred or abused its discretion in denying
         [Appellant’s] petitions to open default judgment where she
         asserted a meritorious defense, provided a reasonable
         explanation for her failure to respond and equitable
         circumstances exist such that default may be opened
         regardless of the time that may have elapsed between entry of
         the judgment and filing of the petition to open?

      2. Whether the trial court erred or abused its discretion in denying
         [Appellant’s] counseled petition to open default judgment as
         procedurally defective under Pa.R.C.P. 206.1(b) where this
         Rule was not raised in opposition to the petition and where such
         a ruling effectively denied an indigent defendant the benefits
         of pro bono counsel?

Appellant’s Brief, at 2-3.

      In her first issue, Appellant claims that the trial court abused its

discretion when it did not grant her petitions to open default judgment.

Specifically, she contends that she asserted a meritorious defense to the

action—she was not at the accident; and a reasonable explanation for not

responding—she did not know why she received the filings because she was

not involved. She argues that the court should excuse her failure to timely

petition to open the judgment because she was pro se and did not understand

why she was receiving the filings. Therefore, she claims that the court abused

its discretion in not opening the default judgment. See Appellant’s Brief, at

10-15. We disagree.

      Our standard of review for a petition to open default judgment is well

settled.

            A petition to open a default judgment is an appeal to
            the equitable powers of the court, and absent an error

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            of law or a clear, manifest abuse of discretion, it will
            not be disturbed on appeal. An abuse of discretion
            occurs when a trial court, in reaching its conclusions,
            overrides or misapplies the law, or exercises judgment
            which is manifestly unreasonable, or the result of
            partiality, prejudice, bias or ill will.

            Generally speaking, a default judgment may be opened if
      the moving party has (1) promptly filed a petition to open the
      default judgment, (2) provided a reasonable excuse or
      explanation for failing to file a responsive pleading, and (3)
      pleaded a meritorious defense to the allegations contained in the
      complaint.

            With regard to the first prong, whether the petition to open
      was timely filed, we note:

            The timeliness of a petition to open a judgment is
            measured from the date that notice of the entry of the
            default judgment is received. The law does not
            establish a specific time period within which a petition
            to open a judgment must be filed to qualify as timely.
            Instead, the court must consider the length of time
            between discovery of the entry of the default
            judgment and the reason for delay.

                                  *    *    *

            In cases where the appellate courts have found a
            “prompt” and timely filing of the petition to open a
            default judgment, the period of delay has normally
            been less than one month.

Kelly v. Siuma, 34 A.3d 86, 91-92 (Pa. Super. 2011) (citations omitted).

      With respect to the second prong, this court has held that: “whether an

excuse is legitimate is not easily answered and depends upon the specific

circumstances of the case. The appellate courts have usually addressed the

question of legitimate excuse in the context of an excuse for failure to respond

to the original complaint in a timely fashion.” Myers v. Wells Fargo Bank,


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Nat’l Ass’n, 986 A.2d 171, 176 (Pa. Super. 2009) (citation and brackets

omitted).

      Appellant argues that the confluence of non-traditional service and her

pro se status justify her delayed filings. In contrast, the trial court noted that

nine months elapsed between Appellant receiving notice of the entry of default

and the filing of her first petition to open. See Trial Court Opinion, 12/13/18,

at 3. Further, the court found that Appellant had actual notice of the default

judgment no later than the date she filed an appeal from the arbitrator’s

award. See id. at 3 n.2. Because she did not file her first petition to open

until four months after that date, the court concluded Appellant did not act

promptly to preserve her rights. See id.

      These findings are supported by the record.          And the trial court’s

reasoning is similar to that utilized in cases we have affirmed in the past. See

U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d

1019, 1028-29 (Pa. Super. 2017) (observing that prompt filing has generally

meant less than one month delay).

      Appellant also contends that her pro se status, when considered in

conjunction with the non-traditional service utilized in this case, provides a

reasonable excuse for her delay.      However, the trial court concluded that

Appellant’s pro se status did not create equitable circumstances that would

excuse her from complying with the procedural rules.          This conclusion is

neither an error of law or abuse of discretion. See Branch Banking and

Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) (noting that

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individuals who choose to represent themselves assume risk that their lack of

legal training will cause loss). As a result, we conclude that Appellant’s first

issue on appeal does not merit relief.

       In her second issue, Appellant claims that the trial court erred when it

denied her second petition to open default judgment as procedurally improper

under Rule of Civil Procedure 206.1(b).3         She argues that because she is

indigent and the second petition is counseled, in the interest of fairness and

justice, the trial court should have exercised its discretion to permit raising

issues in a second petition. See Appellant’s Brief, at 15. Appellant has not

cited, nor has our research revealed, any authority supporting her proposition

that it is an abuse of discretion to apply the procedural requirements of Rule

206.1 to indigent defendants who later obtain pro bono counsel.

       In any event, it is obvious the trial court would not have granted relief

on the counseled petition. The counseled, second petition is more detailed

and cogently argued than the first, pro se petition. However, the reasoning

the court employed in denying Appellant’s pro se petition applies equally to

the   allegations    and arguments presented in        the   counseled petition.

Ultimately, Appellant cannot overcome the fact that she had actual knowledge

of the complaint and default judgment four months before she filed the pro se

petition. Further, her pro se status did not relieve her of her obligation to file

____________________________________________


3 Pennsylvania Rule of Civil Procedure 206.1(b) states that an application to
open default judgment “shall specify the relief sought . . . [and a]ll grounds
for relief . . . shall be asserted in a single petition.” Pa.R.C.P. 206.1(b).

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a prompt response to the complaint or a prompt petition to open. Therefore,

Appellant’s second issue does not merit relief.

      For the aforementioned reasons, Appellant’s claims do not merit relief.

Accordingly, we affirm the trial court’s orders denying her petitions to open.

     Orders affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/19




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