J-S39019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY DUNSWORTH AND CYNTHIA                       IN THE SUPERIOR COURT OF
DUNSWORTH,                                             PENNSYLVANIA

                            Appellees

                       v.

THE DESIGN STUDIO AT 301, INC.,

                            Appellant                 No. 2071 MDA 2015


               Appeal from the Order Entered November 2, 2015
               in the Court of Common Pleas of Lebanon County
                       Civil Division at No.: 2014-01993


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY PLATT, J.:                                FILED JUNE 23, 2016

        Appellant, The Design Studio at 301, Inc., in this companion case to

the appeal filed at No. 2070 MDA 2015, appeals from the order denying its

petition to strike and/or open a default judgment against it and in favor of

Appellees, Gary and Cynthia Dunsworth. For the reasons discussed below,

we affirm.

        We take the facts and underlying procedural history in this matter

from the trial court’s January 14, 2016 opinion.

              On November 12, 2014, [] Gary and Cynthia Dunsworth
        (hereinafter “Appellees”) filed a [c]ivil [c]omplaint. The caption
        referred to the Appellant as “The Design Group at 301, Inc.”
        The [c]omplaint alleged that Appellees and Appellant entered
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*
    Retired Senior Judge assigned to the Superior Court.
J-S39019-16


     into a contract for the Appellant to complete certain home
     improvement work.      However, Appellant failed to fulfill its
     obligations under the contract. The [c]omplaint contained three
     counts: breach of contract, breach of implied warranty, and
     fraud/misrepresentation.

           On January 7, 2015, Appellees filed a praecipe for entry of
     default judgment due to Appellant’s failure to file a responsive
     pleading to the [c]omplaint. The praecipe indicates that a notice
     of intention to file the praecipe was mailed to Appellant on
     December 24, 2014. Default judgment was entered against the
     Appellant on January 7, 2015 by the [p]rothonotary via praecipe
     in the amount of $18,356.00, exclusive of interest and costs.

            On February 9, 2015, Appellees filed a [m]otion to
     [a]mend [c]aption. Counsel asserted that through inadvertence
     and clerical error, the [c]omplaint recited the name of Appellant
     as “The Design Group at 301, Inc.” instead of “The Design Studio
     at 301, Inc.,” and the latter is the correct name of Appellant.
     Appellees sought to amend Appellant’s name wherever it
     appear[ed] in the record to reflect the correct name. The matter
     was listed for the March 2015 [t]erm of [a]rgument [c]ourt. The
     parties waived oral argument and agreed to have the matter
     decided on the briefs. Appellees filed a brief in support of their
     position on February 25, 2015. Appellant did not file a brief
     in opposition. By [c]ourt [o]rder and [o]pinion [entered] April
     10, 2015, [the trial c]ourt granted the [m]otion to [a]mend
     [c]aption.

           On March 30, 2015, Appellees filed a [m]otion to [c]ompel
     [d]iscovery asserting that they served upon Appellant post-
     judgment discovery requests, but Appellant failed to respond to
     the requests. The [m]otion to [c]ompel [d]iscovery was listed
     for the May 2015 [t]erm of [a]rgument [c]ourt. Appellant
     never filed a response to the [m]otion to [c]ompel.
     Accordingly, the [m]otion to [c]ompel was granted by [c]ourt
     [o]rder dated [June 1], 2015.         The [o]rder stated, "The
     [d]efendant (Appellant) shall provide full, complete, and verified
     responses to the [p]laintiffs’ (Appellees) discovery requests
     within 30 days after entry of this [o]rder, or suffer appropriate
     sanctions upon further application to the [c]ourt.”

           On July 13, 2015, Appellees filed a [m]otion for [s]anctions
     claiming that they still did not receive the discovery requests

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      despite the [c]ourt [o]rder. On July 14, 2015, the [m]otion for
      [s]anctions was granted and Appellant was ordered to remit the
      sum of $1,650.00 to Appellees, which sum represented
      attorneys’ fees and costs incurred in connection with the motion.
      Further, Appellant was found in contempt of the [June 1], 2015
      [c]ourt [o]rder. However, no additional sanctions were ordered.

            On August 5, 2015, Carmen Stanziola, Esq. entered his
      appearance on behalf of Appellant. On the same date, said
      counsel filed a [m]otion to [v]acate the July 14, 2015 [sanctions]
      [c]ourt [o]rder, and he additionally filed a [p]etition to [o]pen
      and/or [s]trike the [d]efault [j]udgment. On August 24, 2015,
      Appellees filed respective answers, and filed briefs in support of
      their positions on September 10, 2015.           The [m]otion to
      [v]acate [sanctions] and [p]etition to [o]pen and/or [s]trike
      were both listed for the September 2015 [t]erm of [a]rgument
      [c]ourt. Oral argument was heard on September 25, 2015. On
      [November 2], 2015 [the trial c]ourt denied Appellant’s [m]otion
      to [v]acate and [p]etition to [o]pen/[s]trike.

             Appellant filed its notice of appeal on November 30, 2015.
      [The trial c]ourt ordered Appellant to file a [c]oncise [s]tatement
      of [e]rrors [c]omplained of on Appeal, pursuant to [Pa.R.A.P.]
      1925(b), which was filed on December 4, 2015. Appellant filed
      its [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal
      on December 21, 2015. [On January 14, 2016, the trial court
      issued an opinion. See Pa.R.A.P. 1925(a)].

(Trial Court Opinion, 1/14/16, at 1-3) (emphasis added).

      On appeal, Appellant raises the following question for our review:

      Whether the trial court erred in denying the petition to
      strike/open judgment and to vacate order?

(Appellant’s Brief at 4) (most capitalization omitted).

      Appellant challenges the denial of its motion to open the default

judgment. (See Appellant’s Brief, at 8-10). However, this issue lacks merit.




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                    It is well settled that a petition to open a
              default judgment is an appeal to the equitable
              powers of the court, and absent an error 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.

Kelly v. Siuma, 34 A.3d 86, 91-92 (Pa. Super. 2011), appeal denied, 42

A.3d 294 (Pa. 2012) (citations and footnote omitted).

       Here, Appellant has waived this claim because its argument is

undeveloped. The argument consists of a paragraph of boilerplate law (see

Appellant’s Brief, at 8), followed by several intervening paragraphs that

concern the denial of the motion to strike. (See id. at 8-9). Subsequently,

Appellant inserts a single sentence argument regarding the denial of the

motion to open, in, which it claims it had no opportunity to develop a record

on the issue because the trial court did not “provide Appellant with notice

and any opportunity to respond or be heard, in the form of an oral argument

or evidentiary hearing.”1 (Appellant’s Brief, at 9-10). Appellant at no point

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1
  We note the record demonstrates that the prothonotary listed this matter
for oral argument on September 25, 2015. (See Notice of Listing Case for
(Footnote Continued Next Page)


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attempts to apply the facts of this matter to the three-part test for granting

a motion to open.        It is long-settled that failure to argue and to cite any

authority supporting the argument constitutes a waiver of the issue on

appeal.   See Jones v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005).             This

Court will not act as counsel and will not develop arguments on behalf of an

appellant.   See Bombar v. West Am. Ins. Co., 932 A.2d 78, 94 (Pa.

Super. 2007).     When deficiencies in a brief hinder our ability to conduct

meaningful appellate review, we can dismiss the appeal entirely or find

certain issues to be waived.          See Pa.R.A.P. 2101.   Because Appellant has

failed to develop this issue, it waived it.2 See id.; see also Bombar, supra

at 94; Jones, supra at 90.

      Appellant next claims that the trial court erred in denying its motion to

vacate the July 14, 2015 order imposing the sanction of attorney’s fees. We

note “[o]ur standard of review of issues concerning sanctions is one of abuse
                       _______________________
(Footnote Continued)

Argument Court, 8/10/15, at unnumbered page 1). In its Rule 1925(a)
opinion, the trial court states that oral argument did take place on that date.
(See Trial Ct. Op., 1/14/16, at 3). The record does not contain any
transcript of oral argument; however, it also does not contain any indication
that the trial court canceled oral argument. This Court has clearly stated
that it is the Appellant’s responsibility to ensure that the certified record
contains all documents necessary to ensure that this Court is able to review
its claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super.
2008); Pa.R.A.P. 1926; Pa.R.A.P. 1931.
2
  In any event, the trial court opinion properly disposes of this issue. (See
Trial Ct. Op., 1/14/16, at 4-5) (holding that Appellant did not timely file its
petition to open, when it filed the petition approximately seven months after
entry of the default judgment).



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of discretion by the trial court.”   ACE Am. Ins. Co. v. Underwriters at

Lloyds and Companies, 939 A.2d 935, 945 (Pa. Super. 2007), aff’d, 971

A.2d 1121 (Pa. 2009) (citation omitted).

      However, Appellant waived this claim because it did not include it in its

Rule 1925(b) statement, which only challenged the denials of the motion to

open and petition to strike. (See Concise Statement of Errors Complained of

upon Appeal, 12/21/15, at unnumbered page 1). Thus, the trial court did

not address it in its Rule 1925(a) opinion. (See Trial Ct. Op., 1/14/15, at 4-

6).

      As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925

provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived.            See Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 431 (Pa. Super. 2009).         Accordingly, we find that

because Appellant did not raise the denial of its motion to vacate the

sanctions order in its Rule 1925(b) statement, it waived the claim.

      Lastly, Appellant claims that the trial court erred in denying its petition

to strike. (See Appellant’s Brief, at 8-9). We disagree.

             Our standard of review from the denial of a petition to
      strike a judgment is limited to whether the trial court manifestly
      abused its discretion or committed an error of law. A petition to
      strike a judgment will not be granted unless a fatal defect in the
      judgment appears on the face of the record. Matters outside of
      the record will not be considered and if the record is self-

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       sustaining, the judgment will not be stricken. For example, a
       judgment is properly stricken where the record indicates a fatal
       flaw such as defective service.

Vogt v. Liberty Mut. Fire Ins. Co., 900 A.2d 912, 915-16 (Pa. Super.

2006) (citations and quotation marks omitted).

       To the extent it can be determined from Appellant’s brief, its argument

is a layered one.      Appellant claims that the original complaint had a fatal

defect on the face of the record because its name in the complaint was

stated incorrectly.3 (See Appellant’s Brief, at 8).   Appellant next seems to

contend that the trial court’s grant of Appellees’ motion to amend the

caption did not cure the defect because the trial court erred in allowing

amendment. (See Appellant’s Brief, at 8-9). We disagree.

       Initially, we note that the defect in this case consisted of a single

word; Appellees used the word “group” in the caption instead of “studio,”

when naming Appellant. “We have held that inconsequential and technical

defects which are not prejudicial should not be the basis for opening a

judgment. Here, where the defect was cured by a subsequent amendment

[of the caption] . . . the original improp[riety] was a harmless irregularity

which would not justify striking the judgment.” Equibank, N.A. v. Dobkin,

425 A.2d 461, 464 (Pa. Super. 1981) (citation omitted).         In the instant
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3
  While Appellant also complains that the address listed for Appellant was
incorrect, it fails to provide any proof in support of that assertion and does
not contend that it did not receive service of any of the documents in this
action. (See Appellant’s Brief, at 4-11).



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matter, Appellees cured the error by seeking and obtaining leave to amend

all filed documents to correct the name. See id. Appellant has not shown

that the use of a single incorrect word prejudiced it. Thus, the trial court

neither abused it discretion nor committed an error of law in failing to strike

the judgment on this basis. See id.; Vogt, supra at 915-16.

      Moreover, to the extent that Appellant claims that the trial court erred

in allowing the amendment, (see Appellant’s Brief, at 8-9), it waived the

claim.   It is a long settled principle of law that a party must “raise all

defenses or grounds for relief at the first opportunity. A party who fails to

raise such defenses or grounds for relief may not assert that the trial court

erred in failing to address them.” Walsh v. Borczon, 881 A.2d 1, 5 (Pa.

Super. 2005) (citation omitted).

      In the instant matter, on February 17, 2015, the trial court directed

that the parties file briefs in response to Appellees’ motion to amend the

caption. (See Notification of Listing Case for Argument Court, 2/17/15, at

unnumbered page 1). Appellant elected not to comply. By order of April 10,

2015, the trial court granted the motion noting that the error in question

was a “scrivener’s/clerical error” and that Appellant did not file a brief in

opposition. (Trial Court Opinion, 4/10/15, at 3; see id. at 2). As Appellant

failed to oppose the motion at the first available opportunity, he cannot now

claim that the trial court granted it in error. See Walsh, supra at 5; see

also State Farm Mut. Auto. Ins. Co. v. Dill, 108 A.3d 882, 886 (Pa.


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Super. 2015), appeal denied, 116 A.3d 605 (Pa. 2015) (appellant waived

argument regarding composition of arbitration panel by not objecting at first

available opportunity). Thus, Appellant’s claim that the trial court erred in

granting the motion to amend the caption is waived.4

       Accordingly, for the reasons discussed above we affirm the order of

November 2, 2015.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2016




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4
  Moreover, we note that the sole legal support cited by Appellant in support
of its contention is Heybach & Sons, Inc. v. Rascal’s Tavern, 19 D. &
C.3d 497 (Philadelphia County, Ct. of Com.Pl. 1981). Decisions of the
Courts of Common Pleas are not binding precedent. See Hirsch v. EPL
Tech., Inc., 910 A.2d 84, 89 n.6 (Pa. Super. 2006), appeal denied, 920
A.3d 833 (Pa. 2007). While such decisions can be persuasive, see id., we
see nothing in this brief opinion, which is lacking in analysis, which would
cause us to question the trial court’s thorough and well-written decision
granting leave to amend the caption.



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