J-S12043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

FIRMSTONE OIL CO., INC.                   :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 v.                       :
                                          :
ELIMELECH RIGERMAN and LEONID             :
RIGERMAN                                  :
                                          :
APPEAL OF: ELIMELECH RIGERMAN             :     No. 2511 EDA 2015

                Appeal from the Order Entered July 28, 2015,
              in the Court of Common Pleas of Wayne County,
                  Civil Division, at No(s): 1449-JUDG-2010

BEFORE:     MUNDY, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 04, 2016

      Elimelech Rigerman (Elimelech) appeals pro se from the order entered

on July 28, 2015, which denied his motion to vacate default judgment. We

affirm.

      On May 4, 2010, Firmstone Oil Company (Firmstone) filed a complaint

before Magisterial District Judge Theodore J. Mikulak against Elimelech and

his father, Leonid Rigerman (Leonid) (collectively, the Rigermans) for failing

to pay for heating oil in the amount of $592.12 plus costs. The complaint

was served personally upon Elimelech at a Brooklyn, New York address on

June 26, 2010 by Anthony Mazzella, a process server in New York. On July

29, 2010, a default judgment at the district court was entered against the

Rigermans. The judgment was filed in the prothonotary’s office of the Court

of Common Pleas of Wayne County on August 31, 2010.




*Retired Senior Judge assigned to the Superior Court.
J-S12043-16


        On May 12, 2015, the Rigermans pro se filed a “Motion for Order to

Vacate Default Judgment.”      The Rigermans asserted that Firmstone lacked

personal jurisdiction over them; and, therefore they “are not bound by the

usual appeal … deadlines, since the court needs personal jurisdiction to

impose a judgment[.]” Motion for Order to Vacate Default Judgment,

5/12/2015, at ¶ 1.      The Rigermans also asserted within this motion that

“they meet all the requirements to file a late appeal” because “[t]here was

no proper service.” Id. at ¶ 3. On June 2, 2015, the trial court issued a rule

to show cause on Firmstone. Firmstone filed an answer, and a hearing was

held on July 6, 2015.

        At the hearing, Leonid was represented by Attorney Jeffrey Treat.1

Leonid called Summer Canfield, an employee for District Judge Mikulak, to

testify. Canfield testified about the records kept for District Judge Mikulak.

She testified that the affidavit of service indicates that service was made

only on Elimelech. N.T., 7/6/2015, at 5.      Steven Firmstone, the general

manager of Firmstone, also testified. He testified that the Rigermans were

listed as the billing address for a heating oil account for a home in Beach

Lake, Pennsylvania.2     According to his testimony, oil was delivered and


1
    Neither of the Rigermans attended the hearing personally.
2
  The record includes a June 23, 2009 deed for property located at 13 Hill
Street in Beach Lake in Wayne County. The deed shows that Elimelch
granted a two-thirds interest in the property to Yisroel Rigerman and Moshe
Rigerman.


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payment was made on a regular basis for a period of time for that account.

At some point, a “dispute among the family members” arose as to who

ordered the heating oil. Id. at 9. That dispute, resulting in Firmstone’s not

getting paid for its last delivery of heating oil, led to Firmstone filing the

complaint against the Rigermans in Wayne County.            Steven Firmstone

testified that the complaint was mailed to the Brooklyn address, but “they

were not signing for their mail.” Id. at 10. Firmstone then paid a company

to serve the Rigermans.      At the close of testimony, counsel for Leonid

argued that Leonid never received service of the complaint and he is not on

the deed to the property; thus, he requested the trial court open the

judgment against him.

      On July 28, 2015, the trial court entered an order striking the

judgment against Leonid.3 The trial court denied the motion to vacate the

judgment with respect to Elimelech.4

      Elimelech filed pro se a notice of appeal from that order. He also filed

both a “concise statement of errors on appeal” that included 17 allegations

of error and a “concise list of errors complained [of] on appeal[]” setting

3
  The trial court concluded that the judgment should be stricken with respect
to Leonid because “it appears from the facts of record that proof of service
was never filed with the original complaint.” Trial Court Order, 7/28/2015, at
n. 1.
4
  Despite the fact that Elimelech called his motion a motion to “vacate” the
judgment, we must look to the substance of the motion to determine
whether to treat it as a petition to open or a petition to strike the judgment.
See Erie Ins. Co. v. Bullard, 839 A.2d 383 (Pa. Super. 2003).


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forth eight errors.   The trial court filed an opinion pursuant to Pa.R.A.P.

1925(a).

      We set forth the relevant principles of law that guide our review of this

matter.

             A petition to strike a default judgment and a petition to
      open a default judgment are generally not interchangeable. A
      petition to strike does not involve the discretion of the court.
      Instead, it operates as a demurrer to the record. A demurrer
      admits all well-pleaded facts for the purpose of testing
      conclusions of law drawn from those facts. Because a petition to
      strike operates as a demurrer, a court may only look at the facts
      of record at the time the judgment was entered to decide if the
      record supports the judgment. A petition to strike can only be
      granted if a fatal defect appears on the face of the record.

                                      ***

            In contrast, a petition to open a judgment is an appeal to
      the equitable powers of the court. It is committed to the sound
      discretion of the hearing court and will not be disturbed absent a
      manifest abuse of that discretion. 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 judgment must show a meritorious
      defense.

Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 918-19. (Pa.

1997) (citations omitted).

      Elimelech first argues that the complaint itself was defective; thus, the

judgment is void and should be stricken. Specifically, he contends that the

complaint filed by Firmstone at the district court was in violation of

Pa.R.M.D.J. 304, which governs complaints filed before the magisterial




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district judge. He argues that Firmstone “deliberately signed a false name”

when he signed one document as “Steve” when his legal name is “Steven.”

Elimelech’s Brief at 28. He also claims that Firmstone “deliberately left out

all the relevant legally required information from the complaint, to preclude

[Elimelech] from being able to present a proper defense[.]” Id. at 29.

         The trial court offered the following in response to these contentions.

               The complaint that commences a civil action in a
         magisterial district court[] shall include: (1) “the names and
         addresses of the parties,” (2) [“]the amount claimed,” and (3)
         [“]a brief and concise statement of the facts upon which the
         claim is based.” Pa.R.C.P.M.D.J. 304(c).       The brief concise
         statement of the facts in the complaint shall include “the date,
         time and place of occurrence and a brief description of the
         damages.” Id.

                In this case, there was no fatal defect evident on the face
         of the record at the time default judgment was entered. The
         filed civil complaint consisted of the names and addresses of the
         parties, the amount claimed, and a concise statement of the
         facts. The information in the complaint was more than enough
         to put [Elimelech] on notice of what he was being accused of….
         Therefore, this [c]ourt finds that [Elimelech] is not entitled to a
         court order vacating the [judgment] in this case.

Trial Court Opinion, 10/5/2015, at 2-3.

         We discern no error in the trial court’s conclusion.    A review of the

record supports the trial court’s determination that based on the facts of

record, the complaint filed by Firmstone was not defective. Accordingly, we

agree with the trial court that the judgment should not be stricken on this

basis.




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      Elimelech next argues that he was not properly served with the

complaint; therefore, the district court lacked jurisdiction over him.

Elimelech’s Brief at 44.    Specifically, Elimelech argues that service by

process server Anthony Mazzella in New York City was improper because

Anthony Mazzella was not a licensed process server at that time. Id.

            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. Thus, if 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…. [S]ee [] Liquid Carbonic [Corp. v. Cooper &
      Reese, Inc., 416 A.2d 549 (Pa. Super. 1979)] (petition to open
      granted where record was facially valid at time judgment was
      entered but subsequent affidavits and depositions in support of
      the petition to open demonstrated that service was improper).

Cintas, 700 A.2d at 919.

      As to this issue, Elimelech’s argument that Anthony Mazzella was not a

licensed process server, and was therefore unauthorized to serve Elimelech

pursuant to the rules, does not constitute a “fatal defect or irregularity

appearing on the face of the record.” Id., 700 A.2d at 917. Cf. Brooks v. B

& R Touring Co., 939 A.2d 398 (Pa. Super. 2007) (holding that the service

of the complaint made upon Beverly Frey when the complaint listed only B &

R Touring Company as a defendant was a defect apparent from the face of

the record rendering the judgment entered void and properly stricken by the

trial court).



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      Accordingly, this portion of the motion to vacate default judgment

must be treated as a petition to open the default judgment. Elimelech had

the burden of offering proof to satisfy the aforementioned three-prong test.

See Sisson v. Stanley, 109 A.3d 265, 279 (Pa. Super. 2015) (“[T]he

burden of proof with respect to disputed issues of material fact rests with the

petitioner, since if the petitioner fails to present evidence, the trial court

must accept as true the allegations of fact in the respondent’s answer.”).

However, Elimelech did not appear, nor was he represented, at the hearing

on the rule to show cause.     Therefore, he could not meet his burden of

proof, and the trial court did not err in refusing to open the judgment.

      Based on the foregoing, we affirm the order of the trial court denying

Elimelech’s motion to vacate default judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/4/2016




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