J-S11044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES McCARTHY AND NICOLE                :       IN THE SUPERIOR COURT OF
McCARTHY,                                :             PENNSYLVANIA
                                         :
                  Appellants             :
                                         :
           v.                            :
                                         :
CRAIG RIDDELL AND RUTH RIDDELL           :           No. 2260 EDA 2015

                       Appeal from the Order July 1, 2015
                in the Court of Common Pleas of Bucks County,
                        Civil Division, No(s): 2014-07872

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED APRIL 29, 2016

     James McCarthy and Nicole McCarthy (“the McCarthys”) appeal from

the Order granting the Petition to Open and/or Strike the Judgment

(hereinafter “the Petition to Open/Strike”) filed by Craig Riddell and Ruth

Riddell (“the Riddells”), and striking the McCarthys’ appeal. We vacate the

Order and remand for further proceedings.

     The trial court set forth the relevant procedural history underlying this

appeal as follows:

     [The McCarthys] filed suit against [the Riddells] in the Court of
     Common Pleas of Montgomery County, Magisterial District 38-1-
     14, located in Hatboro, Montgomery County. The McCarthy[s]
     brought the case to resolve a dispute regarding a security
     deposit under a residential lease between the parties.[1]
     Specifically, the McCarthy[s] claimed that the Riddells failed to


1
  The leasehold property (hereinafter “the Property”) is located in Hatboro,
Montgomery County. The Riddells leased the Property to the McCarthys, and
required them to pay a security deposit of $2,140 to secure the lease. At all
relevant times, the Riddells resided in Bucks County.
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      [(1) return the McCarthys’ security deposit; or (2)] provide the
      McCarthy[s] with a written list of any damages to the [Property]
      for which the Riddells may hold the McCarthy[s] liable and
      withhold their security deposit.

            On October 15, 2014, a hearing was held before a
      [Magisterial] District Ju[dge] in Montgomery County[, the
      Honorable Paul Leo (“MDJ Leo”)]. After the October 15, 2014
      hearing, [MDJ Leo] entered judgment in favor of the McCarthy[s]
      and against [the] Riddells in the amount of … $2,285.75[].

            The McCarthy[s] never filed a Notice of Appeal to the Court
      of Common Pleas in Montgomery County. Instead, on November
      13, 2014, the McCarthy[s] filed a Notice of Appeal in the Court of
      Common Pleas of Bucks County.

Trial Court Opinion, 9/15/15, at 1-2 (footnote and emphasis added; footnote

citations to record omitted).

      On November 20, 2014, the McCarthys filed a de novo Complaint

(hereinafter, “the de novo Complaint”) in the Bucks County Court of

Common Pleas.2       Importantly, the Riddells did not file an answer or

preliminary objections to the de novo Complaint.

      Based upon the Riddells’ failure to respond to the de novo Complaint,

on December 29, 2014, the McCarthys gave the Riddells Notice of Intent to

enter a default judgment (hereinafter, “the 10-day Notice”).3 On February


2
  Though the de novo Complaint was filed on November 20, 2014, the
McCarthys’ counsel did not file an Affidavit of Service until December 20,
2014. The Affidavit of Service asserted that, on December 9, 2014, the
Riddells were served, at their last known residence in Bucks County, with a
copy of the de novo Complaint via certified mail.
3
  Though the 10-day Notice is contained in the certified record, it was not
entered on the trial court’s docket. As we discuss below, the Riddells
asserted that they never received the 10-day Notice.


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27, 2015, the McCarthys filed a Praecipe to enter default judgment (“the

Praecipe”),4 based upon the Riddells’ failure to respond to the de novo

Complaint or the 10-day Notice.           On March 9, 2015, the Bucks County

prothonotary entered a default judgment against the Riddells in the amount

of $9,920.00.     Also on that date, the prothonotary mailed the Riddells a

Notice of entry of judgment, pursuant to Pa.R.C.P. 236 (hereinafter, “the

Rule 236 Notice”).

      On March 24, 2015, the Riddells filed the Petition to Open/Strike the

judgment entered in Bucks County.           The Riddells asserted, inter alia, that

the judgment could not stand because the Bucks County Court of Common

Pleas lacked jurisdiction over the appeal. The Riddells asserted that, since

the   McCarthys    had   filed   their   initial   Complaint   before   MDJ   Leo   in

Montgomery County, any appeal of MDJ Leo’s judgment must therefore be

filed in the Montgomery County Court of Common Pleas.              Additionally, the

Riddells averred that they “never received a ten[-]day notice of intention to

take default judgment[, i.e., the 10-day Notice,] as certified by [the

McCarthys’] counsel[,]” and that the Riddells “did not become aware that

[the McCarthys] intended to or did enter default judgment by praecipe until

they received the Rule 236 Notice following March 9, 2015.”               Petition to

Open/Strike, 3/24/15, at ¶¶ 9-10 (some capitalization omitted).

4
    The Praecipe was not entered on the docket until March 9, 2015.
Additionally, the Praecipe included a certification that the McCarthys had
served the Riddells with the 10-day Notice, at least ten days prior to the
filing of the Praecipe.


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      On March 26, 2015, the trial court issued a Rule upon the McCarthys

to show cause why the Petition to Open/Strike should not be granted. The

McCarthys timely filed a responsive Memorandum, after which the Riddells

filed a Memorandum of Law in support of their Petition to Open/Strike.

      On July 1, 2015, the trial court issued an Order stating that upon

consideration of the Petition to Open/Strike, the “McCarthy[s’] appeal to the

Bucks County Court of Common Pleas is stricken in its entirety.”         Order,

7/1/15 (some capitalization omitted).5 The McCarthys timely filed a Notice

of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement

of errors complained of on appeal. The trial court then issued an Opinion.

      The McCarthys now present the following issues for our review:

       I.   Whether [the McCarthys’] appeal from Magisterial District
            Court was timely filed[?]

      II.   Whether venue is proper in Bucks County[?]

     III.   Whether the proceeding on appeal shall be conducted de
            novo in accordance with the Rules of Civil Procedure that
            would be applicable if the action was initially commenced
            in the Court of Common Pleas[?]

      IV.   Whether [the Riddells] waived the issue of venue[?]

      V.    Whether, if there is a county of proper venue within the
            state, the action shall not be stricken[,] but shall be
            transferred to the appropriate court of that county[?]

      VI.   Whether [the Riddells] fail to raise a valid defense[?]

Brief for Appellants at 3-4 (emphasis and capitalization omitted).

5
  Though the July 1, 2015 Order did not specifically so state, it implicitly
struck off the default judgment entered against the Riddells.


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      Our standard of review of an order granting a petition to open/strike is

well-settled:

      A petition to strike a judgment raises a question of law and relief
      thereon will only be granted if a fatal defect appears on the face
      of the record. Alternatively, a petition to open rests within the
      discretion of the trial court, and may be granted if the petitioner
      (1) acts promptly, (2) alleges a meritorious defense, and (3) can
      produce sufficient evidence to require submission of the case to
      a jury. The decision of the trial court on a petition to strike or
      open judgment will not be disturbed unless there is an error of
      law or a manifest abuse of discretion.

Rait P’ship, L.P. v. E Pointe Props. I, Ltd., 957 A.2d 1275, 1277 (Pa.

Super. 2008) (citations omitted); see also Northern Forests II, Inc. v.

Keta Realty Co., 130 A.3d 19, 28 (Pa. Super. 2015).

      The McCarthys first argue that the trial court erred in ruling that their

appeal from MDJ Leo’s judgment was untimely under the Rules of Civil

Procedure for Magisterial District Judges (hereinafter “MDJ Civil Rules”).

See Brief for Appellants at 13-14. We agree.

      MDJ Civil Rule 1002, which governs the time and method of appeal

from rulings made by a magisterial district judge, provides, in relevant part,

as follows:

      A party aggrieved by a judgment for money, or a judgment
      affecting the delivery of possession of real property arising out of
      a nonresidential lease, may appeal therefrom within thirty (30)
      days after the date of the entry of judgment by filing with the
      prothonotary of the court of common pleas a notice of appeal …,
      together with a copy of the Notice of Judgment issued by the
      magisterial district judge. …




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Pa.R.C.P.M.D.J. 1002(A).   Rule 1002(B) governs the time and method of

appeal from a “judgment for the delivery of possession of real property

arising out of a residential lease[,]” and provides for a ten-day period for

appeals to the court of common pleas. Pa.R.C.P.M.D.J. 1002(B).

     In the instant case, the trial court ruled that the ten-day appeal period

of Rule 1002(B) applied, stating

     [t]he McCarthy[s’] filing of their appeal was not timely. As
     stated, this [lawsuit] arises from a dispute over the [McCarthys’]
     security deposit [concerning] a residential lease. [] Thus, the
     McCarthy[s] had ten days to file their notice of appeal.
     [Pa.R.C.P.M.D.J. 1002(B).] The McCarthy[s’] hearing on their
     [initial C]omplaint, and [the judgment issued] therefrom,
     occurred on October 15, 2014[,] in the Magisterial District Court
     of Montgomery County. The McCarthy[s] then filed their appeal
     on November 13, 2014[, 29 days after the entry of judgment,]
     in the Court of Common Pleas [of] Bucks County. Thus, under
     [MDJ Civil] Rule 1002(B), the McCarthy[s] failed to file a timely
     appeal within the ten[-]day timeframe prescribed by [Rule
     1002(B)].

Trial Court Opinion, 9/15/15, at 4-5 (footnote citations reformatted to

appear in body).

     The trial court overlooked the language in Rule 1002(B) providing that

“[a] party aggrieved by a judgment for the delivery of possession of real

property arising out of a residential lease may appeal therefrom within ten

(10) days after the date of the entry of judgment ….”         Pa.R.C.P.M.D.J.

1002(B) (emphasis added).      The judgment against the Riddells did not

concern possession of the Property, but rather, the McCarthys’ money

security deposit. Therefore, the instant appeal is taken from a judgment for



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money, and the thirty-day appeal period provided for in MDJ Civil Rule

1002(A) applies.   See Pa.R.C.P.M.D.J. 1002(A) (providing for a thirty-day

appeal period for “[a] party aggrieved by a judgment for money ….”). The

McCarthys timely filed their Notice of Appeal within thirty days.

      Next, the McCarthys challenge the trial court’s ruling that the Bucks

County Court of Common Pleas was not the proper forum for the appeal

because the McCarthys had filed their initial Complaint in Montgomery

County, and any appeal of MDJ Leo’s judgment should have been filed in the

Montgomery County Court of Common Pleas. See Brief for Appellants at 14-

15.

      The trial court addressed this claim as follows:

      … Under [MDJ Civil] Rule 1001(2), an “appeal” is defined as “an
      appeal from a judgment to the court of common pleas.”
      [Pa.R.C.P.M.D.J. 1001(2).] Further, pursuant to Rule 1001(5),
      the “court of common pleas” is defined as “the court of common
      pleas of the judicial district in which is located the
      magisterial district wherein the questioned action of the
      magisterial district judge took place.”            [Pa.R.C.P.M.D.J.
      1001(5) (emphasis added by trial court).] Thus, when reading
      Rule 1001 in conjunction with Rule 1002, it is clear that an
      appeal from a magisterial court must be filed in the same county
      in which [the] magisterial case took place. [See Pa.R.C.P.M.D.J.
      1002(A) (providing that an aggrieved party “may appeal []
      within thirty (30) days after the date of the entry of judgment by
      filing with the prothonotary of the court of common pleas a
      notice of appeal ….”).]

           Here, Bucks County was not the proper venue for the
      McCarthy[s’] appeal ….

           The McCarthy[s] filed their initial [C]omplaint in a
      Magisterial District Court in Montgomery County. Therefore,
      pursuant to [MDJ Civil] Rules 1001 and 1002[], the McCarthy[s]


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      were to file their appeal in “the court of common pleas of the
      judicial district in which is located the magisterial district wherein
      the questioned action of the magisterial district judge took
      place.” [Pa.R.C.P.M.D.J. 1001(5).] As stated, that initial case
      took place in Montgomery County. Thus, the McCarthy[s] were
      to file their appeal in Montgomery County. Therefore, their
      appeal to Bucks County was improper because Bucks County
      was not the proper venue for their appeal.

Trial Court Opinion, 9/15/15, at 4 (footnote citations reformatted to appear

in body).   We agree with the trial court’s analysis, and likewise determine

that the McCarthys filed their de novo appeal in an improper venue.

However, improper venue can be waived, which we address below in the

McCarthys’ related third and fourth issues.

      The McCarthys argue that (1) the matter of venue in civil actions in de

novo appeals to the Court of Common Pleas is governed by the Pennsylvania

Rules of Civil Procedure, pursuant to MDJ Civil Rule 1007; and (2) under the

Pennsylvania Rules of Civil Procedure, the Riddells waived any challenge to

improper venue by failing to file preliminary objections.          See Brief for

Appellants at 15-16. We agree.

      MDJ Civil Rule 1007 provides, in relevant part, as follows:

      Rule 1007. Procedure on Appeal

        A. The proceeding on appeal shall be conducted de novo in
      accordance with the Rules of Civil Procedure that would
      be applicable if the action was initially commenced in the
      court of common pleas.

        B. Except as otherwise provided in subdivision C, the action
      upon appeal may not be limited with respect to amount in
      controversy, joinder of causes of action or parties,
      counterclaims, added or changed averments or otherwise


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      because of the particulars of the action before the magisterial
      district judge.

                                  ***

         Note: As under earlier law, the proceeding on appeal is
         conducted de novo, but the former rule that the
         proceeding would be limited both as to jurisdiction and
         subject matter to the action before the magisterial district
         judge (see Crowell Office Equipment v. Krug, 213 Pa.
         Super. 261, 247 A.2d 657 (1968)[),] has not been
         retained. Under subdivision B, the court of common pleas
         on appeal can exercise its full jurisdiction and all parties
         will be free to treat the case as though it had never been
         before the magisterial district judge, subject of course to
         the Rules of Civil Procedure. …

Pa.R.C.P.M.D.J. 1007 (emphasis added); see also Gladstone Partners, LP

v. Overland Enter., 950 A.2d 1011, 1014 (Pa. Super. 2008) (stating that

“[i]n Pennsylvania, the purpose of an appeal de novo is to give a litigant a

new trial without reference to the record established in the minor court ….”).

Here, under MDJ Civil Rule 1007, when the McCarthys filed their de novo

appeal in the Court of Common Pleas of Bucks County (albeit an improper

venue), “the [Pennsylvania] Rules of Civil Procedure that would be applicable

if the action was initially commenced in the court of common pleas” applied.

Pa.R.C.P.M.D.J. 1007(A).

      Pennsylvania Rule of Civil Procedure 1006, which governs venue,

provides, in relevant part, that “[i]mproper venue shall be raised by

preliminary objection[,] and if not so raised shall be waived ….” Pa.R.C.P.

1006(e); see also Zappala v. Brandolini Prop. Mgmt., 909 A.2d 1272,

1281 (Pa. 2006). Pennsylvania Rule of Civil Procedure 1028, which concerns


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preliminary objections, specifically includes “improper venue,” and requires

all preliminary objections to be raised at once and within twenty days of

service of the preceding pleading.   Pa.R.C.P. 1026(a); see also Zappala,

909 A.2d at 1281.

     The Riddells never filed preliminary objections to the de novo

Complaint,6 and they therefore waived any challenge to the improper venue.

See Pa.R.C.P. 1006(e).    Accordingly, the trial court’s Order striking the

appeal based on improper venue cannot stand.

     Nevertheless, there remains an additional matter that the trial court

should have addressed in ruling on the Petition to Open/Strike. The Riddells

assert that, contrary to the McCarthys’ certification, the Riddells never

received the 10-day Notice. See Petition to Open/Strike, 3/24/15, at ¶¶ 9-

10; Brief for Appellees at 5, 13.    Moreover, the Riddells argued in the

Petition to Open/Strike that they met all of the requirements to have the

default judgment opened. See Petition to Open/Strike, 3/24/15, at ¶¶ 12-

18; see also Memorandum of Law in Support of Petition to Open/Strike,

4/22/15, at 7-10.   However, the trial court did not rule on these matters

when it ordered that the McCarthys’ de novo appeal be “stricken in its

entirety.” Thus, we deem it necessary to remand for consideration of these

matters.



6
  The Riddells do not dispute that they were served with the de novo
Complaint.


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      Accordingly, we vacate the Order striking the appeal and remand the

case to the Bucks County Court of Common Pleas.7 On remand, we direct

the trial court to address whether the Riddells have established the criteria

for opening the default judgment, and to conduct further proceedings as

may be necessary. See, e.g., Stabley v. Great Atl. & Pac. Tea Co., 89

A.3d 715, 719 (Pa. Super. 2014) (setting forth the three elements that a

party seeking to open a default judgment must establish, and noting that a

petition to open a default judgment is addressed to the equitable powers of

the court).8

      Order vacated. Case remanded for further proceedings consistent with

this Memorandum. Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2016




7
  In light of our disposition, we need not address the McCarthys’ remaining
issues on appeal.
8
  The trial court shall determine, inter alia, whether the Riddells were served
with the 10-day Notice and the de novo Complaint, as well as whether “(1)
the [P]etition to [O]pen[/S]trike was promptly filed; (2) the default can be
reasonably explained or excused; and (3) there is a meritorious defense to
the underlying claim.” Stabley, 89 A.3d at 719 (citation omitted).


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