J. S67013/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

THE PHILLIES                             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
REGIONAL RESOURCES,                      :
MANAGEMENT, INC., AND                    :
JOSEPH S. SIMONE,                        :          No. 445 EDA 2016
                                         :
                        Appellants       :


                  Appeal from the Order, January 27, 2016,
            in the Court of Common Pleas of Philadelphia County
                         Civil Division at No. 001991


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 22, 2017

      Regional Resources Management, Inc. and Joseph S. Simone, Jr.

(“Simone”), appeal the order of the Court of Common Pleas of Philadelphia

County that denied their petition to strike or open default judgment.

      The facts, as recounted by the trial court, are as follows:

                  On February 16, 2015, Appellee, the Phillies,
            sued Appellants for an aggregate unpaid contract
            balance of $152,339.00 for a partial suite license,
            Diamond Club seating, season tickets, and other
            amenities. The Complaint raised counts of Breach of
            Contract, Breach of Promise, and Unjust Enrichment.
            The Complaint included contracts for a suite license
            agreement     signed    by    Regional    Resources
            Management, Inc. through its representative, Joseph
            Simone at the address “PO Box 597, Voorhees, NJ
            08043;” and a standard season ticket agreement

* Former Justice specially assigned to the Superior Court.
J. S67013/16


              signed by Joseph S. Simone Jr. at the address
              “Regional Resources Inc. PO Box 597, Voorhees, NJ
              08043.” See Complaint, “Exhibit A” and “Exhibit B.”

                    On February 27, 2015, Appellee filed an
              Affidavit of Service stating that Regional Resources
              Management, Inc. a/k/a Regional Resources, Inc.,
              had been served by personal service and that the
              Complaint had been served upon Angela Decker, an
              authorized agent, at 1307 White Horse Road,
              Bldg. D., Voorhees, NJ, 08043, on February 20,
              2015, at 10:20 a.m.

                     On February 27, 2015, Appellee filed an
              Affidavit of Service stating that Joseph S. Simone,
              Jr., had been served by personal service and that the
              Complaint had been served upon Angela Decker, an
              authorized agent, at 1307 White Horse Road,
              Bldg. D., Voorhees, NJ, 08043, on February 20,
              2015, at 10:20 a.m.

                    On April 10, 2015, Appellee filed a Praecipe for
              Entry of Default Judgment against Appellants in the
              amount of $157,202.43.[1]

                    On October 13, 2015, Appellee filed a Praecipe
              to Issue a Writ of Attachment.

                     On November 19, 2015, Appellants filed a
              Petition to Open Judgment. Appellants argued that
              the Suite License agreement was between Appellee
              and Regional Resources Management, only, and that
              this entry of judgment “constituted a fatal defect in
              the record” which required that judgment be stricken
              as against Regional Resources Energy Group,
              Regional Resources, Inc., and Joseph S. Simone, Jr.
              Additionally, Appellants argued that the entities were
              not parties to the contract and that this constituted
              grounds to open the default judgment, as it was a
              meritorious defense. The Petition also included an
              affidavit from Joseph S. Simone, Jr., which stated
              the following: Regional Resources, Inc., does not

1
    This amount included interest and costs for the Sheriff.


                                       -2-
J. S67013/16


          exist; Regional Resources Energy Group is a limited
          liability company separate and apart from Regional
          Resources     Management,      Inc.;   that    Regional
          Resources Management, Inc., entered into a suite
          license agreement, had a Diamond Club Ticket
          Purchase Agreement, and purchased season tickets;
          that at the time judgment was entered, Simone was
          “unable to afford counsel to represent [him] or any
          other entity . . . and instead contacted plaintiff to
          discuss a potential resolution of the matter. . . .”

                On December 9, 2015, Appellee filed an
          Answer in Opposition to Appellants’ Petition to Open
          Judgment, Appellee argued that all Appellants had
          known about the lawsuit since February of 2015;
          that they were notified on April 10, 2015 that a
          default judgment was taken against them; and that
          Appellants    had    not    provided    a   reasonable
          explanation [for their failure] to respond to the
          Complaint in a timely fashion. The Answer noted
          that the Agreement was entered into with Regional
          Resources Management, Inc., a/k/a Regional
          Resources Energy Group, a/k/a Regional Resources,
          Inc., and that the purchase agreement was entered
          into by Joseph Simone, and that the signature box
          was signed in an individual capacity by Joseph
          Simone. Appellee noted that it sued Regional under
          the Suite Licensing Agreement, Simone under the
          Ticket Purchase Agreement, Simone for season
          tickets and parking, Regional for breach of promise
          and guaranty, and all Appellants for unjust
          enrichment in the amount of the balance due.
          Appellee argued that it was not improper, under
          Pennsylvania law, to sue Appellants under fictitious
          names, that all Appellants used and benefited from
          the suite, tickets, etc., and that all Appellants were
          sued under the unjust enrichment claim.

                On January 27,      2016,   this   court   denied
          Appellants’ Petition.

                On January 28, 2016, Appellants filed a timely
          Notice of Appeal to the Superior Court of
          Pennsylvania.


                                   -3-
J. S67013/16



Trial court opinion, 4/5/16 at 1-3.

      On appeal, appellants raise the following issues for this court’s review:

            1.     Did the trial court err in refusing to strike a
                   default judgment when the judgment was
                   defective on its face because the [appellants]
                   were not a party to the agreement on which
                   the judgment rests?

            2.     Did the trial court err in refusing to open a
                   default judgment when the [appellants]
                   presented a meritorious defense at the opening
                   of the execution proceedings and immediately
                   upon being able to afford representation, and
                   the facts in question are sufficient to present to
                   a jury?

            3.     Is a court required under Pa.R.C.P. 206.6,
                   when adopted through the local rules of civil
                   procedure of that county, to abide by the
                   language of the rule and issue a rule to show
                   cause as of course upon the filing of a petition?

Appellants’ brief at 2.

      Initially, appellants contend that the trial court erred when it refused

to strike the default judgment because the appellants were not party to the

agreement upon which the judgment rested, which rendered the record

fatally defective. Appellants argue that the default judgment exists solely as

a result of an improperly pleaded complaint because the Suite License

Agreement     in   question   was     executed   between   Regional     Resources

Management, Inc., and appellee and not the other entities. Appellants also

argue that the trial court erred when it found that because Simone signed

the Suite License Agreement, Simone was de facto personally liable even if


                                       -4-
J. S67013/16


he did not sign in his personal capacity. According to appellants, Regional

Resources Management, Inc. was the only party to execute the Suite License

Agreement with appellee so that this court should reverse the trial court’s

order because of a plainly defective record and strike the judgment as to

Regional Resources Energy Group and Simone.

                        With regard to a motion to strike a
                 default judgment, [a] court may only
                 look at the facts of record at the time
                 judgment was entered to decide if the
                 record supports the judgment. A petition
                 to strike does not involve the discretion
                 of the court.     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-sustaining, the
                 judgment will not be stricken.

           Aquilino v. Phila. Catholic Archdiocese, 884 A.2d
           1269, 1280 (Pa.Super. 2005). “A petition to strike a
           judgment is a common law proceeding which
           operates as a demurrer to the record.” U.S. Bank,
           N.A.     v.  Mallory,     982    A.2d     986,   991
           (Pa.Super.2009) (quoting Cintas Corp. v. Lee’s
           Cleaning Servs., 549 Pa. 84, 89-90, 700 A.2d 915,
           917 (1997)). “Where a fatal defect or irregularity is
           apparent from the face of the record, the
           prothonotary will be held to have lacked the
           authority to enter [a] default judgment and the
           default judgment will be considered void.” Id.

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920-921 (Pa.Super. 2010).

     Where a complaint contains averments sufficient to sustain an action,

a petition to strike a judgment must be denied. Kazanjian v. Cohen, 103

A.2d 491, 493 (Pa.Super. 1954).      If the truth of the factual averments


                                   -5-
J. S67013/16


contained in the record is disputed, then the recourse is a petition to open

the judgment not to strike. Resolution Trust Corp. v. Copley Qu-Wayne

Assocs., 683 A.2d 269 (Pa. 1996).

      Here, averments were contained in the complaint that Regional

Resources Management, Inc., was also known as Regional Resources Energy

Group and that Simone was a party to the contract and enjoyed the benefits

of the contract. Further, the complaint contained averments that all of the

named defendants were unjustly enriched as they all used and enjoyed the

services without paying appellee the amount owed of $152,339.             This

challenge to the factual averments of the complaint is not properly raised in

a motion to strike as it does not challenge a defect on the face of the record.

See Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261,

1271 (Pa.Super. 2015).

      Similarly, appellants’ claim that it is improper for appellee to obtain a

judgment against Regional Resources Management, Inc., and the additional

“also known as” names attacks the factual averments made in the

complaint. As appellants failed to answer the complaint and challenge these

averments, they are now taken as true. Id. Once again, appellants failed to

allege a defect on the face of the record. The trial court did not err when it

denied the motion to strike.

      Appellants next contend that the trial court erred when it denied the

petition to open the default because appellants presented their argument at



                                     -6-
J. S67013/16


the opening of the execution proceedings and as soon as they were able to

afford representation, they presented a meritorious defense of lack of

contractual privity, and the facts in question were sufficient to present to a

jury.

        A petition to open judgment is an appeal to the equitable powers of

the court.    First Seneca Bank & Trust Co. v. Laurel Mountain Dev.

Corp., 485 A.2d 1086, 1088 (Pa. 1984):

                    [The grant or denial of a motion to open
             judgment] 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. 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.
             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.

Cintas Corp., 700 A.2d at 919 (citations omitted).




                                    -7-
J. S67013/16


      The timeliness of the petition is “measured from the date that the

notice   of    the   entry   of   default    judgment   is   received.”   Castings

Condominium Assoc. v. Klein, 663 A.2d 220, 223 (Pa.Super. 1995).

      Here, default judgment was entered on April 10, 2015.               Appellants

filed the petition to open on November 19, 2015, over seven months after

the entry of judgment. While there is no bright line as to what constitutes a

“promptly filed petition,” the trial court noted that prompt and timely filings

are generally less than a month. The trial court did not err when it ruled

that the petition to open, filed more than seven months after entry of the

default judgment, was not promptly filed.2

      Appellants next contend that the trial court abused its discretion when

it failed to issue a rule to show cause under Rule 206.6 of the Pennsylvania

Rules of Civil Procedure as adopted by the Court of Common Pleas of

Philadelphia County.         Specifically, appellants assert that the trial court

abused its discretion by not holding a hearing or at least ordering

depositions.

      Pennsylvania Rule of Civil Procedure 206.4(a)(1) provides, “[e]xcept

as provided by subparagraph (2), a petition shall proceed upon a rule to

show cause, the issuance of which shall be discretionary with the court as

provided by Rule 206.5 unless the court by local rule adopts the procedure


2
  Because the petition was not timely filed, this court need not address the
remaining two prongs of the test for granting a petition to open a default
judgment.


                                            -8-
J. S67013/16


of Rule 206.6 providing for issuance as of course.” Pa.R.C.P. 206.4(a)(1).

The Court of Common Pleas of Philadelphia County adopted Local Rule 206.4

which adopted the procedure of Pennsylvania Rule of Civil Procedure 206.63

for all petitions filed pursuant to Pa.R.C.P. 206.1 et seq., such that upon the

filing of a petition, the motion court clerk shall issue a rule to show cause on

behalf of the court.

      Here, no rule to show cause was issued, but appellee was directed to

file an answer and did so. Although appellants argue that they were entitled

to discovery to determine whether there was the unjust enrichment claimed

by appellee and were entitled to discovery on the “a/k/a” allegation that,

they claim, was the heart of appellee’s case, this court does not agree. The

trial court could and did determine that the petition to open was untimely

without the benefit of a hearing or discovery. It would make no sense for

the trial court to prolong the proceedings by granting a discovery request

when the underlying petition is untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/22/2017

3
 This rule states that a rule to show cause should be issued as of course and
shall direct that an answer be filed to the petition within twenty days.


                                     -9-
