J-A02026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HARLEYSVILLE MUTUAL INS. CO.                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

RACHELLE SOLOMON

                         Appellant                   No. 1623 EDA 2014


               Appeal from the Order Entered on May 7, 2014
           In the Court of Common Pleas of Montgomery County
                     Civil Division at No.: 2013-08342


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED APRIL 23, 2015

      Rachelle Solomon appeals the May 7, 2014 order denying her petition

to open the default judgment that was entered against her on June 17,

2013. We affirm.

      Harleysville Mutual Insurance Company (“Harleysville”) commenced

the underlying action following a motor vehicle collision between Solomon

and a street sweeper insured by Harleysville.     The trial court summarized

the factual and procedural history of this case as follows:

      Harleysville Mutual Insurance Company filed suit against
      Rachelle Solomon seeking damages based upon the amounts
      paid by Harleysville on behalf of its insured, Industrial Grounds
      Maintenance (“Industrial or “the Insured”), as outlined in
      Harleysville’s complaint. According to the complaint, [Solomon]
      was driving negligently when she struck the rear of the Insured’s
      vehicle. Harleysville settled the damage claim of Industrial for
      $25,882.67. Under the insurance policy, Harleysville asserts
      [that] it is subrogated to Industrial for the amount it paid on
      Industrial’s behalf as a result of the collision caused by Solomon.
J-A02026-15


       In this litigation, Harleysville seeks to recover the amount paid
       on behalf of Industrial—$25,882.67—from Solomon.

       Harleysville filed and served the complaint on Solomon and she
       failed to file a timely response. The relevant timeline is as
       follows:

          4/10/2013         Complaint filed.

          5/6/2013          Solomon served on 5/6/2013, Sheriff’s
                            return of service showing date of service as
                            5/6/2013 was docketed 5/9/2013.[1]

          6/17/2013         Default judgment entered.[2]

          6/17/2013         Pa.R.C.P. 236 notice mailed.

____________________________________________


1
       The proof of service filed of record indicates that the recipient of
service was one Carol Puzzella (the spelling may be incorrect due to
illegibility), who was served on May 6, 2013, at the address provided on the
Order for Service. The Sheriff unsuccessfully attempted service first on April
30, 2013, and left a note for Solomon. On May 2, 2013, the Sheriff again
attempted service but failed, observing that the note was no longer where
the Sheriff left it. The named recipient of the service rendered on May 6,
2013, was described as a “PIC,” presumably indicating that Puzzella was the
“person in charge” of Solomon’s residence. As such, absent a showing to
the contrary, Puzzella was an appropriate recipient of service under
Pa.R.C.P. 402(a)(2)(1), which permits service by handing the complaint to
“an adult person in charge of” “the residence of the defendant.” Solomon
does not allege that service was not effectuated upon Puzzella, that Puzzella
was not a proper recipient of service under Rule 402(a)(2)(1), or that the
complaint was not conveyed by Puzzella to Solomon. Accordingly, we
assume that service was properly rendered, and that Solomon knew that she
had been named as a defendant in the instant suit within the period during
which she could respond timely.
2
     According to Solomon, on June 11, 2013, after service of the instant
complaint and shortly before default judgment was entered in the instant
matter, she filed a separate suit against the driver of the street sweeper and
Industrial at a different docket number. Brief for Solomon at 7. Still later,
on August 7, 2013, the driver of the street sweeper filed his own suit against
Solomon. Id.



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          7/2/2013          Entry of Appearance of Marc F. Greenfield,
                            Esq., for Solomon.

          7/2/2013          Answer and New Matter to the complaint
                            filed by Solomon.[3]

          8/19/2013         Petition to open/strike judgment filed by
                            Solomon.

          9/5/2013          Harleysville’s     reply   to   the   petition   to
                            open/strike.

          3/14/2014         Order scheduling argument for April 24,
                            2014.

          5/7/2014          Order denying petition to open/strike.

       Default judgment for failure to answer the complaint was
       entered on June 17, 2013.     More than two months later,
       Solomon filed the petition to open/strike judgment.     After
       argument, and reviewing the filings in this matter, the court
       denied Solomon’s petition.

Trial Court Opinion, (“T.C.O.”), 8/11/2014, at 1-3 (footnotes omitted;

modified for clarity).

       On May 30, 2014, Solomon timely filed a notice of appeal. On June 4,

2014, the trial court directed Solomon to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                 Solomon timely

filed her Rule 1925(b) statement on June 23, 2014. On August 11, 2014,

the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).4

____________________________________________


3
      In tandem with Solomon’s answer, Solomon also sought to consolidate
the three matters spawned by the accident.
4
       While Solomon’s concise statement was filed in a timely manner, the
trial court noted that Solomon failed to comply with Rule 1925(b). T.C.O.,
8/11/2014, at 4. The court noted that, “[r]ather than providing a concise
(Footnote Continued Next Page)


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      Solomon raises the following issue for our review:               “Did the court

improperly    deny       [Solomon’s]      [p]etition   to   [o]pen/[s]trike   [d]efault

[j]udgment in this matter?” Brief for Solomon at 4. Preliminarily, we note

that Solomon provided no argument in her petition in support of striking the

default judgment.         Furthermore, Solomon notes in her brief that, she

“cannot confirm that the [d]efault [j]udgment was properly taken in this

matter. [Solomon] has no evidence that it was not. Accordingly, [Solomon]

is only arguing that the [d]efault [j]udgment should be [o]pened based upon

the equities of the situation.” Brief for Solomon at 13 n.7. Therefore, this

Court will consider only the merits of Solomon’s equitable challenge to the

trial court’s refusal to open the judgment.

      The legal standard governing our review is as follows:

      A petition to open a default judgment is addressed to the
      equitable powers of the court and the trial court has discretion to
      grant or deny such a petition. The party seeking to open the
      default judgment must establish three elements:             (1) the
      petition to open or strike was promptly filed; (2) the default can
      be reasonably explained or excused; and (3) there is a
      meritorious defense to the underlying claim. The court’s refusal
      to open a default judgment will not be reversed on appeal unless
      the trial court abused its discretion or committed an error of law.
      An abuse of discretion is not merely an error in judgment; rather
      it occurs when the law is overridden or misapplied, or when the
      judgment exercised is manifestly unreasonable or the result of
      partiality, prejudice, bias or ill-will. Moreover, [the Superior]
                       _______________________
(Footnote Continued)

statement, [Solomon] instead filed a narrative of events in a numbered
paragraph form.” Id. We agree. However, the trial court elected to
address the issue that Solomon raises on appeal. Accordingly, we will
review the trial court’s decision on the merits.



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      Court    must   determine   whether    there   are    equitable
      considerations [that] weigh in favor of opening the default
      judgment and allowing the defendant to defend the case on the
      merits. Where the equities warrant opening a default judgment,
      [the Superior] Court will not hesitate to find an abuse of
      discretion.

Stabley v. Great Atl. & Pac. Tea Co., 89 A.3d 715, 719 (Pa. Super. 2014)

(citation omitted). Critically, “the trial court cannot open a default judgment

based on the ‘equities’ of the case when the defendant has failed to establish

all three of the required criteria.” Myers v. Wells Fargo Bank, N.A.,

986 A.2d 171, 176 (Pa. Super. 2009) (emphasis added).

      With regard to the first element that Solomon must prove—that the

petition to open was promptly filed—the trial court explained as follows:

      Establishing that the petition to open was promptly filed is one of
      the requirements in order to obtain relief from a default
      judgment. There is no established statutory time limit within
      which a petition to open must be filed in order to be considered
      timely. Appellate court decisions, however, have found petitions
      to open filed less than one month after entry of a default
      judgment to be prompt. See Kelly v. Siuma, 34 A.3d 86, 92
      (Pa. Super. 2011) (citations omitted).        Further, whether a
      petition to open is promptly filed “is measured from the date that
      notice [is received of the entry of default judgment].” Alba v.
      Urology Associates of Kingston, 598 A.2d 57, 58 (Pa. Super.
      1991) (citing Ruczynski v. Jesray Constr. Corp., 326 A.2d
      326, 328 (Pa. 1974)).

      The record reflects that Solomon was served with the complaint
      on May 6, 2013. Forty-two days later, default judgment was
      entered on June 17, 2013, along with an affidavit of non-military
      service, notice pursuant to Pa.R.C.P. 236, and a copy of the ten-
      day-notice. Solomon’s petition to open, filed sixty-three days
      after entry of default judgment on August 19, 2013, was clearly
      untimely. As provided in Kelly, “[i]n cases where the appellate
      courts have found a ‘prompt’ and timely filing of the petition to



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J-A02026-15


      open a default judgment, the period of delay has normally been
      less than one month.” 34 A.2d at 92 (citations omitted).

T.C.O., 8/11/2014, at 7-8 (footnote omitted; modified for clarity).

      We agree with the trial court that delays in excess of a month—and,

not   infrequently,   delays   of   less   than   a   month—have   resulted   in

determinations of untimeliness.      See, e.g., Wells Fargo Bank, N.A., v.

Vanmeter, 67 A.3d 14, 18 (Pa. Super. 2013) (noting that, in McCoy v.

Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa. 1973), a two and one-

half-week delay was deemed insufficiently prompt); Kelly, supra. Although

we have identified no cases that address the situation presented in this case,

where the defendant filed an untimely answer in lieu of a petition to open on

July 2, 2014 (fifteen days after entry of default judgment), we are aware of

no precedent, nor any equitable principle, that requires us to grant clemency

for that misstep when the defendant does not file a petition to open until

approximately eight weeks after the entry of judgment, especially when,

during the interim, counsel learned at least of the existence of the complaint

and filed an answer thereto, evidently without first consulting the docket.

Indeed, that Solomon’s counsel evidently understood as early as July 2,

2014, that an action was pending that required a response undermines the

notion of promptness: To have filed an answer in a previously overlooked

action without having consulted the docket to determine the case’s

procedural posture appears to us to be a material error of omission.




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J-A02026-15



Accordingly, we find no abuse of discretion in the trial court’s determination

that Solomon’s petition was not promptly filed.

       The second prong of the standard for opening a default judgment

requires that Solomon demonstrate that she had a reasonable excuse or

explanation for failing to file a responsive pleading in the time allotted.

Solomon’s argument attributes her delay to a lack of professional courtesy

on the part of opposing counsel.               Specifically, she submits, without any

support in the record, that the parties had been engaged in discussions as

early as December of 2011, yet Harleysville did not alert counsel that it was

filing suit or, later, that it was seeking a default judgment in the absence of

a timely responsive pleading.         Brief for Solomon at 5; see also Brief for

Solomon at 6-7 (“The only reason a more timely Petition to Open Default

Judgment was not filed was because Appellant’s counsel initially filed an

Answer to the Complaint [that] was accepted by the [trial c]ourt and had no

reason to believe, therefore, [that] a default judgment had been entered.”).

Because counsel did not receive the putative courtesy of a direct

communication regarding the filing of the complaint, nor informal notice of

the default,5 Solomon argues that she acted reasonably in filing an untimely

answer rather than a petition to open. Id. at 13-17.
____________________________________________


5
      Because counsel for Solomon did not enter an appearance on behalf of
Solomon until after the entry of a default judgment, we are unaware of any
rule requiring notice to counsel of any legal actions Harleysville took against
Solomon. Solomon concedes the absence of such a rule. Brief for Solomon
(Footnote Continued Next Page)


                                           -7-
J-A02026-15



      Taking Solomon’s claims at face value—not least, because they are not

disputed by Harleysville—we do not disagree that the events described

suggest what might fairly be identified as sloppiness or discourtesy on the

part of Harleysville, although we are unwilling on this record to credit

Solomon’s assertion that this was part and parcel of a “pattern of behavior”

designed to prevent Solomon’s counsel from knowing about the suit, see id.

at 14, ignorance more fairly attributed to Solomon, who failed to apprise her

own attorney that she had been served with the instant complaint. 6 To the

extent that Solomon and Harleysville had engaged in discussions concerning

the underlying incident, it would seem reasonable to expect such courtesy.

However, we are unaware of any rule that required Harleysville to act

differently than it did.        Moreover, that Solomon does not challenge the

propriety and adequacy of service, highlights the fact that, despite having
                       _______________________
(Footnote Continued)

at 14 (“Even though there is no legal requirement to provide notice of
something of this nature, the silence in failing to provide [Solomon’s]
counsel notice that a [d]efault [j]udgment was filed continued a pattern of
behavior from [Harleysville’s] counsel where they purposefully kept quiet in
hopes of not having [Solomon’s] counsel learn of the posture of this case.”).
6
      Solomon claims that, during argument before the trial court, which
was not transcribed, Harleysville described its failure to provide notice to
Solomon’s counsel as a product of “inadvertent neglect.” Brief for Solomon
at 14 n.8. This provides just one of numerous instances in which Solomon
describes events and exchanges that occurred at the untranscribed
proceedings. See id. at 5 n.1, 6 n.4, 7 n.5, 8 n.6, 14. We may not consider
any evidence that is not found in the certified record. In re J.C., 5 A.3d
284, 288 (Pa. Super. 2010). Accordingly, these comments are of no use to
us.




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J-A02026-15



received the complaint, and despite already having retained counsel in

connection with the related lawsuits, she failed to inform her attorney of the

pending complaint in a timely fashion.7

       In light of these events, the trial court concluded as follows:

       [Solomon] has established no reasonable excuse for her failure
       to file a timely answer to the complaint. The complaint included
       the requisite notice to plead.      The notice language on the
       complaint’s cover sheet specifically included the warning that by
       failing to take action within twenty days, “the case may proceed
       without you and a judgment may be entered against you by the
       court.”     The record provides that [a person in charge of
       Solomon’s residence] was served with the complaint by the
       Sheriff on May 6, 2013. There is no explanation for [Solomon’s]
       lack of response. There is also nothing of record to explain the
       delay between the entry of default judgment on June 17, 2013,
       and the filing of the petition to open sixty-three days later on
       August 19, 2013.

       Further, [Solomon’s] attorney claims that in preparing to draft a
       motion to consolidate the within matter with a related action
       filed by Solomon captioned Solomon v. Mamadou, he became
       aware of the default judgment. Clearly, Solomon’s attorney was
       aware of the present case because he was preparing to file a
       motion to consolidate. . . .     [Solomon] has provided no
       reasonable excuse for her failure to file a timely answer to the
       complaint.

T.C.O., 8/11/2014, at 9-10 (footnotes omitted; modified for clarity).

____________________________________________


7
      This is reinforced by the fact that Solomon’s counsel has indicated that
he only learned of the instant lawsuit when he was reviewing dockets in
preparing a motion to consolidate the three cases—i.e., that even as of some
period spanning May 6, 2013, when she received service, June 11, 2013,
when she filed her own suit, and July 2, 2014, when counsel filed her
untimely answer, she had not yet informed her attorney that she had been
served with the instant complaint.



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        While the trial court determined that Solomon also had failed to

establish the final element—the showing of a meritorious defense—we need

not review that conclusion.     Because the trial court did not abuse its

discretion in finding that Solomon failed to satisfy the other two elements

required to prevail on her petition to open, she is not entitled to relief

independently of the merit of her proposed defense. See Myers, 986 A.2d

at 176. While the unusual circumstances of this case give us pause, in light

of the case’s timeline and the soundness of the trial court’s reasoning, we do

not find that the court abused its discretion in denying Solomon’s petition to

open.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




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