J-S17017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DILPREET BAJWA                            :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 IBRAHIM I. MAHMOUD AND AMIRA              :
 TIBIN                                     :
                                           :   No. 2584 EDA 2018
                    Appellants             :

                Appeal from the Order Entered July 19, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): 00831 February Term, 2018


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED MAY 07, 2019

      Appellants, Ibrahim I. Mahmoud and Amira Tibin, appeal pro se from

the order entered on July 19, 2018, which denied their petition to open default

judgment. We affirm.

      The trial court explained:

        The underlying matter in this case is a dispute over damages
        to a home that [Plaintiff, Dilpreet Bajwa (hereinafter
        “Plaintiff”)] leased to [Appellants]. Plaintiff brought suit in
        Municipal Court. On January 16, 2018, the Municipal Court
        entered judgment for [Appellants]. Plaintiff appealed to the
        Court of Common Pleas on February 12, 2018. Plaintiff filed
        an affidavit averring that [Appellants] were personally served
        with [the] notice of appeal and [the] case management order
        on February 18, 2018. Plaintiff filed a complaint on March 6,
        2018 and certified that a copy of the complaint was served
        on [Appellants’] by first class mail. [Appellants] failed to file
        an answer within [20] days of receiving the complaint.

        [The] parties attended a settlement conference on April 3,
        2018. The parties did not reach a resolution at the settlement
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         conference. Plaintiff sent [Appellants] a notice of intent to
         enter default judgment on April 3, 2018. Plaintiff filed a
         praecipe to enter default judgment on April 17, 2018.

Trial Court Opinion, 12/7/18, at 1-2 (some capitalization omitted).

       On April 23, 2018, Appellants filed a petition to open the default

judgment. However, Appellants did not attach a responsive pleading to their

petition to open.       See Pa.R.C.P. 237.3(a) (“A petition for relief from a

judgment . . . of default . . . shall have attached thereto a copy of the . . .

preliminary objections[] or answer which the petitioner seeks leave to file.”).

On July 19, 2018, the trial court held a hearing on Appellants’ petition and, at

the conclusion of the hearing, the trial court denied Appellants’ petition.

Appellants filed a timely notice of appeal.1

____________________________________________


1 The trial court ordered Appellants to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellants listed the following claims in their Rule
1925(b) statement:

         [1.] We acknowledge notice of appeal was received but the
         complaint was not, so we had no knowledge of it nor
         opportunity to respond to the complaint such that default
         should not have been entered. Especially in light of the fact
         we prevailed in the Municipal Court. [Plaintiff] has not
         presented evidence to the contrary that he properly served
         the complaint.

                                           ...

         [2.] The judge did not make the decision based on law and
         evidence.

         [3.] The judge argued that Amira Tibin and her petition to
         open default judgment was denied because she is not a



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       Among other procedural violations in Appellants’ brief is the absence of

a Rule 2116(a) statement. Normally, this would result in the automatic waiver
____________________________________________


         lawyer.     [Appellants’] words should be taken            into
         consideration equally as much as the Plaintiff’s lawyer.

         [4.] The judge should ask both [Appellants] questions not
         just Amira, the judge did not ask Ibrahim any questions and
         immediately denied the petition to open default judgment
         before Ibrahim could defend himself against the Plaintiff’s
         lawyer’s claim that Ibrahim was given a copy of the complaint
         during the April 3rd conference.

         [5.] The judge did not listen to [Appellants] when the
         Plaintiff’s lawyer said the supplement was added to the
         petition to open default judgment by Amira Tibin in May
         claiming that time was a factor, the judge should look at the
         evidence and know that time wasn’t a factor because
         [Appellants] filed a petition to open default judgment on April
         23rd, while the default judgment was entered on April 17th.

         [6.] The judge asked Amira why she didn’t pay the Plaintiff
         the judgment money. The judge did not take Amira’s words
         that Amira doesn’t owe the landlord any [(illegible)] paid rent
         every month, moved on time, left the house in good
         condition, and paid the water bill. The Plaintiff removed parts
         of the original lease and submitted the edited version to the
         court.

                                           ...

         [7.] The Plaintiff did not serve [Appellants] with any default
         judgment notice. The Plaintiff instead sent a letter stating
         that the Plaintiff served [Appellants] with the ten day notice
         of intent to enter default judgment on April 2nd, 2018 via first
         class mail.

Appellants’ Rule 1925(b) Statement, 9/12/18, at 1-7 (some capitalization
omitted).




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of Appellants’ claims on appeal. See Pa.R.A.P. 2116(a) (“The statement of

the questions involved must state concisely the issues to be resolved,

expressed in the terms and circumstances of the case but without unnecessary

detail. The statement will be deemed to include every subsidiary question

fairly comprised therein. No question will be considered unless it is

stated in the statement of questions involved or is fairly suggested

thereby.”) (emphasis added). However, as we are able to ascertain from

Appellants’ brief that the crux of their argument is that the trial court erred in

denying their petition to open the default judgment, we will address that

issue.2

       As our Supreme Court held in Schultz v. Erie Insurance Exchange:

“A petition to open a judgment is addressed to the equitable powers of the

court and is a matter of judicial discretion. The court will only exercise this

discretion when (1) the petition has been promptly filed; (2) a meritorious

defense can be shown; and (3) the failure to appear can be excused.” Schultz

v. Erie Ins. Exch., 477 A.2d 471, 472 (Pa. 1984).

       Pennsylvania Rule of Civil Procedure 237.3, entitled “Relief from

Judgment of Non Pros or by Default,” was adopted after our Supreme Court's

opinion in Schultz. Rule 237.3 provides:
____________________________________________


2 See Smathers v. Smathers, 670 A.2d 1159, 1160 (Pa. Super. 1996)
(noting that “this court is willing to liberally construe materials filed by a pro
se litigant,” but warning that an “appellant is not entitled to any particular
advantage because she lacks legal training”) (quotations and citations
omitted).


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          (a) A petition for relief from a judgment of non pros or of
          default entered pursuant to Rule 237.1 shall have attached
          thereto a copy of the complaint, preliminary objections, or
          answer which the petitioner seeks leave to file.

                                         ...

          (b)(2) If the petition is filed within ten days after the entry of
          a default judgment on the docket, the court shall open the
          judgment if one or more of the proposed preliminary
          objections has merit or the proposed answer states a
          meritorious defense.

Pa.R.C.P. 237.3.

        However, as the note to Rule 237.3 makes clear, “Rule 237.3 does not

change the law of opening judgments;” rather, the three required elements,

as specified by our Supreme Court in Schultz, are applicable to every petition

to open a default judgment. Pa.R.C.P. 237.3 note. The effect of Rule 237.3 is

simply that, when a party attaches a proposed answer or proposed preliminary

objections to a petition to open, the rule “supplies two of the three requisites

for opening such judgments by presupposing that a petition filed as provided

by the rule is timely and with reasonable explanation or legitimate excuse for

the inactivity or delay resulting in the entry of the judgment.” Pa.R.C.P. 237.3

note.

        In this case, Appellants did not attach a proposed responsive pleading

to their petition to open. As such, Appellants’ “petition to open is not within

the scope of Rule 237.3(b);” and, for Appellants to be entitled to relief,

Appellants must “proceed pursuant to case law and meet the standards of

Schultz.” Id. However, as the trial court explained, Appellants failed to meet


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the standards of Shultz because Appellants did not show that they have a

meritorious defense to Plaintiff’s claims and Appellants did not demonstrate

that their “failure to appear can be excused.” See Schultz, 477 A.2d at 472.

The trial court stated:

        Here, [Appellants] have not submitted any evidence of a
        meritorious defense. [Appellants] claimed at the July 19,
        2018 hearing that they do not owe Plaintiff any money, but
        did not substantiate these claims.

        Further, [Appellants] did not present an excuse for their
        failure to appear. [Appellants] claim they failed to appear
        because they were not served with Plaintiff’s complaint.
        However, an affidavit of service was filed on March 14, 2018,
        evidencing proper service. Moreover, [Appellant] Mahmoud
        attended the April 3, 2018 settlement conference.
        [Appellant] Mahmoud would only have known to attend the
        settlement conference because this information was served
        on him.       [Appellant] Tibin even acknowledged that
        [Appellants] received something in the mail but stated “this
        does not apply to us.”

        Based on the above, [Appellants did not establish] . . . a
        meritorious defense[] or show[] that the [trial] court should
        excuse their failure to appear. Therefore, [Appellants did]
        not meet the requirements for the [trial] court to open the
        default judgment.

Trial Court Opinion, 12/7/18, at 3-4 (citations and some capitalization

omitted).

      We agree and conclude that the trial court did not err when it refused

to open the default judgment against Appellants.

      Next, Appellants claim that the trial court erred in denying their petition

to open because Plaintiff “did not serve [Appellants] with any default judgment




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notice.”     Appellants’ Brief at 3-4.     The record belies Appellants’ claim.

Certainly, the docket entry for April 17, 2018 declares:

           Praecipe for entry of default judgment filed. Judgment in
           favor of [Plaintiff] and against [Appellants] for failure to file
           answer within required time. Pro-prothonotary. Notice
           under Rule 236 given. Notice under 237.1 given.
           Affidavit of non-military service filed. Damages assessed:
           $9,141.95.

Docket Entry, at 4/17/18 (emphasis added); see also Praecipe to Enter

Judgment by Default, 4/17/18, at Certificate of Service.

      The record clearly reflects that Appellants were given notice that default

judgment was entered against them. Appellants’ claim to the contrary fails.

      Appellants also claim that the trial court erred in denying the petition to

open default judgment since “[t]he trial court did not properly consider the

evidence Appellants presented” and “[t]he trial court was biased against

Appellants because they were pro se.” Appellants’ Brief at 7-11. The former

claim fails because Appellants did not present any evidence during the July

19, 2018 hearing that would have enabled the trial court to open the default

judgment. See N.T. Hearing, 7/19/18, at 1-13. The latter claim fails because

the trial court actually provided Appellants with greater protection due to their

pro se status. To be sure, Appellants failed to attach a responsive pleading to

their petition to open and Appellants’ petition did not allege a meritorious

defense. See Appellants’ Petition to Open Default Judgment, 4/23/18, at 1-

5; Appellants’ Supplement to Petition to Open, 5/2/18, at, 1-3. The trial court

could have thus simply denied Appellants’ petition outright. Rather than doing


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so, the trial court held a hearing on the petition, to see whether Appellants

could supplement their petition with testimony or evidence to demonstrate

that they were entitled to open the default judgment.      See N.T. Hearing,

7/19/18, at 11-12 (the trial court explained to Appellant Tibin: “Ma’am, I

know you’re not a lawyer, but there are some things that have to be met

before I open a default judgment. Based upon your testimony today, that has

not been satisfied.   So unfortunately, by law I cannot open this judgment

against you because the certain elements that need to be met have not been

met today. That’s why I asked you a series of questions to try to see if I can

get some information to see if I could open it”).

      Appellants simply failed to produce any evidence that would have

enabled the trial court to open the default judgment; and, as a result,

Appellants are not entitled to any relief on appeal.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




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