J-S58034-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN COUTURIAUX                                 IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

WILLIAM S. ALBERT

                         Appellant                   No. 462 WDA 2014


              Appeal from the Order Entered February 26, 2014
              In the Court of Common Pleas of Clearfield County
                   Civil Division at No(s): No. 2013-446-CD


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                   FILED SEPTEMBER 19, 2014

     Appellant, William S. Albert, appeals from the order entered in the

Clearfield County Court of Common Pleas, denying Appellant’s petition to

open a default judgment. We affirm.

     In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

     Appellant raises the following issues for our review:

        DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR
        ABUSE ITS DISCRETION BY REFUSING TO OPEN THE
        JUDGMENT ENTERED IN THIS MATTER IN FAVOR OF
        [APPELLEE] BY FINDING THAT [APPELLANT] DID NOT
        PROMPTLY FILE HIS PETITION TO OPEN WHERE
        [APPELLANT] PRESENTED SUBSTANTIAL EVIDENCE THAT
        HE ACTED IN A TIMELY MANNER UNDER THE
        CIRCUMSTANCES SINCE [APPELLANT] CANNOT READ
_________________________

*Retired Senior Judge assigned to the Superior Court.
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         NARRATIVE PASSAGES, MR. GILBERT HAD TAKEN ALL OF
         [APPELLANT’S] MAIL RELATING TO THIS LAWSUIT AND
         HAD ASSURED [APPELLANT] THAT HE WAS TAKING CARE
         OF THE CASE, AND THE TIME THAT ELAPSED BETWEEN
         [APPELLANT’S] RECEIPT OF THE NOTICE OF THE
         SHERIFF’S SALE ON NOVEMBER 22, 2013 AND THE FILING
         OF THE PETITION TO OPEN ON DECEMBER 31, 2013 IS
         SIGNIFICANTLY SHORTER THAN THE DELAY IN QUEEN
         CITY AND OTHER CASES CITED BY [APPELLANT] BELOW?

         DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR
         ABUSE ITS DISCRETION BY REFUSING TO OPEN THE
         JUDGMENT ENTERED IN THIS MATTER IN FAVOR OF
         [APPELLEE] BY FINDING THAT [APPELLANT] DID NOT
         PROVIDE A REASONABLE EXCUSE FOR DEFAULT WHERE
         [APPELLANT] PRESENTED SUBSTANTIAL EVIDENCE THAT
         HE CANNOT READ OR WRITE NARRATIVE PASSAGES AND
         WAS THE VICTIM OF FINANCIAL ELDER ABUSE BY
         RICHARD GILBERT WHO ASSURED HIM HE WAS TAKING
         CARE OF THIS CIVIL ACTION WHEN HE IN FACT WAS
         NOT?

         DID THE TRIAL COURT COMMIT AN ERROR OF LAW OR
         ABUSE ITS DISCRETION BY REFUSING TO OPEN THE
         JUDGMENT ENTERED IN THIS MATTER IN FAVOR OF
         [APPELLEE] WHEN IT DID NOT EXAMINE EACH PRONG OF
         THE OPEN JUDGMENT TEST IN LIGHT OF ALL THE
         CIRCUMSTANCES AND EQUITIES OF THE CASE AND
         INSTEAD ANALYZED EACH PRONG OF THE TEST
         SEPARATELY WITH BLINDERS ON AND IGNORED
         [APPELLANT’S]    SUBSTANTIAL    EVIDENCE    THAT
         ESTABLISHED "SOME SHOWING" WITH REGARD TO EACH
         PART OF THE TEST?

(Appellant’s Brief at 3-4).

      The decision to grant or deny a petition to open a default judgment is

a matter of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90,

477 A.2d 471 (1984). A petition to open a default judgment is an appeal to

the court’s equitable powers, and absent an error of law or an abuse of


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discretion, this Court will not disturb that decision on appeal.              Reid v.

Boohar, 856 A.2d 156 (Pa.Super. 2004).

          Judicial discretion requires action in conformity with law on
          facts and circumstances before the trial court after hearing
          and consideration. Consequently, the court abuses its
          discretion if, in resolving the issue for decision, it
          misapplies the law or exercises its discretion in a manner
          lacking reason.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted).

       Where a petition to open a default judgment is not filed within ten (10)

days of entry of the default judgment,1 the movant must (1) promptly file a

petition to open, (2) offer a justifiable excuse for the delay that caused the

default, and (3) aver a meritorious defense that, if proved at trial, would

afford the defendant relief. Reid, supra at 160. To succeed, the petitioner

must meet all three requirements.              US Bank N.A. v. Mallory, 982 A.2d

986, 995 (Pa.Super. 2009); Duckson v. Wee Wheelers Inc., 620 A.2d

1206 (Pa.Super. 1993). In other words, if the petitioner fails to meet even

one requirement for opening judgment, the court can deny relief without

even    considering     arguments      made      with   regard   to   the   two   other

requirements. Id. at 1209.
____________________________________________


1
  Rule 237.3(b) of the Pennsylvania Rules of Civil Procedure provides: “If the
petition [challenging the default judgment] is filed within ten days after the
entry of the judgment on the docket, the court shall open the judgment if
the proposed complaint or answer states a meritorious cause of action or
defense.” Pa.R.C.P. 237.3(b).



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      If the petitioner has made some showing as to all three prongs of the

test, then the court is entitled to consider each point in light of all the

“circumstances and equities of the case.”        Id. at 1209.   Courts “must

determine whether there are equitable considerations which require that a

defendant, against whom a default judgment has been entered, receive an

opportunity to have the case decided on the merits.” Id. at 1208.

      With respect to the first requirement that the petitioner promptly file a

petition to open, this Court does not “employ a bright line test”; courts focus

“on two factors: (1) the length of the delay between discovery of the entry

of the default judgment and filing the petition to open judgment, and (2) the

reason for the delay.” Flynn v. America West Airlines, 742 A.2d 695, 698

(Pa.Super. 1999). Given an acceptable reason for the delay, one month or

less between the entry of the default judgment and the filing a petition for

relief from the judgment typically meets the time requirement for a prompt

filing of a petition for relief. Myers v. Wells Fargo Bank, N.A., 986 A.2d

171, 176 (Pa.Super. 2009).         See also US Bank N.A., supra (comparing

cases and rejecting eighty-two day interval between default judgment and

petition for relief as tardy).

      With respect to the second requirement of a justifiable excuse, courts

look to the specific circumstances of the case to determine whether the

petitioner offered a legitimate explanation for the delay that caused entry of

a default judgment.      Id.     “While some mistakes will be excused, …mere


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carelessness will not be….” Bahr v. Pasky, 439 A.2d 174, 177 (Pa.Super.

1981).   In Flynn, for example, the petitioner’s unintentional failure to act

due to a defective mail receipt system was not considered a legitimate

explanation for the delay that caused entry of the default judgment. Flynn,

supra at 699. Finally, as to asserting a meritorious defense, the petitioner

must aver facts that if proved at trial would justify relief.   See Duckson,

supra.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Fredric J.

Ammerman, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, dated February 25, 2014, at 1-8)

(regarding test to succeed on petition to open judgment: (a) Appellant’s

12/31/13 petition to open was not promptly filed under circumstances;

Appellant was served complaint on 4/2/13 and 9 months passed until he

filed any responsive document; given Appellant’s prior experience with legal

proceedings, receipt of complaint and subsequent documents in matter

should have put him on notice to seek legal assistance; moreover, Appellant

was aware long before Appellant’s 12/31/13 filing that Mr. Gilbert (who

allegedly told Appellant he would take care of lawsuit for him) was taking

advantage of Appellant; authorities filed criminal complaint against Mr.

Gilbert for his scams in 9/13, which should have prompted Appellant to


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investigate whether Mr. Gilbert was actually handling suit for Appellant or

scamming him; Appellant’s belief in Mr. Gilbert was not justifiable; even if

Appellant did not know of execution on his property until 11/22/13,

Appellant still waited over one month before retaining attorney, which is

unreasonable under circumstances; (b) Appellant’s excuse that he thought

Mr. Gilbert was handling matter was unreasonable; Appellant should have

investigated status of his case; Appellant was involved in litigation before

and should have known consequences for not participating in case; Appellant

failed to proffer reasonable excuse for delay; (c) Appellant contends

Appellee failed to pay real estate taxes for parcel from 2003 onward in

breach of purchase agreement; any breach of agreement entitles Appellant

to terminate agreement and retain all monies paid as liquidated damages;

Appellant   has   made    sufficient   allegations   of   plausible   (but   perhaps

disingenuous) defense to fulfilling his contractual duties; nevertheless,

Appellant failed to establish other two prongs of test to succeed on petition

to open, where Appellant did not file petition to open promptly and had no

reasonable excuse for delay in answering complaint). Accordingly, we affirm

on the basis of the trial court’s opinion.

      Order affirmed.



Judgment Entered.




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J-S58034-14


Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2014




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