J-S43029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OBERMAYER REBMANN MAXWELL &                    IN THE SUPERIOR COURT OF
HIPPEL, LLP                                          PENNSYLVANIA

                        Appellee

                   v.

THIRD PILLAR SYSTEMS, INC. AND THE
BUZBEE LAW FIRM

Appeal of: The Buzbee Law Firm                      No. 3340 EDA 2014


            Appeal from the Order Entered November 12, 2014
           In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): February Term, 2014, No. 01063


BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                     FILED SEPTEMBER 04, 2015

     Appellant, The Buzbee Law Firm, appeals from the order entered

November 12, 2014, in the Court of Common Pleas of Philadelphia County,

which denied its petition to open the default judgment. We affirm.

     Appellant is a law firm based in Houston, Texas.         In June 2010,

Appellant acted as an agent to retain Appellee, Obermayer Rebmann

Maxwell & Hippel, LLP, to serve as local counsel in the Eastern District of

Pennsylvania on behalf of Appellant’s client, Third Pillar Systems, Inc. The

trial court summarized the subsequent history of this case as follows.

            The instant case commenced February 11, 2014, with the
     filing of a Complaint by Appellee Obermayer Rebmann Maxwell &
     Hippel, LLP against Appellant and Third Pillar Systems, Inc. The
     [C]omplaint raised counts of breach of contract, quantum
     meruit, and action on an account stated.
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            On February 27, 2013, Appellee filed an Affidavit of
      Service of Complaint upon Appellant by certified mail on
      February 18, 2014. The Complaint was mailed to Appellant at JP
      Morgan Chase Tower, 600 Travis Ste 7300, Houston, TX, 77002.

            On May 28, 2014, Appellee sent a Notice of Intent to Enter
      Default Judgment to Appellant via certified mail and regular first
      class mail.

           On June 10, 2014, Appellee filed a Praecipe for Judgment
      by Default in the amount of $49,378.01.

              On September 19, 2014, Appellant filed a Petition to Open
      Judgment, arguing that service of the [C]omplaint was not
      properly effectuated as Appellant’s proper name was Anthony G.
      Buzbee, [L.P.] and that Appellant had consequently not had an
      opportunity to answer and/or respond to the Complaint and
      present its meritorious defenses.           Additionally, in its
      memorandum of law, Appellant argued that it “simply acted as
      an agent to retain [Appellee] to serve as local counsel …
      [Appellant] was not a named defendant in the underlying
      litigation and nowhere in the fee agreement did [Appellant]
      agree to guarantee or be responsible for the fees of Third Pillar.”

            On October 14, 2014, Appellee filed an Answer in
      Opposition to Appellant’s Petition.        The Answer denied
      Appellant’s averments and further stated that “The Buzbee Law
      Firm” was the name regularly used by Appellant [on] letterhead
      [in] a letter in which it acknowledged that it was a party to the
      lawsuit. See Answer in Opposition, Exhibit B.

            On November 7, 2014, following consideration of the
      relevant record, [the trial court] denied Appellant’s Petition to
      Open Judgment.

Trial Court Opinion, 2/3/15, at 1-2. This timely appeal followed.

      Appellant raises the following issue for our review.

      Whether the trial [c]ourt below erred in denying a Petition to
      Open a Default Judgment in favor of Appellant Buzbee where
      ineffective service was made and there exists meritorious
      defenses to the claims set forth in the Complaint?

Appellant’s Brief, at 3.



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      Our standard of review provides that

      a petition to open a default judgment is an appeal to the
      equitable powers of the court, and absent an error of law or a
      clear, manifest abuse of discretion, it will not be disturbed on
      appeal. An abuse of discretion occurs when a trial court, in
      reaching its conclusions, overrides or misapplies the law, or
      exercises judgment which is manifestly unreasonable, or the
      result of partiality, prejudice, bias or ill will.

Kelly v. Siuma, 34 A.3d 86, 91 (Pa. Super. 2011) (citation omitted),

appeal denied, 42 A.3d 294 (Pa. 2012).

      “Generally speaking, a default judgment may be opened if the moving

party has (1) promptly filed a petition to open the default judgment, (2)

provided a reasonable excuse or explanation for failing to file a responsive

pleading, and (3) pleaded a meritorious defense to the allegations contained

in the complaint.”    Id., at 92 (citations omitted).      “The timeliness of a

petition to open a judgment is measured from the date that notice of the

entry of the default judgment is received.” Id. (citation omitted). Normally,

in cases in which the court has found a petition to open to have been prompt

and timely filed, the period of delay has been under one month.          See id.

(collecting cases).

      Instantly, the trial court concluded that Appellant failed to satisfy even

the first prong of the test, in that it did not promptly file its petition to open

the default judgment until September 19, 2014—101 days after it was

entered on June 10, 2014. This delay is patently unreasonable. See, e.g.,




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US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (finding 82

day delay was not timely).

      Although Appellant contends that it never received notice of the

lawsuit or of the entry of default judgment, the record belies this assertion.

As correctly noted by the trial court, “[s]ervice [of the complaint] was sent

to the address of [Appellant’s] Houston, Texas principal location by certified

and first class regular mail. The return receipt in the affidavit of service was

signed [on February 18, 2014] and received, and included in Appellee’s

affidavit [filed February 27, 2014].” Trial Court Opinion, 2/3/15, at 3. See

also, Plaintiff’s Response to Defendant’s Petition to Open Default Judgment,

10/14/14, at Exhibit A.   Appellant specifically acknowledged receipt of the

complaint in a letter delivered to Third Pillar Systems, Inc. by fax and

certified mail on March 18, 2014. See id., at Exhibit B. Appellee delivered

the 10-day notice of praecipe to enter default judgment to Appellant via first

class and certified mail on May 28, 2014, and Appellant indicated receipt of

the notice when it signed and returned the certified mail return of service

form on June 2, 2014. See id., at Exhibit D. After receiving no response,

Appellee filed a praecipe to enter default judgment with the prothonotary

and delivered notice to Appellant on June 10, 2014. See id., at Exhibit E.

      Appellant does not contest the validity of the signed certified mail

return of service forms or the correspondence written on firm letterhead that

explicitly referenced Appellee’s lawsuit. Clearly, it cannot now claim lack of

knowledge of the judgment as an excuse for failing to file a timely petition to

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open. We therefore agree with the trial court that it was unreasonable for

Appellant to wait 101 days to file a petition to open the default judgment.

      We likewise agree that Appellant fails to satisfy the second prong, i.e.,

that it had a justifiable excuse for failing to file a timely response to

Appellee’s complaint.       “[W]hether an excuse is legitimate is not easily

answered and depends upon the specific circumstances of the case.” US

Bank N.A., 982 A.2d at 995 (citation omitted). “The appellate courts have

usually addressed the question of legitimate excuse in the context of an

excuse for failure to respond to the original complaint in a timely fashion.”

Id. (citation omitted).

      In its petition to open the default judgment, Appellant avers that it did

not file a timely response because Appellee did not properly serve the

complaint.    Appellant further contends that service was improper as the

complaint incorrectly named the defendant as “The Buzbee Law Firm,” and

not “Anthony G. Buzbee, L.P.,” the name under which it is legally registered

in the state of Texas.      Rejecting these positions, the trial court concluded

that Appellee’s service of the complaint fully complied with the Pennsylvania

Rules of Civil Procedure:

            Rule 2177 of the Pennsylvania Rules of Civil Procedure
      states that an action shall be prosecuted against a corporation or
      similar entity in its corporate name. Zercher v. Coca-Cola
      USA, 438 Pa. Super. 142, 146, 651 A.2d 1133, 1135 (1994). A
      corporate name is defined as any name, real or fictitious, under
      which a corporation or similar entity was organized or conducts
      business, whether or not such name has been filed or
      registered. Zercher, 651 A.2d at 1135; Pa.R.C.P. No. 2176.
      Appellee provided exhibits to show that Appellant does business

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      under the name “The Buzbee Law Firm,” namely, the firm’s own
      letterhead. Thus, Appellant was properly sued under that name.

            Service was sent to the address of [Appellant’s] Houston,
      Texas principal location by certified and first class regular mail.
      The return receipt in the affidavit of service was signed and
      received, and included in Appellee’s affidavit. Per Pa.R.C.P.
      404(2), Appellee was permitted to serve an out of state
      defendant in the manner governed by Pa.R.C.P. 403, which
      states that “a copy of the process shall be mailed to the
      defendant by any form of mail requiring a receipt signed by the
      defendant or his authorized agent.”       Pa.R.C.P. 403[;] ANS
      Associates, Inc. v. Gotham Ins. Co., [42 A.3d 1074, 1076
      (Pa. Super. 2012)].

            Appellee provided a signed certified mail return of service
      form, signed and delivered on February 18, 2014, that was sent
      to Appellant’s address.   Consequently, service was properly
      made.

Trial Court Opinion, 2/3/15, at 3 (emphasis in italics added).

      We agree with the trial court’s cogent analysis.       Appellant does not

dispute that it regularly conducts business as “The Buzbee Law Firm,” as

indicated on the firm’s letterhead, nor does it dispute that the Houston,

Texas location at which it was served with the complaint was a valid

business location. That Appellant received the complaint is evident by the

signed certified mail receipt reflected in the affidavit of service Appellee filed

February 27, 2014. See Pa.R.C.P. 403 (“Service is complete upon delivery

of mail.”). For these reasons, Appellant’s argument that it did not respond

to the complaint due to improper service is wholly without merit.

      Finally, we conclude that Appellant has failed to satisfy the third prong

of the test, in that it did not plead a meritorious defense to the allegations in

the complaint.   The trial court concluded that Appellant “has not asserted


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any meritorious defense in its petition, other than a bare allegation that it

possesses one.” Trial Court Opinion, 2/3/15, at 6. We agree.

         “Merely asserting in a petition to open default judgment that one has a

meritorious defense is insufficient.” Seeger v. First Union Nat. Bank, 836

A.2d 163, 166 (Pa. Super. 2003) (citation omitted). The moving party must

set forth its meritorious defense “in precise, specific and clear terms.” Id.

(citation omitted).    Appellant’s assertion in the petition that it “has never

had the opportunity to … present its meritorious defenses” is insufficient to

satisfy this requirement. See Petition to Open Default Judgment, 9/19/14,

at ¶5.

         Based on the foregoing, we find no abuse of discretion in the trial

court’s denial of Appellant’s motion to open the default judgment.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




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