J. S09013/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARK A. CAMPBELL                         :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
MARGARET R. PIZZI AND MELISSA            :         No. 1274 WDA 2014
PIZZI-EVENS,                             :
                                         :
                        Appellants       :


                     Appeal from the Order, July 15, 2014,
             in the Court of Common Pleas of Washington County
                        Civil Division at No. 2014-1294


BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 10, 2015

      Appellants appeal from the order denying their petition to open a

default judgment. Finding no error below, we affirm.

      We will accept appellants’ summation of the factual and procedural

history of this case:

                   On September 1, 2013, the Appellant,
            Melissa Pizzi-Evans (“Pizzi-Evans”), entered into a
            residential lease with the Appellee, Mark Campbell
            (“Campbell”).     (RR, at 19a).       In the lease,
            Pizzi-Evans agreed to lease certain property located
            in McMurray, Pennsylvania from Campbell for $1,725
            per month.        The lease was guaranteed by
            Pizzi-Evans mother, Margaret Pizzi (“Pizzi”).

                   In early 2014, Campbell sued Pizzi-Evans and
            Pizzi for breach of the lease agreement before
            Magisterial    District Justice   James    C.    Ellis.
            Pizzi-Evans appeared at the hearing.               On
            February 13,     2014,   Magistrate  Ellis    entered
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          judgment against Pizzi-Evans and Pizzi (collectively,
          the “Appellants”) for $3,612. (RR, at 8a).

               On March 11, 2014, the Appellants appealed
          the judgment to the Court of Common Pleas of
          Washington County, Pennsylvania. (RR, at 5a).

                On April 10, 2014, Campbell filed an
          Arbitration Complaint with the Court of Common
          Pleas. (RR, at 10a). According to the Notice of [sic]
          Defend, the answer to the complaint was due twenty
          days after service of the complaint. (RR, at 11a).

                On May 21, 2014, Campbell filed with the
          Court a certificate of service for the complaint. (RR,
          at 24a). In the certificate of service, Campbell’s
          attorney claimed to have served the complaint on
          the Appellants on April 10, 2014.

               The answer to the complaint was therefore due
          twenty days later, on April 30, 2014.

                 On April 7, 2014, Pizzi-Evans was taken to the
          Emergency Room at St. Clair Hospital for
          complications arising from endometriosis and an
          insulinoma. Endometriosis is a painful condition that
          involves internal bleeding. An insulinoma is a tumor
          that produces an excess of insulin in the body, which
          can cause a life threatening condition.

                Pizzi-Evans spent the eight days in the
          intensive care unit at St. Clair Hospital. She was
          released from the intensive care ward on April 15,
          2014.

                 Between April 15 and April 25, 2014,
          Pizzi-Evans remained at her home, but remained
          seriously ill, and was in severe pain.

                 On April 26, 2014, Pizzi-Evans returned to the
          hospital for the same conditions, this time at UPMC
          Montefiore Hospital, in Oakland, in Pittsburgh.
          Pizzi-Evans remained in the hospital for an additional
          four days, until April 30, 2014. During this time,


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          Pizzi-Evans’ mother, Pizzi, was       involved   with
          Pizzi-Evans care on a daily basis.

                 After being released from UPMC Montefiore,
          Pizzi-Evans remained in treatment at her home. She
          has not returned to work, as of this date in
          November 2014.

                On May 21, 2014, Campbell’s attorney filed a
          praecipe for a default judgment in this case. (RR, at
          25a). In the praecipe, Campbell’s attorney claims to
          have mailed a notice of intent to enter default
          judgment on the Appellants on May 7, 2014. (RR, at
          27a). The Appellants claim they never received any
          such notice.

                On that same day, May 21, 2014, the Court of
          Common Pleas of Washington County, Pennsylvania
          entered a default judgment against the Appellants
          for $6,447.59. (RR, at 25a).

                Three days later, on May 24, 2014, the
          Appellants served on Campbell a Motion to Open
          Default Judgment. (RR, at 30a). The Appellants’
          counsel, Elliott Schuchardt, originally intended to
          present the motion to the Court of Common Pleas on
          Friday, June 6, 2014. (RR, at 41a). However,
          Campbell’s counsel was not available on that date.
          The parties therefore agreed that Schuchardt would
          present the petition on the following Friday, June 13,
          2014 -- provided that Campbell’s counsel would not
          raise an issue relating to the date of presentation.

                On June 13, 2014, the Appellants presented
          their Motion to Open Default Judgment to
          Judge Deborah O’Dell-Seneca.       Following the oral
          argument, Judge O’Dell-Seneca denied the petition
          because it did not attach a verified copy of the
          answer proposed to be filed by the Appellants. (RR,
          at 34a). A verified answer is required by Rule 237.3
          of the Pennsylvania Rules of Civil Procedure.

               Immediately following the oral argument on
          June 13, 2014, the Appellants’ counsel filed the


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            Motion to Open the Default Judgment with the Court.
            The motion was therefore served three days after
            entry of the default judgment, and filed with the
            Court 23 days after the default judgment.

                  Four days later, on June 17, 2014, the
            Appellants served on Campbell’s counsel an
            Amended Petition to open the default judgment.
            (RR, at 35a). The Amended Petition complied in full
            with Rule 237.3, because it did attach a verified
            proposed answer to the complaint. (RR, at 45a).
            The Appellants filed the Amended Petition with the
            Court on the following day, June 18, 2014. (RR, at
            35a).

                  Judge Katherine B. Emery heard oral argument
            in connection with the Amended Petition on June 30,
            2014. Pizzi-Evans and both of her parents attended
            the oral argument. At the beginning of the oral
            argument, the Appellants attorney provided Judge
            Emery with a brief summarizing the facts and the
            law with respect to the petition. (RR, at 53a).

                  During the oral argument, the Appellants’
            lawyer, Elliott Schuchardt, explained to the trial
            court that Pizzi-Evans was in the hospital or ill for
            most of the time period when her answer to the
            complaint was due. In addition, Pizzi-Evans’ mother,
            Ms. Pizzi, was helping treat her daughter, Pizzi-Evans
            during this time. During the oral argument, the
            Appellants’ witnesses were not allowed to speak.

                   On July 15, 2014, the trial court issued a
            Memorandum Opinion denying the Appellants’
            petition to open the judgment. (RR, at 61a).

Appellants’ brief at 5-8. This timely appeal followed.

      On appeal, appellants raise a single issue, contending that the trial

court erred in finding that appellants did not state a reasonable excuse.

                  We begin by stating our standard of review of
            a denial of a petition to open a default judgment:


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                  A petition to open a default judgment is
                  an appeal to the equitable powers of the
                  court. The decision to grant or deny a
                  petition to open a default judgment is
                  within the sound discretion of the trial
                  court, and we will not overturn that
                  decision ‘absent a manifest abuse of
                  discretion or error of law.’

            Dumoff v. Spencer, 754 A.2d 1280, 1282
            (Pa.Super.2000) (citation omitted). This Court may,
            after a review of the case, find an abuse of discretion
            if equity clearly favored opening the judgment. Id.
            (citation omitted). “An abuse of discretion is not a
            mere error of judgment, but if in reaching a
            conclusion, the law is overridden or misapplied, or
            the judgment exercised is manifestly unreasonable,
            or the result of partiality, prejudice, bias or ill will, as
            shown by the evidence or the record, discretion is
            abused.” Id. (citation omitted).

Seeger v. First Union National Bank, 836 A.2d 163 165 (Pa.Super.

2003).

      Our courts employ a three-prong test to determine the propriety of

opening a default judgment.       A default judgment may be opened if the

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

(2) pleaded a meritorious defense to the allegations contained in the

complaint, and (3) provided a reasonable excuse or explanation for failing to

file a responsive pleading.       Id.    Instantly, the trial court found that

appellants had satisfied the first two prongs, but failed to offer a reasonable

excuse for failing to file a responsive pleading:

                  First, the Court finds it important to note that
            this action was an appeal from a Magisterial District


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            Judge where all parties were given the opportunity to
            have their case heard on its merits. Appellants,
            dissatisfied with the judgment against them filed the
            appeal to this Court. The Appellants were well aware
            that they were subject to litigation and the
            Complaint was properly sent to the Appellants’ listed
            address.

                   The averments related to Appellants’ failure to
            answer the Complaint were inadequate.             The
            Appellants, through their counsel, averred that
            Ms. Pizzi-Evans was in the hospital for “the past
            month,” or for “the entire month when the answer to
            the complaint was due to be filed.” R8, para. 7; R9,
            pg. 6. There are no averments of what condition
            caused Ms. Pizzi-Evans to allegedly be hospitalized.
            Nor does the Motion contain any medical form of
            verification or other affidavit.   The Court would
            expect that a person hospitalized for an entire month
            had experienced a catastrophic illness and some
            detail or proof would be included in a pleading or, at
            the very least, in the brief. The motion also fully
            fails to explain why Margaret Pizzi, additional
            Appellant, failed to answer the Complaint.

                  Apparently,    Ms.    Pizzi-Evans   gave   the
            Complaint to a “non-lawyer” friend who averred that
            he would take care of any response. R9, page 6. If
            true, such action is the true error in judgment, not
            this default.

                  The Motion contains only an empty assertion
            that one of the Appellants was hospitalized for some
            time when the answer to the Complaint came due.
            The Court found that too little information was
            provided to justify opening the judgment. In its
            discretion as prescribed under Schultz[ v. Erie
            Insurance Exchange, 477 A.2d 471 (Pa. 1984)],
            this Court denied the motion.

Trial court opinion, 9/23/14 at 2-3.




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     We find no abuse of discretion in the trial court’s decision not to open

the default judgment.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




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