Cigar Factory Condo Ass'n v. Cigar Factory Partners LLC

45 Pa. D. & C.5th 49, 2015 Phila. Ct. Com. Pl. LEXIS 36
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 18, 2015
Docket2013 No. 2073; 3313 EDA 2014
StatusPublished

This text of 45 Pa. D. & C.5th 49 (Cigar Factory Condo Ass'n v. Cigar Factory Partners LLC) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cigar Factory Condo Ass'n v. Cigar Factory Partners LLC, 45 Pa. D. & C.5th 49, 2015 Phila. Ct. Com. Pl. LEXIS 36 (Pa. Super. Ct. 2015).

Opinion

WRIGHT PADILLA, J.,

Appellant, Cigar Factory Partners, appeals from this court’s order denying its petition to open judgment.

FACTUAL AND PROCEDURAL HISTORY

On August 20, 2013, appellee, Cigar Factoiy Condo Association, commenced this case by petition to confirm arbitration award.

On September 2, 2013, appellee filed an affidavit of service stating that the petition had been served upon appellant by personal service to Karen Wozinica, an agent or person in charge of the place of business, on August 23, 2013 at 530 S. 2nd Street, Philadelphia, PA.

On September 17, 2013, this court granted appellee’s petition and confirmed the July 1, 2013, arbitration award in favor of appellee and against appellants in the amount of $61,064.00.

On April 10, 2014, appellee filed a praecipe for writ of execution, which was returned July 3,2014 after a stay by [52]*52appellee’s attorney.

On May 22, 2014, appellee filed two affidavits of service, averring that the notice of sale had been served upon appellant by personal service at 530 S. 2nd Street, Philadelphia, PA and posting of the premises of 1808 Spruce Street, Philadelphia, PA on May 13, 2014.

On July 9, 2014, appellant filed a petition to open judgment, averring that: it is a Pennsylvania Limited Liability Company headquartered at 1808 Spruce Street, Philadelphia, PA; that appellant was not sent notice about an arbitration in the matter; has not seen proof of arbitration; that appellant was never properly served with the petition to confirm; and that it was unaware of the matter until it was served with notice of a sheriff’s sale of the property located at 1147-53 N. 4th Street, Unit CYB.

On July 24, 2014, appellee filed its response, averring that appellant was notified ofthe arbitration andparticipated in the proceeding; that appellant and additional appellant were found jointly and severably liable; and denying all other allegations.

On October 14, 2014, this court heard argument on the merits of the petition. Appellant’s counsel stated that he had “misunderstood the petition” and that his client was aware of the arbitration last year but was not aware of the date. N. T. at 4-5. Appellant further stated that the property was subject to another litigation, and thus he did not believe it was wise to spend money trying to open the judgment if the property was not his; however, the litigation was subsequently settled. N.T. 6. Appellee and [53]*53appellant’s counsel stipulated that appellant had been served with notice of the hearing before this court. N.T. at 7-8. Although appellant’s principal did not appear to testify, counsel for appellant argued that though he knew he was involved in arbitration, he had not received notice of the arbitration date. N.T. at 16.

Appellee presented evidence that: notice of the arbitration claim had been served on appellant’s principal Gagan Lakhmna at 1808 Spruce Street; that Lakhmna had signed for the letter; that an attorney had entered his appearance on behalf of appellant; that appellant’s principal had sent an email to all parties involved stating that he could not make the arbitration hearing date; an email showing that the arbitrator had set a preliminaiy hearing conference call which appellant’s principal did not join; an email from appellant’s principal stating that he had come down with a fever and could not make the hearing; an email generated June 4, 2013 from the AAA to all parties notifying them of the arbitration hearing set for June 6, 2013; and a July 2, 2013 letter from the AAA to appellant’s principal via email and certified mail at his office address transmitting a copy of the arbitration award against him and his company in the amount of $61,064.00 plus attorney’s fees. N.T. at 10-12.

That same day, this court denied appellant’s motion to open and/or strike judgment.

OnNovember 4,2014, the property was sold at sheriff’s sale for $10,300.00.

On November 10, 2014, appellant filed a timely notice [54]*54of appeal to the Superior Court of Pennsylvania.

On November 12, 2014, this court issued its order pursuant to Pa. RAP. 1925(b), directing appellant to file its concise statement of matters complained of on appeal within twenty-one (21) days.

On December 3, 2014, appellant filed its concise statement of matters complained of on appeal, arguing that this court erred in denying its petition to “strike/open judgment” where appellant was never properly served; and where appellant had timely filed its petition, did not have notice of the underlying arbitration, and had a meritorious defense based on appellee’s “extreme overcharging of condominium fees.”

DISCUSSION

Appellant attacks this court’s denial of its petition to strike and/or open judgment. In order to obtain relief from the entry of a default judgment, the law provides two distinct remedies — an aggrieved party may file a petition to strike the default judgment and/or a petition to open the default judgment. Mother's Rest. Inc. v. Krystkiewicz, 2004 PA Super 411, 861 A.2d 327, 336 (Pa. Super. Ct. 2004). They are generally not interchangeable; a petition to strike does not involve the discretion of the court but is a demurrer to the record. Id. A petition to open judgment, on the other hand, is an appeal to the equitable powers of the court. Id.

The standard of appellate review is that of abuse of discretion with regard to the petition to open only; the [55]*55court’s decision will not be reversed absent an abuse of discretion or error of law. Erie Ins. Co. v. Bullard, 2003 PA Super 448, 839 A.2d 383, 386 (2003).

I. PETITION TO STRIKE DEFAULT JUDGMENT

As noted above, a petition to strike is a demurrer to the record. Mother’s Rest., Inc., 861 A.2d at 336. Such a demurrer “admits all well-pleaded facts for the purpose of testing conclusions of law drawn from those facts,” and the court may only look at the facts of record at the time the judgment was entered to decide if the record supports the judgment. Id. A petition to strike may be granted only if a fatal defect appears on the record. Id. See also U.K. LaSalle, Inc. v. Lawless, 421 Pa. Super. 496, 618 A.2d 447 (1992). A petition to strike does not involve the discretion of the court. Triangle Printing Co. v. Image Quest, 730 A.2d 998, 999 (Pa. Super. 1999).

Appellant argues that the judgment should be stricken as it was not served. This petition to confirm an arbitration award was commenced August 20, 2013. On September 2, 2013, appellee filed an affidavit of service stating that Karen Wozinica, the person in charge of appellant’s offices, was served on August 23, 2013 at 2:10 PM at 530 South 2nd Street in Philadelphia, Pennsylvania. On September 17,2013, this court entered judgment in favor of appellee.

At the time judgment was entered, the record reflected that service had been properly made.

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Related

Erie Insurance v. Bullard
839 A.2d 383 (Superior Court of Pennsylvania, 2003)
Myers v. Wells Fargo Bank, N.A.
986 A.2d 171 (Superior Court of Pennsylvania, 2009)
U.K. LaSalle, Inc. v. Lawless
618 A.2d 447 (Superior Court of Pennsylvania, 1992)
Smith v. Morrell Beer Distributors, Inc.
29 A.3d 23 (Superior Court of Pennsylvania, 2011)
TRIANGLE PRINTING COMPANY v. Image Quest
730 A.2d 998 (Superior Court of Pennsylvania, 1999)
Mother's Restaurant, Inc. v. Krystkiewicz
861 A.2d 327 (Superior Court of Pennsylvania, 2004)

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Bluebook (online)
45 Pa. D. & C.5th 49, 2015 Phila. Ct. Com. Pl. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cigar-factory-condo-assn-v-cigar-factory-partners-llc-pactcomplphilad-2015.