Copeland-Brooks, P. v. ERA One Source Realty

• Court: Superior Court of Pennsylvania
• Decided: January 28, 2019
• Docket: 627 MDA 2018
• Status: Unpublished

Opinion

J-A28005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATTI COPELAND-BROOKS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERA ONE SOURCE REALTY : : Appellant : No. 627 MDA 2018

Appeal from the Order Entered March 16, 2018 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 2014-7307

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 28, 2019

ERA One Source Realty (ERA) appeals from the order, entered in the

Court of Common Pleas of Luzerne County, denying its motion to strike the

judgment entered in favor of Patti Copeland-Brooks (Brooks). The court

denied relief because ERA failed to challenge an arbitration award within the

30-day appeal period provided under Pa.R.C.P. 1307.1 After our review, we

affirm.

On June 18, 2014, Brooks, represented by John P. Rodgers, Esquire,

filed a complaint against ERA, seeking reimbursement for fees, commissions

and expenses, amounting to $15,792.09, pursuant to an oral employment

agreement. ERA filed an answer and new matter on August 16, 2014, and

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1 Rule 1307(c) provides: “If no appeal is taken within thirty days after the entry of the award on the docket, the prothonotary on praecipe shall enter judgment of the award.” Pa.R.C.P. 1307(c). J-A28005-18

two and one-half years later, on February 27, 2017, Brooks filed a reply to

new matter.

Brooks filed a certification for arbitration, and the matter was scheduled

for a hearing on July 17, 2017. The arbitration certification listed ERA’s

counsel of record as: Jason M. O’Malley, Esquire, 310 Spruce Street, Suite

201, Scranton, PA 18503, 570-955-0055. That same name and address was

listed on the praecipe for appointment of arbitrators.

On July 17, 2017, the arbitrators awarded a default judgment in favor

of Brooks in the amount of $15,276.39. The award, filed on July 17, 2017,

indicated that it was mailed to all parties that same day. See Arbitration

Award, 7/17/17. On September 18, 2017, Attorney Rodgers filed a praecipe

for entry of final judgment, noting that the award was not appealed by ERA.

See Praecipe for Final Judgment, 9/18/17. See supra n.1. On that date, the

Luzerne County Prothonotary entered judgment on the award. See Entry of

Judgment, 9/18/17. See also 42 Pa.C.S.A. § 7361(d) (“In the absence of

appeal the judgment entered on the award of arbitrators shall be enforced as

any other judgment of court.”). On October 31, 2017, Brooks filed a praecipe

for writ of execution, which was issued by the Luzerne County Clerk of Judicial

Records.

Three months later, on December 27, 2017, ERA filed a petition to open

and/or strike the judgment and to strike the writ of execution. ERA averred

in its petition that Attorney O’Malley had moved (ostensibly between August

2014, when he filed ERA’s answer and new matter, and June 2017, when

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Attorney Rodgers filed certification of arbitration), and, thus, ERA argued

Attorney O’Malley never received notice of the arbitration.2 ERA also alleged

that Luzerne County never served notice of the arbitration order. See Petition

to Open and/or Strike Arbitration Judgment and to Strike Writ of Execution,

1/27/17, at 2.

In response, Brooks averred that after ERA did not appear at the

arbitration, one of the arbitrators called Attorney O’Malley as a courtesy, prior

to the arbitration, and was told by Attorney O’Malley that William E. Vinsko,

Esquire (current counsel for ERA), was representing ERA. After the

arbitration, Attorney Rodgers contacted Attorney Vinsko and informed him of

the arbitration award. On August 8, 2017, ten days prior to the end of the

30-day appeal period, Attorney Rodgers provided Attorney Vinsko with the

following documents:

1. Docketing statement, printed August 8, 2017, indicating Attorney O’Malley was listed as counsel of record for ERA;

2 We note that there is nothing in the record or in ERA’s brief indicating that Attorney O’Malley notified the court of his change of address. Moreover, we note that in her Answer to ERA’s Petition to Strike/Open, Brooks specifically denied ERA’s allegation that Attorney O’Malley had moved and was not at the address where the Certificate of Arbitration was sent. See Answer, 2/12/18, at ¶ 5. As discussed infra, ERA failed to proceed in accordance with Pa.R.C.P. 206.4, which is required where there are disputed issues of fact in the petition and answer. The purpose is to “create a record from which the court may determine disputed issue of fact raised by the petition and answer. See also Pa.R.C.P. 206.7(c) (if petitioner does not proceed in accordance with petition and answer rules, “the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted[.]”) (emphasis added).

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2. Sheriff service return indicating personal service of complaint on June 23, 2014;

3. Praecipe for entry of appearance filed by Attorney O’Malley;

4. Correspondence to Attorney O’Malley enclosing a time- stamped copy of certification of arbitration;

5. Hearing notice from Luzerne County Clerk of Judicial Records.

Plaintiff’s Brief in Opposition to Defendant’s Petition to Open and/or Strike,

2/12/18, at 2. Moreover, on September 5, 2017, Attorney Rodgers notified

Attorney Vinsko by letter that he intended to file a praecipe for entry of

judgment on behalf of Brooks within ten days. See Letter, 9/5/17.

The trial court denied ERA’s petition. On appeal, ERA argues the trial

court erred and abused its discretion in denying the petition to open and/or

strike. We disagree.

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 a default judgment and/or a petition to open a default judgment, but the remedies are not interchangeable. A petition to strike operates as a demurrer to the record and does not involve the discretion of the court. As such, the court may only look to the facts of record at the time the judgment was entered to decide if the record supports the judgment. A petition to strike can only be granted if a fatal defect appears on the face of the record. In contrast, a petition to open judgment is an appeal to the court’s equitable powers. It is committed to the sound discretion of the court and will not be disturbed absent a manifest abuse of discretion. To be successful, a petition to open a judgment must meet the following test: the petition must be promptly filed; the failure to appear or file a timely answer must be excused; and, the party seeking relief must show a meritorious defense. A party seeking to challenge the factual averments in the record at the time the judgment was entered should file a petition to open the judgment.

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Cintas Corp. v. Lee's Cleaning Serv., Inc., 700 A.2d 915, 918 (Pa. 1997).

At the argument held before President Judge William H. Amesbury,

Attorney Vinsko confirmed that one of the arbitrators called his office and also

called Attorney O’Malley on the day of the arbitration. At that time, Attorney

Vinsko was not counsel of record. Attorney Vinsko also stated that Attorney

Rodgers “promptly provided me with documentation of what he had in terms

of service records. And while the certificate of arbitration was provided to

Attorney O’Malley by Attorney Rodgers, it wasn’t his responsibility to serve

the actual arbitration notice[.]” N.T., 2/12/18, at 3.

Six months elapsed between entry of the award in July 2017 and ERA’s

filing of its petition to open and/or strike. Even if ERA did not receive notice

of the certification of arbitration, Brooks alleged that ERA, through Attorney

Vinsko, was made aware of the arbitration award in August 2017, prior to the

expiration of the 30-day appeal period, and was made aware of Brooks’ intent

to file a praecipe for entry of final judgment in September 2017. ERA has

failed to explain the three-month delay from that point, until December 27,

2017, in seeking to open or strike the judgment. Additionally, we agree with

the court’s finding that ERA, whether through Attorney O’Malley or Attorney

Vinkso, had actual notice.

The trial court also noted that ERA failed to proceed in accordance with

Pa.R.C.P. 206.4, which is required where there are disputed issues of fact in

the petition and answer. Instead, ERA proceeded in Miscellaneous Court with

a brief and appeared for oral argument. Thus, there is no evidentiary record.

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ERA did not respond to Brooks’ answer, and the record before us does not

establish a dispute exists as to Brooks’ allegations that both Attorney O’Malley

and Attorney Vinsko had actual notice of the arbitration award and that

Attorney Vinsko was made aware of Brooks’ intent to file a praecipe for entry

of final judgment. See Pa.R.C.P. 206.7(c) (if petitioner does not proceed in

accordance with petition and answer rules, “the petition shall be decided on

petition and answer and all averments of fact responsive to the petition and

properly pleaded in the answer shall be deemed admitted[.]”) (emphasis

added); see also supra, n.2. The trial court, therefore, having no evidentiary

record and finding no fatal defects of record, did not abuse its discretion in

denying ERA relief.3

ERA argues, in the alternative, that Luzerne County Local Rule 1312

precluded an appeal from the arbitration award. ERA presents this argument

in its summary of argument, but the argument section of its brief is devoid of

any discussion or analysis pertaining to this claim. Issues that are not

developed in the argument section of an appellate brief are waived. Harkins

3 We note that this Court’s docket sheet indicates that Attorney Vinsko is counsel of record for ERA. The certified docket from Luzerne County, however, filed in this Court on June 7, 2018, lists Attorney O’Malley as counsel of record for ERA. We also note that the record does not indicate that Attorney O’Malley has withdrawn his appearance, nor does it include an entry of appearance for Attorney Vinsko.

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v. Calumet Realty Co., 614 A.2d 699, 703 (Pa. Super. 1992). We,

therefore, find this claim waived.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/28/2019

4 We note that ERA has misapprehended the local rule. Local Rule 1312 precludes a de novo proceeding where a party failed to appear and the matter was heard before the trial court. Here, the matter was before the arbitration panel, not the trial court. The rule provides:

Rule 1312. Appeal

(a) Any party may appeal from the findings or award of the Board of Arbitrators to the court. Appeals shall result in de novo proceedings before the trial court, except where one or more parties failed to appear and the matter was initially heard before the trial court, as stated in the written notice required by Luz. Co. R.C.P. No. 1306(b).

(b) The cost of appeal shall be set by court order and shall include a sum to compensate the fees of the Arbitration Board.

(c) Simultaneously with the filing of the appeal, appellant shall file a Certificate of Readiness for Trial with the Clerk of Judicial Records, serve all parties and shall deliver a time-stamped copy to the Office of Court Administration which shall assign the case to a Judge for trial in the ordinary course.

https://www.luzernecounty.org/DocumentCenter/View/2739/Luzerne- County-Rules-of-Civil-Procedure (last visited 1/14/19) (emphasis added).

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