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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S58034-14
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
-2- J-S58034-14
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).
-3- J-S58034-14
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
-4- J-S58034-14
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)
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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. J-S58034-14
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
-2- J-S58034-14
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).
-3- J-S58034-14
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
-4- J-S58034-14
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
-5- J-S58034-14
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.
-6- J-S58034-14
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/19/2014
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