De Lage Landen Financial Serv., Inc. v. Feijo, G.

• Court: Superior Court of Pennsylvania
• Decided: December 18, 2018
• Docket: 153 EDA 2018
• Status: Unpublished

Opinion

J-A18011-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DE LAGE LANDEN FINANCIAL SERVICES, IN THE SUPERIOR COURT INC., OF PENNSYLVANIA

Appellee

v.

GLORIA FEIJO

Appellant No. 153 EDA 2018

Appeal from the Order Entered December 7, 2017 In the Court of Common Pleas of Chester County Civil Division at No: 2016-10159-CT

BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY STABILE, J.: FILED DECEMBER 18, 2018

Appellant, Gloria Feijo, appeals pro se from the December 7, 2017 order

denying her petition to open a default judgment. We quash.

The record reveals that Appellee, De Lage Landen Financial Services,

Inc., filed a complaint on October 25, 2016 alleging that Appellant breached

an equipment lease agreement. Appellant never filed an answer, and a default

judgment was entered against her on January 24, 2017. Appellant filed a pro

se petition to open the judgment on May 19, 2017, and Appellee filed its

response on June 1, 2017. On June 23, 2017, Appellant filed a pro se reply

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court. J-A18011-18

and a proposed answer to Appellee’s complaint. The trial court denied the

motion on December 7, 2017, and this timely appeal followed.

On January 12, 2018, the trial court ordered Appellant to file and serve

on the judge a concise statement of matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b). The certified docket indicates that a copy of the order

was sent to all counsel and unrepresented parties on January 16, 2018.

Appellant filed a timely concise statement but failed to serve it on the trial

court in accord with Pa.R.A.P. 1925(b)(1) and the express terms of the trial

court’s order. Appellant’s failure to serve a copy of her Pa.R.A.P. 1925(b)

statement on the trial court results in waiver of the issues she would present

on appeal. Forest Highlands Community Ass’n v. Hammer, 879 A.2d

223, 228-29 (Pa. Super. 2005). We are therefore constrained to quash this

appeal. Were we to address the merits, however, we would affirm for the

reasons stated in the trial court’s Pa.R.A.P. 1925(a) opinion, filed on February

28, 2018. A copy of that opinion is attached.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/18/18

-2- Circulated 11/30/2018 03:07 PM C:\Usm\jcolbum\AppData\Local\Microsofl\Windows\Tcmporary Internet Fi1es\Contenl.Outlook\06UUUVY9\De Lage Landen Y. fcijo 16-10159 .. krnb.docx

DE LAGE LANDEN FINANCIAL IN THE COURT OF COMMON PLEAS SERVICES, INC. CHESTER COUNTY, PENNSYLVANIA vs.

GLORIA FElJO

Fred August Nehr, Esquire, Attorney for Plaintiff. Defendant, Pro se.

Defendant appeals from our Order dated December 6, 2017 and docketed

December 7, 2017 denying her Motion to Open or Vacate Default Judgment. We submit this

Opinion in accordance with Pa.R.A.P. 1925(a). Defendant timely filed her Notice of Appeal

and her Concise Statement of Errors Complained of on Appeal. However, Defendant failed to

serve the Concise Statement on the undersigned. We respectfully request that the instant

appeal be quashed as violative of Pa.R.A.P. I 925(b)(J ). Should the Court not quash the appeal,

the following is our Opinion in support of our Order.

fE.9CEDURAL HISTORY

Plaintiff initiated this action by filing its Complaint on October 25, 2016.

Service was effectuated on Defendant on or about November 19, 2016. Due to Defendant's

failure to file an Answer to the Complaint, a default judgment was entered on January 24, 2017.

Defendant filed her Motion to Open or Vacate Default Judgment on May 19, 2017. Plaintiff

filed its response to the Motion on June I, 2017 and its Brief in Support on June 7, 2017.

Defendant tiled a sur-reply on June 23, 2017 along with her proposed Answer to the

Complaint. As stated above, we issued our Order denying Defendant's Motion on December 6, 2017 which was docketed on December 7, 2017. ·' "'"' C:\Uscrs�coJl}um\AppData\Local\Microsoft\Windows\Tcmporary Internet Files\Contcnt.0Jtlook\06UUUVY9\De Lage Landen v. Fcijo 16- 10159 ..kmb.docx

DISCUSSION

Defendant has raised four (4) Matters Complained Of on Appeal. First, Defendant

argues that we erred when we found that she was properly served with the Complaint. Defendant

resides in East Elmhurst, NY. Pursuant to Pa.R.C.P. 404 original process may be made outside the

Commonwealth by inter alia (1) a competent adult in a manner provided by Rule. 402(a) or (2) by

mail in the manner provided by Rule 403. Plaintiff filed a Proof of Service which demonstrates

that a process server hand delivered a copy of the Complaint to a co-tenant at Defendant's address

who refused to give her name. In addition, a copy of the Complaint was mailed to Defendant at

her last known address. Thirdly, Plaintiff provided a copy of an Order issued by the Honorable

Rudolph E. Greco, Jr. of the New York Supreme Court - Queens County which also demonstrates

that Defendant was properly served. Finally, by attempting to proceed on the merits of the case,

Defendant may have waived any defect in service.

In her second Matter, Defendant argues that we erred by failing "to take into

account that defendant resides out of state, has little familiarity with the English language and is

pro se." Respectfully, the fact that Defendant resides outside the Conunonwealth and is

proceeding pro se does not entitle her to any special consideration. See; Triffi.n v. Janssen, 626

A.2d 571 (Pa. Super. 1993). With regard to Defendant's lack of "familiarity with the English

language", a review of her Motion and her proposed A..nswer demonstrate otherwise.

In her third Matter, Defendant argues that we erred when we failed to "balance the lack of timely filing against the lack of prejudice to Plaintiff if the default judgment was opened

and the fact that defendant immediately returned the equipment ... " We also erred when we

failed to consider the "substantial amount of money involved." The standards for striking and or opening a default judgment do not require us to perform any type of balancing analysis. With

regard to Defendant's request that we vacate (strike) the judgment, we found no fatal defect

-2-