Fried, S. v. Colton, L.

• Court: Superior Court of Pennsylvania
• Decided: July 22, 2021
• Docket: 3499 EDA 2019
• Status: Unpublished

Opinion

J-S12003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN FRIED AND DIANE AYERS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LISA COLTON : : Appellant : No. 3499 EDA 2019

Appeal from the Order Entered October 15, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 050900132

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

MEMORANDUM BY LAZARUS, J.: Filed: July 22, 2021

Lisa Colton appeals from the order,1 entered in the Court of Common

Pleas of Philadelphia County, denying her “Motion to Strike Writ of Revival of

Default Judgment Entered on September 19, 2013 and to Strike all Writs of

Revival.” Upon review, we affirm.

In July of 2005, Colton improperly excavated the property next to the

home of Appellees, Stephen Fried and Diane Ayers. On April 24, 2008,

Appellees obtained a judgment against Colton in the Philadelphia Court of

Common Pleas in the amount of $95,610.00 for damages to their home. On

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1 We hereby deny Colton’s June 11, 2021 application to file a reply brief nunc

pro tunc. Pursuant to Pa.R.A.P. 2185(a)(1), Colton had 14 days from the date Appellees’ brief was filed—until March 18, 2021—to file her reply brief. Id. The basis for Colton’s application is that she “was unable to conduct discovery due to the Covid-19 pandemic restrictions.” Motion, 6/11/21, at 1. As this Court indicated to Colton previously, we do not permit or oversee discovery during the pendency of an appeal. See Order, 4/27/21. J-S12003-21

May 23, 2008, Colton timely filed an appeal to this Court, which was dismissed

on September 23, 2008. Fried v. Colton, 1575 EDA 2008 (Pa. Super. filed

Sept. 23, 2008) (unpublished memorandum decision). Appellees obtained a

writ of execution against Colton on June 24, 2008. On May 22, 2013, the

Pennsylvania Supreme Court denied Colton’s petition for review.

On June 10, 2013, Appellees filed a praecipe to issue writ of revival in

the Philadelphia Court of Common Pleas (the “2013 Writ”).2 The following

day, Appellees attempted to serve Colton with the 2013 Writ at her last known

address, 319-321 S. 3rd Street, Philadelphia, PA. The process server was

unable to serve the writ, noting that the property was abandoned. Service

Affidavit, 6/11/13. On July 18, 2013, Appellees obtained a public record

search indicating that Colton’s then-current address was likely to be 500

Blauvelt Road, Pearl River, NY. Appellees caused the 2013 Writ to be served

2 Pursuant to Pa.R.C.P. 3025, the lien of a judgment may be revived by filing

a praecipe for writ of revival with the prothonotary of the county in which the judgment has been entered. Id. There is no time limit for filing a writ of revival. Shearer v. Naftzinger, 747 A.2d 859, 861 (Pa. 2000). Justice Zappala clarified, in his concurring opinion in Shearer, that:

A money judgment acts as a lien against real property, but only for five years. The lien must be continued (or revived) to maintain (or obtain a new) place of priority. However, properly speaking, it is the lien that is revived, not the judgment. There is no outer time limit to executing against real property to satisfy a judgment, but the proceeds of such a sale must be distributed according to the priority of liens. Thus [one] can revive the judgment lien as often as they wish and execute against any real property the [other party] might come to own in the future.

Id. at 638-39 (emphasis added).

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on Colton at her New York address by a licensed process server on August 5,

2013. Service Affidavit, 8/5/13; see also Pa.R.C.P. 402(a)(2)(i). Colton did

not respond to the 2013 Writ. On August 26, 2013, Appellees served Colton

with their ten-day notice of intent to seek default judgment, pursuant to

Pa.R.C.P. 237.1(a)(2)(ii), at her New York address, by regular mail with a

certificate of mailing. Colton did not respond to the ten-day notice. On

September 18, 2013, Appellees filed a praecipe for entry of default judgment

of revival. That day, the court entered default judgment in the amount of

$125,644.92, including interest owed on the original judgment from 2008.3

In July of 2018, Appellees learned that Colton forwarded the mail

received at her New York address to her address at 233 Marple Road,

Haverford, Delaware County, Pennsylvania (the “Haverford property”). On

August 22, 2018, Appellees filed a second praecipe for writ of revival in

Philadelphia (the “2018 Writ”). Appellees directed the sheriff of Delaware

County to serve Colton with the 2018 Writ at the Haverford property; after

multiple unsuccessful attempts, Appellees filed a motion for alternative service ____________________________________________

3 Appellees later determined that Colton was working at a New York hospital

pursuant to a skip trace search. A “skip tracer” is “a person employed (as by an insurance company) to locate persons who disappear leaving unpaid bills.” Skip Tracer, Merriam-Webster’s Dictionary (available at https://www.merriam-webster.com/dictionary/skip%20tracer) (last visited 6/29/21). Appellees domesticated the revived judgment in the county clerk’s office for Rockland County, New York, on February 4, 2014, pursuant to the Uniform Enforcement of Foreign Judgments Act, 42 Pa.C.S.A. § 4306. Appellees garnished Colton’s wages at the hospital for almost four years, collecting over $57,000. Brief of Appellees, at 5. Colton never sought relief from the courts in Pennsylvania or New York.

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on October 29, 2018, supported by an affidavit describing their attempts to

locate and personally serve Colton. See Affidavit, 10/29/18, at 2-3.

Meanwhile, on September 5, 2018, Appellees filed a praecipe to transfer

judgment from the Philadelphia Court of Common Pleas to the Office of Judicial

Support for Delaware County. The judgment became a lien on the Haverford

property when it was entered in the judgment index of the Delaware County

Court of Common Pleas on September 5, 2018, pursuant to Pa.R.C.P. 3027.

On November 5, 2018, the Philadelphia Court of Common Pleas granted

Appellees’ motion for alternative service and directed Appellees to serve

Colton with the 2018 Writ at the Haverford property by certified and regular

mail with certificate of mailing and by posting. Appellees mailed the 2018

Writ in accordance with the court’s order the following day, and on November

14, 2018, a Delaware County sheriff’s deputy posted the 2018 Writ to the

Haverford property. Colton did not respond to the 2018 Writ. On December

6, 2018, Appellees served Colton at the Haverford property with their ten-day

notice of intent to seek default judgment. Colton did not respond to the ten-

day notice. On December 14, 2018, Appellees filed a praecipe for writ of

execution with the Delaware County Court of Common Pleas directing the

sheriff of Delaware County to levy on and sell the Haverford property to satisfy

the judgment. On December 18, 2018, Appellees filed a praecipe for entry of

default judgment of revival. That same day, the Philadelphia County court

entered default judgment against Colton in the amount of $104,316.49.

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On January 30, 2019, Appellees served Colton with a writ of execution

package, including the 2018 Writ and a notice of sheriff’s sale of real estate,

at the Haverford property by certified and regular mail with certificate of

mailing. The sheriff of Delaware County was unable to personally serve the

writ of execution package on Colton at the Haverford property, despite

multiple attempts. On February 25, 2019, Appellees filed a motion for

alternative service with the Delaware County Court of Common Pleas,

supported by an affidavit detailing their attempts to serve Colton. Affidavit,

2/25/19. On April 8, 2019, the Delaware County Court granted the motion,

ordering Colton be served by certified and regular mail with certificate of

mailing and by posting at the Haverford property. The sheriff of Delaware

County posted copies of the writ of execution, notice of sheriff’s sale, and

related documents at the Haverford property on April 16, 2019.

On May 15, 2019, Colton filed pro se emergency petitions to strike the

2013 Writ and 2018 Writ and to stay the sheriff’s sale of the Haverford

property. Appellees filed their opposition to her petition on May 17, 2019.

That same day, the Delaware Court of Common Pleas denied the petitions.

Colton did not seek reconsideration of the order denying her petitions, nor did

she appeal from the order of the Delaware County court. A third-party bidder

purchased the Haverford property for $171,000 at the sheriff’s sale on May

17, 2019. The sheriff conveyed the Haverford property to the third-party

purchaser via sheriff’s deed dated July 17, 2019, which was recorded with the

Delaware County Office of the Recorder of Deeds that day. Colton did not file

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a petition to set aside the sale of the Haverford property pursuant to Pa.R.C.P.

3132. See id. (petition to set aside sheriff’s sale of real property must be

filed before deed to property is delivered to purchaser).

On July 25, 2019, Colton filed an emergency motion to strike all writs of

revival of default judgment in the Philadelphia Court of Common Pleas. Upon

consideration of Colton’s motion, Appellees’ answer, Colton’s reply, and

Appellees’ surreply, the court denied Colton’s motion on October 15, 2019.

On November 12, 2019, Colton timely appealed to this Court. Both

Colton and the trial court have complied with Pa.R.A.P. 1925. Colton raises

the following issues for our review:

1. The Philadelphia Common Pleas Court erred in not striking the writ of revival of default judgment as there are fatal defects/irregularities on the face of the record of this case.

2. The default judgments dated December 18, 2018[,] and September 18, 2013[,] entered by the Philadelphia Common Pleas Court [are] void.

3. The Sheriff’s sale dated May 17, 2019[,] is a nullity as it was based on a void judgment.

Brief of Appellant, at 2.

As this Court explained in ANS Assoc.’s Inc. v. Gotham Ins. Co., 42

A.3d 1074 (Pa. Super. 2012):

A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record[.] An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. In determining whether fatal defects exist on the face of the record for the purpose of striking a judgment, a court may look only at what was

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in the record when the judgment was entered. We review a trial court’s refusal to strike a judgment for an abuse of discretion or an error of law.

Id. at 1076 (internal citations omitted).

Colton argues that the Philadelphia Court of Common Pleas erred in

failing to strike “two improperly served writ[s] of revival[ of default

judgment]” and failing to undo the sale of the Haverford property where the

judgment giving rise to its sale was not properly revived. Brief of Appellant,

at 4 (unnecessary capitalization omitted). No relief is due, as Colton’s claims

are barred by the doctrine of res judicata.

It is well-settled that res judicata “bars the re[-]litigation of issues that

either were raised or could have been raised in [a] prior proceeding.” Khalil

v. Cole, 240 A.3d 996, 1004 (Pa. Super. 2020). “[T]he doctrine of res

judicata holds that a final[,] valid[4] judgment upon the merits by a court of

competent jurisdiction bars any future suit between the same parties or their

privies on the same cause of action.” Dempsey v. Cessna Aircraft Co., 653

A.2d 679, 680-81 (Pa. Super 1995) (en banc); see also Gardner v. Consol

Rail Corp., 100 A.3d 280, 282-83 (Pa. Super. 2014) (“The failure to appeal

from a final order renders the doctrine of res judicata applicable.”). A ____________________________________________

4 We summarily reject Colton’s argument that allegedly improper service of

the 2018 Writ renders the December 18, 2018 default judgment invalid, as the record belies her assertion that “[s]ervice of the Second Writ was . . . not [made] upon [her] attorney of record as required by statutory law.” See Brief of Appellant, at 4; see also Pa.R.C.P. 237.1 (no judgment of default shall be entered unless praecipe for entry includes certification that written notice of intent to file praecipe was mailed or delivered to party’s attorney of record); Service Affidavit, 12/18/18 (certifying written notice of intent to file praecipe was mailed or delivered to Colton’s attorney of record).

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judgment which disposes of all claims of all parties is deemed final for

purposes of res judicata until or unless it is reversed on appeal. Shaffer v.

Smith, 673 A.2d 872 (Pa. 1996). Additionally, the doctrine of res judicata

applies to default judgments. See Signora v. Liberty Travel, Inc., 886 A.2d

284 (Pa. Super. 2005) (appellant precluded on basis of res judicata and law

of the case doctrine from challenging two default judgments entered by trial

court establishing liability on plaintiff’s claims), rev’d on other grounds in

Andrews v. Cross Atlantic Capital Partners, Inc., 158 A.3d 123 (Pa.

Super. 2017) (en banc) (overruling the Signora Court’s analysis of 43 P.S. §

260.10 (liquidated damages) to hold that employee’s receipt of prejudgment

interest on breach of contract claim for unpaid wages did not preclude

recovery of liquidated damages in additional claim under Wage Payment and

Compensation Law). “Res judicata may bar a second action based upon the

same transaction even if additional grounds for relief are

presented.” Dempsey, supra at 682.

For res judicata to apply, there must be four common elements between

the two actions: “(1) identity of the thing sued upon; (2) identity of the cause

of action; (3) identity of the parties; (4) identity of the capacity of the parties.”

Id. at 681.

Here, Colton’s appeal is barred by res judicata because Colton sought

the same relief in Philadelphia County that was originally sought and denied

in Delaware County, and Colton failed to timely appeal from the order of the

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Delaware County court. The identities and capacities of the parties in the

Philadelphia County proceedings are the same as those in the prior Delaware

County proceedings. Finally, causes of action and identity of the thing sued

upon are also identical.

To elaborate, on May 15, 2019, Colton filed a pro se emergency petition

in Delaware County asking the court to strike two writs of revival of default

judgment, allegedly improperly served on August 5, 2013 and December 18,

2018, and to stay the Sheriff’s sale of the Haverford property. The Delaware

County court denied the petition by order dated May 17, 2019. Colton did not

seek reconsideration of the order denying her emergency petition, nor did she

file an appeal, timely or otherwise. See Pa.R.A.P. 903(a) (thirty-day time

limit for filing appeal). That same day, the Haverford property was sold to a

third-party bidder by Sheriff’s deed. The Sheriff conveyed the Haverford

property to the purchaser by deed dated July 17, 2019, which was recorded

with the Delaware County Office of the Recorder of Deeds that day. Colton

did not take any action to preserve her rights with respect to the Haverford

property, such as filing a timely petition to open/set aside the sheriff’s sale.

Rather, Colton filed a second emergency petition on July 25, 2019, asking the

Philadelphia County court to strike the same writs of revival that the Delaware

County court declined to strike and to undo the sale of real property that the

Delaware County court declined to prevent. It is undisputed that Colton failed

to timely appeal from the May 17, 2019 order of the Delaware County court,

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and that such order was a final order because it disposed of all claims of all

parties. See Pa.R.A.P. 341(b)(1); Pa.R.A.P. 903(a).

Under these circumstances, Colton is entitled to no relief. Res judicata

precludes Colton from relitigating the same claims5 she raised in Delaware

County in the subsequent proceeding filed in Philadelphia County. Dempsey,

supra; Signora, supra.

Order affirmed.

5 Similarly, the “law of the case” doctrine precludes judges of coordinate jurisdiction from overruling each other’s decisions absent exceptional circumstances, such as a change in controlling law, a substantial change in facts giving rise to the dispute, or where the prior decision would create manifest injustice if followed. See Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995) (law of case doctrine subsumes coordinate jurisdiction rule). Here, the Philadelphia Court of Common Pleas, citing Starr, correctly declined to overrule the decision of a judge on the Delaware County Court of Common Pleas after noting a lack of exceptional circumstances. See Trial Court Opinion, 6/23/20, at 4-5. Our review confirms that there was no change in controlling law or substantial change in facts giving rise to the dispute. Furthermore, no manifest injustice resulted from the sale of the Haverford property; there is no dispute that Colton was subject to a valid judgment from 2008, see Brief of Appellant, at 5 (Colton “does not at all attack the validity” of the 2008 judgment), that Colton owned the Haverford property, or that the Haverford property was unexempt from execution. Therefore, no relief is due. Id.; see also Signora, supra (res judicata and law of case doctrine provide independent bases to preclude appellant from challenging default judgments).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/22/21

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