Johnson, B. v. Johnson, R. ( 2019 )


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  • J-A19042-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    BARBARA A. JOHNSON                         :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RICHARD A. JOHNSON, JR. AND                :
    VICTORIA F. THOMAS                         :
    :   No. 53 EDA 2019
    :
    APPEAL OF: RICHARD A. JOHNSON,             :
    JR.                                        :
    Appeal from the Order Entered December 6, 2018
    In the Court of Common Pleas of Chester County Civil Division at No(s):
    18-01780-TT
    BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.
    MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 22, 2019
    Appellant Richard A. Johnson, Jr., appeals from the order entered in the
    Court of Common Pleas of Chester County, which denied his petition to open
    and/or strike the default judgment entered against him1 and in favor of his
    stepmother, Appellee Barbara A. Johnson. After a careful review, we affirm.
    ____________________________________________
    1 As further discussed infra, default judgment was entered against Appellant,
    as well as Victoria F. Thomas, his wife. Appellant averred in his brief in support
    of his petition to open and/or strike the default judgment that he and Ms.
    Thomas are in the process of divorcing. Ms. Thomas did not separately file
    either a petition to open and/or strike the default judgment or a notice of
    appeal, and Appellant did not indicate he was filing his documents on her
    behalf. Thus, for purposes of this appeal, we shall refer solely to Richard A.
    Johnson, Jr., as “Appellant”.
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-A19042-19
    The relevant facts and procedural history are as follows: On February
    15, 2018, Appellee filed a civil complaint against Appellant, who is her
    stepson, and his wife, Victoria F. Thomas, and provided them with notice to
    defend within twenty days.      In the complaint, Appellee averred that the
    couple, through misrepresentation and fraud, converted $509,110.03 in
    insurance proceeds owed to Appellee and utilized the proceeds for their own
    use. She also averred Appellant improperly transferred his one-half interest
    in three properties located in Kennett Square to Ms. Thomas in order to avoid
    collection of a debt that Appellee had against him.
    Accordingly,   Appellee   raised   the   following   claims:   Count    I-
    fraud/misrepresentation-unauthorized name added to account signature card;
    Count II-fraud/misrepresentation-forged endorsement of check deposits;
    Count III-violation of the Pennsylvania Uniform Fraudulent Transfers Act
    (“PUFTA”), 12 Pa.C.S.A. § 5101 et. seq.; Count IV-unjust enrichment; and
    Count V-civil conspiracy.   The certified record contains a sheriff’s service
    process receipt and affidavit of return indicating the complaint was served on
    February 16, 2018, at 12:41 p.m., by handing copies of the complaint to
    “Richard Johnson (Def.)” at the couple’s home at 317 Pennsylvania Avenue in
    Avondale.
    Neither Appellant nor Ms. Thomas filed an answer to the complaint, and
    thus, on March 12, 2019, Appellee filed a ten-day notice of her intent to file a
    default judgment against them. The record contains certificates of service
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    from Appellee’s attorney indicating the ten-day notice was served upon
    Appellant and Ms. Thomas on March 12, 2018, via first class mail at 317
    Pennsylvania Avenue in Avondale.
    No answer was filed in response to the            ten-day notice and,
    consequently, on March 28, 2018, Appellee filed a praecipe for the entry of
    default judgment in the amount of $608,871.05 against Appellant and Ms.
    Thomas.2 The record contains certificates of service from Appellee’s attorney
    indicating notice of the default judgment was served upon Appellant and Ms.
    Thomas on March 26, 2018, via first class mail at 317 Pennsylvania Avenue in
    Avondale.
    Moreover, on March 28, 2018, the prothonotary entered a default
    judgment on the docket in the amount of $608,871.05 against Appellant and
    Ms. Thomas. The docket entries include notations indicating that the
    prothonotary provided Appellant and Ms. Thomas with notice of entry of the
    judgment pursuant to Pennsylvania Rule of Civil Procedure 236.
    On April 3, 2018, Appellee filed a praecipe for the entry of default
    judgment as to the remaining count of her complaint, Count III- violation of
    PUFTA, as well as a praecipe for determination with regard thereto. Therein,
    Appellee requested the trial court void the transfer of, strike the deeds of, and
    void the mortgages recorded with regard to three specific properties in
    ____________________________________________
    2 Appellee averred she was entitled to monetary damages in a “sum certain,”
    i.e., $509,110.03, plus interest and costs.
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    J-A19042-19
    Kennett Square. Appellee also requested the trial court enjoin Appellant and
    Ms. Thomas from taking any action that would lead to the transfer of
    Appellant’s interest in the properties to Ms. Thomas.
    The record contains certificates of service from Appellee’s attorney
    indicating notice of the praecipe for entry of default judgment as to Count III
    was served upon Appellant and Ms. Thomas on April 3, 2018, via first class
    mail at 317 Pennsylvania Avenue in Avondale.       The docket entries include
    notations indicating that the prothonotary provided Appellant and Ms. Thomas
    with notice of entry of the judgment pursuant to Pennsylvania Rule of Civil
    Procedure 236.
    On June 22, 2018, Appellant filed a petition to open and/or strike the
    default judgments, as well as an answer with new matter to Appellee’s
    complaint. Appellee filed a response in opposition to Appellant’s petition to
    open and/or strike the default judgments.
    On December 6, 2018, the trial court entered an order denying
    Appellant’s petition to open and/or strike the default judgments entered
    against him. Appellant filed a notice of appeal on December 20, 2018.3 The
    ____________________________________________
    3 We note that, prior to the instant appeal, the trial court did not assess the
    equitable remedy pertaining to Appellee’s entry of default judgment as to
    count III of her complaint. However, “[t]his Court has held that a party may
    petition to open a default judgment prior to the assessment of damages and
    that an appeal from an order denying such a petition is appealable under
    Pa.R.A.P. 311(a)(1)[, which allows appeals of interlocutory orders that deny
    requests to open a judgment.]” Boatin v. Miller, 
    955 A.2d 424
    , 433 n.2
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    J-A19042-19
    trial court ordered him to file a Pa.R.A.P. 1925(b) statement, Appellant timely
    complied, and the trial court filed a responsive Pa.R.A.P. 1925(a) opinion.
    On appeal, Appellant avers the trial court erred in denying his petition
    to open and/or strike the default judgments.         We begin our analysis by
    observing that when one is challenging a judgment, he or she may file a
    petition to open the judgment, strike the judgment, or both. “A petition to
    open a default judgment and a petition to strike a default judgment seek
    distinct remedies and are generally not interchangeable.” Stauffer v.
    Hevener, 
    881 A.2d 868
    , 870 (Pa.Super. 2005).             “A petition to open a
    judgment seeks to re-open a case following a default judgment in order to
    assert a meritorious defense; a motion to strike a judgment is the remedy
    sought by one who complains of fatal irregularities appearing on the face of
    the record.” U.S. Bank Nat'l Ass'n for Pennsylvania Hous. Fin. Agency
    v. Watters, 
    163 A.3d 1019
    , 1027-28 (Pa.Super. 2017) (internal citations and
    quotation marks omitted).
    ____________________________________________
    (Pa.Super. 2008). See Pa.R.A.P. 311(a)(1) (“An appeal may be taken as of
    right and without reference to Pa.R.A.P. 341(c) from…[a]n order refusing to
    open, vacate, or strike off a judgment.”); Mother's Restaurant, Inc. v.
    Krystkiewicz, 
    861 A.2d 327
    , 334-36 (Pa.Super. 2004) (en banc) (holding
    that, although the trial court had yet to determine the scope of relief or fashion
    an appropriate final decree, this Court had jurisdiction to review the trial
    court’s order denying the defendant’s request for relief from the default
    judgment under Pa.R.A.P. 311(a)(1)). Accordingly, we conclude we have
    jurisdiction over this interlocutory appeal as of right.
    -5-
    J-A19042-19
    Here, Appellant filed both a petition to open and a petition to strike. We
    first consider Appellant’s arguments regarding his petition to strike the default
    judgment.
    An appeal from the denial of “[a] petition to strike a default judgment
    presents us with a question of law; consequently, our standard of review is de
    novo and our scope of review is plenary.” 
    Id. at 1028
    n.9.
    A petition to strike a judgment is a common law proceeding
    which operates as a demurrer to the record. A petition to strike
    the 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. When deciding if there are
    fatal defects on the face of the record for the purposes of a petition
    to strike a judgment, a court may only look at what was in the
    record when the judgment was entered.
    Cintas Corp. v. Lee’s Cleaning Services, Inc., 
    549 Pa. 84
    , 
    700 A.2d 915
    ,
    917 (1997). “[A] petition to strike is not a chance to review the merits of the
    allegations of a complaint. Rather, a petition to strike is aimed at defects that
    affect the validity of the judgment and that entitle the petitioner, as a matter
    of law, to relief.” Oswald v. WB Public Square Associates, LLC, 
    80 A.3d 790
    , 794 (Pa.Super. 2013) (citation omitted). “The standard for ‘defects’ asks
    whether the procedures mandated by law for the taking of default judgments
    have been followed.” Continental Bank v. Rapp, 
    485 A.2d 480
    , 483
    (Pa.Super. 1984) (citation omitted). See Liquid Carbonic Corp. v. Cooper
    & Reese, Inc., 
    416 A.2d 549
    , 550 (Pa.Super. 1979) (“If the record is self-
    sustaining, the judgment cannot be stricken.”) (quotation and quotation
    -6-
    J-A19042-19
    marks omitted)). A fatal defect on the face of the record denies the
    prothonotary the authority to enter judgment. Erie Ins. Co. v. Bullard, 
    839 A.2d 383
    , 388 (Pa.Super. 2003).        When a prothonotary enters judgment
    without authority, that judgment is void ab initio. See 
    id. Appellant claims
    the following fatal defects appear on the face of the
    record, and thus, the trial court erred in failing to strike the default judgments:
    (1) Appellant was not properly served with the complaint; and (2) Appellant
    was not provided with notice of the entry of the default judgment as required
    by Pennsylvania Rule of Civil Procedure 236. See Appellant’s Brief at 12.
    Appellant first claims the record fails to demonstrate that he was served
    with Appellee’s complaint. With regard to the service of original process upon
    Appellant, the failure to adhere to the Pennsylvania Rules of Civil Procedure
    can be a facially fatal defect. Cintas 
    Corp., supra
    .
    Service of process is a mechanism by which a court obtains
    jurisdiction of a defendant, and therefore, the rules concerning
    service of process must be strictly followed. Without valid service,
    a court lacks personal jurisdiction of a defendant and is powerless
    to enter judgment against [the defendant]. Thus, improper
    service is not merely a procedural defect that can be ignored when
    a defendant subsequently learns of the action....However, the
    absence of or a defect in a return of service does not necessarily
    divest a court of jurisdiction of a defendant who was properly
    served. [T]he fact of service is the important thing in determining
    jurisdiction and…proof of service may be defective or even lacking,
    but if the fact of service is established jurisdiction cannot be
    questioned.
    Cintas 
    Corp., supra
    , 700 A.2d at 917-18 (citations and quotation marks
    omitted).
    -7-
    J-A19042-19
    Pennsylvania Rule of Civil Procedure 402 discusses the requirements for
    service of original process:
    Rule 402. Manner of Service. Acceptance of Service.
    (a)   Original process may be served
    (1) by handing a copy to the defendant[.]
    Pa.R.Civ.P. 402(a)(1)(emphasis in original).
    Here, the sheriff’s return of service for the complaint reveals service was
    effectuated upon Appellant on February 16, 2018, at 12:41 p.m., by handing
    a copy of the complaint to “Richard Johnson (Def.)” at his residence. As the
    trial court held: “[T]he Sheriff’s Return of Service states that the Complaint
    was personally served on [Appellant] on February 16, 2018. Absent fraud,[4]
    a sheriff’s return of service which is full and complete on its face is conclusive
    and immune from attack by extrinsic evidence.”            Trial Court Order, filed
    12/6/18, at 1 n.1 (citing Hollinger v. Hollinger, 
    416 Pa. 473
    , 
    206 A.2d 1
    (1965))5 (footnote added).
    ____________________________________________
    4 While Appellant claims there was “fraudulent service,” Appellant has not
    developed this bald assertion. See Appellant’s brief at 13 (“In the instant
    case, Appellant claims that the record is self-sustaining to have the Judgment
    stricken because [of] the false and fraudulent service of the Complaint[.]”).
    5   In 
    Hollinger, supra
    , 206 A.2d at 3, our Supreme Court explained:
    The rule of conclusiveness of a return of service of process is
    based upon the presumption that a sheriff, acting in the course of
    his official duties, acts with propriety and, therefore, when the
    sheriff in the course of such official duties makes a statement, by
    way of an official return, such statement is given conclusive effect.
    -8-
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    Accordingly, from the face of the record, service of original process was
    effectuated upon Appellant as required by Pa.R.Civ.P. 402(a)(1). Therefore,
    the trial court properly denied the petition to strike on this basis. See Liquid
    Carbonic 
    Corp., 416 A.2d at 550
    (“If the record is self-sustaining, the
    judgment cannot be stricken.”) (quotation and quotation marks omitted)).
    Appellant next claims the record reveals that he was not given proper
    notice of the entry of the March 28, 2018, default judgment as required by
    Pa.R.Civ.P. 236. With regard to service of the notice of the entry of the default
    judgment against Appellant, Rule 236 provides the following:
    Rule 236. Notice by Prothonotary of Entry of Order or
    Judgment
    (a) The prothonotary shall immediately give written notice of the
    entry of
    (1) a judgment entered by confession to the defendant by
    ordinary mail together with a copy of all documents filed with the
    prothonotary in support of the confession of judgment. The
    plaintiff shall provide the prothonotary with the required notice
    and documents for mailing and a properly stamped and addressed
    envelope; and
    (2) any other order or judgment to each party’s attorney of record
    or, if unrepresented, to each party. The notice shall include a copy
    of the order or judgment.
    Note: See Rules 1012 and 1025 as to the requirement
    of an address on an appearance and a pleading.
    (b) The prothonotary shall note in the docket the giving of the
    notice and, when a judgment by confession is entered, the mailing
    of the required notice and documents.
    (c) Failure to give the notice or when a judgment by confession is
    entered to mail the required documents, or both, shall not affect
    the lien of the judgment.
    Pa.R.Civ.P. 236 (emphasis in original).
    -9-
    J-A19042-19
    In the case sub judice, the relevant certified docket entries indicate:
    03/28/2018           JUDGMENT STATUS DOCKET
    DEFAULT JUDGMENT Amount: 608, 871.05
    ***
    03/28/2018         PRAECIPE FOR DEFAULT JUDGMENT AGAINST
    RICHARD A. JOHNSON, JR. : : On behalf of Defendant: Richard
    A. Johnson, Jr. : : Filed By: MARVIN POWELL, [ESQUIRE]
    03/28/2018    236 NOTICE OF ENTERY [sic] OF JUDGMENT
    AGAINST RICHARD A. JOHNSON, JR. : : On behalf of Defendant:
    RICHARD A. JOHNSON, JR. : : Filed By MARVIN POWELL,
    [ESQUIRE]
    03/28/2018         CERTIFICATE OF SERVICE ENTRY OF DEFAULT
    JUDGMENT, 236 NOTICE OF JUDGMENT AGAINST RICHARD A.
    JOHNSON, JR. VIA MAIL ON 3-26-18 UPON RICHARD A.
    JOHNSON, JR. : : On behalf of Defendant: RICHARD A. JOHNSON,
    JR. : : Filed By: MARVIN POWELL, [ESQUIRE]
    Docket Entry, at 3/28/18.
    The record clearly reflects that the lower court’s prothonotary provided
    written notice of the default judgment via mail to Appellant6 and noted the
    giving of such notice on the docket. Contrary to Appellant’s claim, there is no
    fatal defect on the face of the record under Pa.R.Civ.P. 236, and thus, the trial
    court properly denied Appellant’s petition to strike on this basis.7 See Liquid
    ____________________________________________
    6As the trial court noted, the notice was mailed to 317 Pennsylvania Avenue,
    Avondale, which is the same address where Appellant was personally served
    with the complaint by the sheriff. Trial Court Opinion, filed 2/7/19, at 2.
    7 Appellant indicates he is challenging the notice provided in connection with
    the entry of the March 28, 2018, default judgment. See Appellant’s Brief at
    6-7. In any event, we note the certified docket entries also reveal that the
    lower court’s prothonotary provided written notice of the April 3, 2018, default
    judgment via mail to Appellant at 317 Pennsylvania Avenue, Avondale, as well
    as noted the giving of such notice on the docket. Docket Entry, at 4/3/18.
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    J-A19042-19
    Carbonic 
    Corp., 416 A.2d at 550
    (“If the record is self-sustaining, the
    judgment cannot be stricken.”) (quotation and quotation marks omitted)).
    Appellant next claims the trial court erred in denying his petition to open
    the default judgment.
    Generally speaking, a default judgment may be opened if
    the moving party has (1) promptly filed a petition to open the
    default judgment, (2) provided a reasonable excuse or
    explanation for failing to file a responsive pleading, and (3)
    pleaded a meritorious defense to the allegations contained in the
    complaint. Seeger v. First Union National Bank, 
    836 A.2d 163
          (Pa.Super. 2003). Moreover, we note the trial court cannot open
    a default judgment based on the “equities” of the case when the
    defendant has failed to establish all three of the required criteria.
    Seeger, supra.
    Myers v. Wells Fargo Bank, N.A., 
    986 A.2d 171
    , 175-76 (Pa.Super. 2009)
    (citation omitted).
    In the instant case, the trial court determined that, inter alia, Appellant
    failed to demonstrate he met the first prong, i.e., he promptly filed a petition
    to open the default judgment. In this regard, the trial court noted that almost
    three months passed from when the default judgments were entered until
    Appellant filed his petition to open. See Trial Court Opinion, filed 2/7/19, at
    2.
    With regard to the first prong, whether the petition to open was timely
    filed, we note:
    The timeliness of a petition to open a judgment is measured
    from the date that notice of the entry of the default judgment is
    received. The law does not establish a specific time period within
    which a petition to open a judgment must be filed to qualify as
    timeliness. Instead, the court must consider the length of time
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    J-A19042-19
    between discovery of the entry of the default judgment and the
    reason for delay.
    ***
    In cases where the appellate courts have found a “prompt”
    and timely filing of the petition to open a default judgment, the
    period of delay has normally been less than one month.
    
    Myers, 986 A.2d at 176
    (citations omitted).
    In the case sub judice, on March 26, 2018, the prothonotary mailed
    notice of the entry of the default judgment as to the monetary damages to
    Appellant at his home address of 317 Pennsylvania Avenue in Avondale, and
    on April 3, 2018, the prothonotary mailed notice of the default judgment as
    to Count III of Appellee’s complaint to Appellant at the same address.
    Appellant does not dispute the docket entries exist; however, in
    explaining the reason for his delay in filing the petition to open, Appellant
    contends he never received the notices as he did not live at 317 Pennsylvania
    Avenue in Avondale at the time the notices were mailed. As proof thereof,
    Appellant attached to his petition to open a copy of his Pennsylvania Driver’s
    License, which lists 519 School House Road, Kennett Square, PA, as his
    residence’s address.
    However, the driver’s license indicates the date of issuance of the license
    was April 25, 2018, which is well after the prothonotary provided Appellant
    with notice of the entry of the default judgments to his home address of 317
    Pennsylvania Avenue in Avondale. Accordingly, we conclude the trial court
    did not abuse its discretion in finding Appellant failed to promptly file a petition
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    J-A19042-19
    to open the default judgment, and therefore, the trial court properly denied
    the petition to open.8        See U.S. Bank Nat’l Ass’n for Pa. Hous. Fin.
    
    Agency, supra
    (holding that if the petition to open fails to satisfy any prong
    of the test, then the petition will be denied).
    For all of the foregoing reasons, we affirm.
    Affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/22/19
    ____________________________________________
    8 The trial court also concluded Appellant failed to provide a reasonable excuse
    or explanation for failing to file a responsive pleading. See Trial Court Opinion,
    filed 2/7/19, at 2. Appellant contended that he did not file a responsive
    pleading because he did not live at 317 Pennsylvania Avenue in Avondale
    when the complaint was served by the sheriff. As the trial court noted, the
    sheriff’s return of service for the complaint indicates the complaint was handed
    to Appellant, and therefore, whether Appellant actually resided at 317
    Pennsylvania Avenue, or was merely on the premises for some other reason,
    is irrelevant to whether he received and had notice of the complaint. See 
    id. - 13
    -