City of Philadelphia v. Wake – Cmwlth. Court – March 12, 2021 – reported decision
http://www.pacourts.us/assets/opinions/Commonwealth/out/397CD19_3-12-21.pdf?cb=1
Held: Where there is a factual dispute about when a party got notice of judgment execution proceedings on party’s petition to open judgment, a court must hold a hearing to resolve the factual dispute.
Opening – necessary element of proof -- The party seeking to open a default judgment must establish three elements: (1) the petition to open must be promptly filed; (2) the default can be reasonably explained or excused; and (3) there is a meritorious defense to the underlying claim. McCoy v. Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa. 1973). Failure to satisfy any one element will result in the petition to open default judgment being denied. Id. “[T]he 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 v. First Union Nat’l Bank, 836 A.2d 163, 167 (Pa. Super. 2003) (some internal quotation marks omitted).
Timeliness -- As to the first requirement, “[t]he timeliness of a petition to open 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 timely.” Castings Condo. Ass’n, 663 A.2d at 223 (internal citation omitted). “[T]he court must consider the length of time between discovery of entry of the default judgment and the reason for delay.” U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 (Pa. Super. 2017) (emphasis added) (citing Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009)).
Length of 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.” U.S. Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (holding 82-day delay between notice of default judgment and petition to open default judgment did not constitute prompt filing); see also Pappas v. Stefan, 304 A.2d 143, 146 (Pa. 1973) (holding 55-day delay between notice of default judgment and petition to open default judgment did not constitute prompt filing); Am. Vending Co. v. Brewington, 432 A.2d 1032, 1036 (Pa. Super. 1981) (holding two and one-half-month delay between when defendants notified of default judgment and petition to open default judgment did not constitute prompt filing); Schutte v. Valley Bargain Ctr., Inc., 375 A.2d 368, 371 (Pa. Super. 1977) (holding 47-day delay between resolution of confusion regarding claims and petition to open default judgment did not constitute prompt filing); cf. Alba v. Urology Assocs. of Kingston, 598 A.2d 57, 58 (Pa. Super. 1991) (holding petition to open default judgment filed 14 days after default judgment entered constituted prompt filing).
Justifiable excuse -- As to the remaining requirements to open a default judgment, a petitioner must establish a justifiable excuse in the delay of filing a responsive pleading leading to the default. Alba, 598 A.2d at 58. “Whether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case.” Castings Condo. Ass’n, 663 A.2d at 223-24. The petitioner “must [also] plead an arguable meritorious defense sufficient to justify relief if proven.” Id. at 224.
Timeliness of Petition in case at bar – There was a factual dispute about when appellants got notice of the default judgment. The trial court determined that 83 days elapsed between when the notice of entry of default judgment was filed and when Appellants filed the Petition to Open.. Appellants submit, however, that they learned of the entry of the default judgment only seven days before they filed the Petition. Without conducting a hearing to resolve the factual dispute as to when Appellants received notice of the default judgment, appears to have disregarded Appellants’ assertions that they did not receive earlier notice of the default judgment and measured the time solely from the date of the entry of the judgment until the filing of the Petition, ultimately concluding that the alleged delay resulted in the filing not being a “prompt” filing.
Such an analysis is not consistent with the case law discussed above, which requires consideration of when Appellants discovered the filing of the entry of default judgment. Thus, we must conclude that the trial court erred in failing to consider the time between discovery of the entry of judgment and the filing of the Petition when determining whether the Petition was timely. A remand for a hearing to resolve factual disputes regarding Appellants’ discovery of the entry of default judgment, therefore, is necessary.
Justifiable Excuse for Delay – improper service of writ of execution -- Appellants contend that their delay in responding to the writ of execution was based upon the City’s failure to comply with the rules of service of original process according to Pa. R.C.P. Nos. 402 and 424. Thus, a remand is also necessary to resolve factual disputes regarding the authority of the person who was served to accept service on behalf of Appellants and to consider whether Appellants established a justifiable excuse.
Where the party seeking to open a judgment asserts that service was improper, a court must address this issue before considering any other factors. Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa. 1997) (citations omitted). “If valid service has not been made, then the judgment should be opened because the court has no jurisdiction over the defendant and is without power to enter a judgment against him or her.”1 Id.
Generally, “[a] sheriff’s return setting forth that original process was served is conclusive and immune from attack as to the facts stated therein of which the sheriff presumptively has personal knowledge.” In re Monroe Cnty. Tax Claim Bureau, 91 A.3d 265, 272 (Pa. Cmwlth. 2014 Conversely, “whether service was made on an agent or person-in-charge can be challenged because most of the facts regarding the nature of the responsibilities of the person served are not within the sheriff’s personal knowledge.” Id. If a party wishes to challenge the sheriff’s return on this basis, extraneous evidence can be used to challenge the return. Id.
