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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ELISEO-THL MOTORSPORTS, LLC, A IN THE SUPERIOR COURT OF PENNSYLVANIA LIMITED LIABILITY PENNSYLVANIA COMPANY,
Appellee
v.
ELISEO SALAZAR, INDIVIDUALLY AND T/D/B/A ELISEO SALAZAR RACING, INC., SALAZAR RACING INC. AND SALAZAR RACING; KARI MARCINIAK AN INDIVIDUAL; ELISEO SALAZAR RACING, INC., A FLORIDA CORPORATION, INDIVIDUALLY AND T/D/B/A SALAZAR RACING, INC., AND SALAZAR RACING; ELISEO SALAZAR RACING, INC., A PENNSYLVANIA CORPORATION, INDIVIDUALLY AND T/D/B/A SALAZAR RACING, INC., AND SALAZAR RACING, AND SALAZAR RACING, INC., A PENNSYLVANIA CORPORATION; AND SALAZAR RACING, AN UNREGISTERED FICTITIOUS NAME,
Appellants No. 1718 WDA 2013
Appeal from the Order Entered October 21, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 13-007243
BEFORE: BENDER, P.J.E., OLSON and FITZGERALD,* JJ. MEMORANDUM BY OLSON, J.: FILED OCTOBER 06, 2014
Appellants, Eliseo Salazar, individually and t/d/b/a Eliseo Salazar Racing, Inc., et al., appeal from the order entered on October 21, 2013,
- • Former Justice specially assigned to the Superior Court.
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On May 15, 2013, Eliseo-claims including breach of contract, fraud, and conversion. Appellants did not file a responsive pleading to the complaint. Therefore, on June 12, 2013, THL Motorsports served the individual Appellants with notices of intention to file a praecipe for entry of default judgment, pursuant to Pennsylvania Rule of Civil Procedure 237.1. See Praecipe to Enter Default
On June 26, 2013 after Appellants had still failed to file a responsive pleading to the complaint THL Motorsports filed, in the Allegheny County
praecipe to enter default judgment against all Appellants. Id. at 2. That same day, THL Motorsports served the individual Appellants with the praecipe to enter default judgment. Id. at 4-5.
On June 26, 2013, the ACDCR entered default judgment in favor of THL Motorsports and against the individual Appellants, in accordance with Pennsylvania Rule of Civil Procedure 1037(b). See Docket Entry, 6/26/13. The next day, the ACDCR provided the individual Appellants with notices of
the docket the giving of 236(b). See Docket Entry, 6/26/13; see also Praecipe to Enter Default Judgment, 6/26/13, at 1 (ACDCR wrote that notice was sent on June 27, 2013).
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On June 28, 2013, Appellants filed a petition to open the default judgment. Within the body of the petition to open, Appellants declared that the doctrines of res judicata and collateral estoppel acted to bar THL at 1-4. Further, within the body of the petition to open, Appellants wrote and intend to file the preliminary objections when the judge within [the Commerce and Complex Litigation Center of the Allegheny County Court of Common Plea Id. at 3 (some internal capitalization omitted). However, Appellants did not attach the preliminary objections or any other responsive pleading to the petition to open. See Pa.R.C.P.
judgment . . . of default . . . shall have attached thereto a verified copy of . . . the answer which the petitioner to assign [the] case to the commerce and complex litigation irregularities. These included: 1) Appellants did not verify the petition to open, see which does not appear of r had attached their proposed preliminary objections to the petition to open (which they did not), Appellants did not even attempt to provide an
the
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see A defendant who seeks to file a pleading other than an answer [with the petition to open] is not entitled to the benefit of [Rule 237.3,] but must comply with the requirements of Schultz v. Erie Insurance Exchange Schultz A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. The court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure
On July 5, 2013, the case was provisionally assigned to the Commerce and Complex Litigation Center of the Allegheny County Court of Common Appellants attempted to raise a number of grounds for relief, including that
s were barred by the doctrines of res judicata and collateral estoppel and that the entire case was barred by the doctrine of lis pendens -15.
On July 31, 2013, the trial court issued a rule to show cause upon THL Motorsports, as to why Appellants were not entitled to have the default judgment opened. THL Motorsports filed an answer to the petition and averred that it was never a party to any underlying case and, therefore, that its claims against Appellants could not be barred by the doctrines of res judicata, collateral estoppel, or lis pendens
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required that the petition be denied. Id. at 5.
The trial court held oral argument on the petition and, on October 21,
on a number of independent grounds, including: Appellants did not verify their petition to open; Appellants did not attach a responsive pleading to their petition to open; and, even if Appellants had attached their later-filed preliminary objections to the petition to open, at 1-3.
Appellants filed a timely notice of appeal and now raise the following claims to this Court:
to open default judgment where [] Appellants promptly filed the petition, presented a meritorious defense, and demonstrated an excusable reason for failing to file a responsive pleading?
[2.] Did the trial court err, as a matter of law, in treating
with respect to affirmative pleading obligations?
[3.] Did the trial court err, as a matter of law, in considering praecipe for default judgment even though [] Appellants had filed preliminary objections in the nature of a demurrer prior to the trial court accepting the underlying case?
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As our Supreme Court held in Schultz: A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion. The court will only exercise this discretion when (1) the petition has been promptly filed; (2) a meritorious defense can be shown; and (3) the failure to appear ca Schultz, 477 A.2d at 472 (emphasis in original). Judgment of Non Pros
Schultz. Rule 237.3 provides:
(a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237.1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file.
(b) If the petition 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.
change th ____________________________________________
1 For ease of discussion, we have re-
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as specified by our Supreme Court in Schultz, are applicable to every petition to open a default judgment. Pa.R.C.P. 237.3 note. The effect of Rule 237.3 is simply that, when a party attaches a proposed answer to a petition to open,2 such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of th Pa.R.C.P. 237.3 note.
With respect to a petition to open, a careful reading of Rule 237.3 reveals that the rule only applies to instances where the defendant attaches
answer which the petitioner seeks leave to Pa.R.C.P. 237.3(a) (emphasis added). The note to the rule specifically
A defendant who seeks to file a pleading other than an answer is not entitled to the benefit of [Rule 237.3,] but must comply with the requirements of Schultz Pa.R.C.P. 237.3 note.
Therefore, where the defendant files a petition to open and wishes to file preliminary objections to the complaint, the defendant is not given the
suppl[y] two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or ____________________________________________
2 the petition [be] filed within ten days after
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legitimate excuse for the inactivity or delay resulting in the entry of the judgment. re the defendant files a petition to open and wishes to file preliminary objections to the complaint, the defendant must plead in his petition to open the petition has
Schultz, 477 A.2d at 472 (emphasis in original). The defendant must then attach, to his petition to open, the proposed preliminary objections and the
In the case at bar, Appellants did not attach any proposed responsive pleading to the petition to open. Rather, Appellants attached, to the petition to open, an unresponsive motion
al court Appellants simply did not attach any proposed pleading which could have this basis alone, Appellants
We are cognizant of the fact that, on July 12, 2013, Appellants attempted to file preliminary objections to the complaint. However, this filing occurred 16 days after the ACDCR entered default judgment against Appellants. Therefore, in order for the proposed pleading to have had any petition to open the default judgment. The trial court did not do so; thus, the filing did not have any legal effect.
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Further, even if Appellants had attached their proposed preliminary objections to their petition to open, the trial court would have still been to plead the necessary element
Schultz, 477 A.2d 473.
Finally, even if Appellants had attached their proposed preliminary objections to their petition to open and even if Appellants had attempted to ple
still been Appellants did not verify their petition to open; and, in the absence of a verification, any attempt to plead the necessary factual and outside-the-
See Pa.R.C.P. 206.3 appear of record shall be verified). judgment.
Order affirmed.
Justice Fitzgerald joins this memorandum.
President Judge Emeritus Bender files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/6/2014
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