J-A19009-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A19009-14
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).
-2-
J-A19009-14
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
-3-
J-A19009-14
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
-4-
J-A19009-14
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?
-5-
J-A19009-14
1
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-
-6-
J-A19009-14
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
-7-
J-A19009-14
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.
-8-
J-A19009-14
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.
-9-
J-A19009-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
- 10 -