J-A18010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DUTCHESS QUARRY & SUPPLY CO., INC., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LONGVIEW CONSTRUCTION, LLC,
Appellee No. 1761 MDA 2015
Appeal from the Order Entered September 22, 2015
In the Court of Common Pleas of Berks County
Civil Division at No(s): 15-15040
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 18, 2016
Appellant, Dutchess Quarry & Supply Co., Inc., appeals from the
September 22, 2015 order opening and striking a foreign judgment against
Appellee, Longview Construction, LLC (“Longview”). After careful review, we
vacate the order and remand for proceedings consistent with this
memorandum.
On March 19, 2013, Appellant filed a Complaint against Longview in
the Supreme Court of New York, Dutchess County. Appellant’s Brief at 2.
The complaint was served on Longview on April 3, 2013, and again on April
17, 2013. Id. After Longview failed to file an answer to the complaint,
Appellant petitioned for judgment. On July 23, 2013, default judgment was
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*
Former Justice specially assigned to the Superior Court.
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entered by the Supreme Court of New York in favor of Appellant and against
Longview. Id. at 3.
The subsequent procedural history of this case was summarized by the
trial court in its Pa.R.A.P. 1925(a) opinion:
On July 14, 2015, [Appellant] filed with the Berks County
Prothonotary a Praecipe for Registration of Foreign Judgment
pursuant to the Uniform Enforcement of Foreign Judgments Act.
The praecipe indicated … that the judgment amount was
$184,601.77, not including costs of litigation and attorney’s fees,
which were recorded for $1,374.25.
…
On July 23, 2015, [Longview], by way of attorney Nicole
Plank, Esquire, filed a Petition to Open/Strike Default Judgment
in Berks County, Pennsylvania, alleging that when the default
judgment was entered in the state of New York, the parties were
attempting to “reconcile this matter”. [Longview] further alleged
that it had a valid defense to the underlying lawsuit.
Specifically, [Longview] alleged that it “never ordered any
construction materials from [Appellant] between July 2011 and
October 2011, and never received any construction materials
from [Appellant] between July 2011 and October 2011.”
On August 11, 2015, the trial court entered a rule to show
cause order on [Appellant] and scheduled argument on
questions of law for September 16, 2015. On September 2,
2015, [Appellant] filed an answer and new matter to
[Longview’s] petition, denying that [Longview] had a meritorious
defense. On September 18, 2015, following argument on the
petition, the court entered an order, striking off the default
judgment.[1]
Trial Court Opinion (TCO), 2/8/16, at 2.
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1
The order opening and striking the judgment against Longview is dated
September 18, 2015, but was entered on the docket on September 22,
2015. Thus, the order is referred to herein as the “September 22, 2015
Order.”
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On October 7, 2015, Appellant filed a timely notice of appeal followed
by a timely court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.2 Herein, Appellant presents the following sole
issue for our review: “Did the trial court err when it opened and struck the
New York Judgment at issue in this matter, via its September 22, 2015
Order as later explained by its Opinion of February 8, 2016?” Appellant’s
Brief at 2.
It is unclear in light of the record before us whether the court intended
to “open” or “strike” the default judgment. The September 22, 2015 Order
states that the judgment shall be “opened and stricken,” but the court’s Rule
1925(a) opinion merely addresses the merits for “opening” a judgment. It is
well-settled under Pennsylvania law that opening a default judgment and
striking a default judgment are two distinct remedies, and that the two are
generally not interchangeable. Green Acres Rehabilitation and Nursing
Center v. Sullivan, 113 A.3d 1261, 1270 (Pa. Super. 2015).
For purposes of this appeal, the distinction between these two
dispositions is vital, because it impacts our ability to review this matter.
Our Court may reach the merits of an appeal taken from (1) a
final order or an order certified as a final order; (2) an
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2
Longview filed a motion to quash the appeal, arguing that the order being
appealed is interlocutory and not appealable. On December 1, 2015, this
Court entered an order denying the motion without prejudice to Longview’s
right to again raise the issue presented in the motion before the merits
panel.
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interlocutory order appealable as of right; (3) an interlocutory
order appealable by permission, or (4) a collateral order. As a
general rule, only final orders are appealable, and final orders
are defined as orders disposing of all claims and all parties.
In re Bridgeport Fire Litigation, 51 A.3d 224, 229 (Pa. Super. 2012)
(internal citations and quotation marks omitted). “[I]t is well-settled that an
appeal from a trial court’s order granting a petition to open judgment is
interlocutory.” Motley Crew, LLC v. Bonner Chevrolet Co., Inc., 93 A.3d
474, 478 n.4 (Pa. Super. 2014). However, an appeal may lie from an order
striking a default judgment. See United Parcel Service v. Hohider, 954
A.2d 13, 16 (Pa. Super. 2008) (concluding that where an order striking a
default judgment ends the litigation as to all parties and all claims as it
necessitates the filing of a new, separate civil action, it is a final order
pursuant to Pa.R.A.P. 341(b) and an appeal may be taken as of right).
Based on the record before us, we are unable to make a determination
as to whether the trial court intended to open or strike the judgment. It
would also be premature for this Court to determine if an order striking
judgment in this case is final and appealable under the rationale in Hohider.
Accordingly, we vacate the September 22, 2015 Order and remand for the
trial court to issue a new order clearly indicating whether it is granting
Longview’s petition to open or strike the default judgment. If the order is
revised to strike the default judgment, and Appellant again files a timely
appeal, the court must issue a new 1925(a) opinion discussing the finality of
the order and the rationale underlying its decision to strike.
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Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2016
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