J. A16038/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ISATU BARRIE AND : IN THE SUPERIOR COURT OF
MOHAMED BARRIE, W/H : PENNSYLVANIA
:
v. :
:
INEZ G. BROOKS AND :
INEZ TOO BANQUET HALL, : No. 282 EDA 2018
:
Appellants :
Appeal from the Order Entered July 14, 2017,
in the Court of Common Pleas of Philadelphia County
Civil Division at No. June Term 2016 No. 03424
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 17, 2018
Inez G. Brooks and Inez Too Banquet Hall (collectively, “Ms. Brooks”)
appeal, pro se, from the July 14, 2017 order entered by the Court of Common
Pleas of Philadelphia County denying Ms. Brooks’s motion to strike/open
judgment by default. After careful review, we affirm.
The trial court provided the following synopsis of the relevant factual
and procedural history:
The present litigation arises from a slip and fall that
occurred at Defendant Inez Too Banquet Hall on
May 14, 2016. On that date, Plaintiff Isatu Barrie
[(hereinafter, “appellee”)] slipped on some water that
had been spilled on a wooden dance floor. As a result
of this fall, [appellee] alleges that she sustained
serious injuries, including a fibular fracture and ankle
fracture, which required surgery to repair.
J. A16038/18
On June 29, 2016[, appellee] filed the present lawsuit
in the Philadelphia Court of Common Pleas. [Appellee]
subsequently filed a complaint on July 21, 2016. On
July 25, 2016 said Complaint was served by non-party
Stephen Bongard on [Ms. Brooks] at 624 S. 62nd
Street, Philadelphia, Pennsylvania. Service was
accepted by Lorna Brooks. [Ms. Brooks] did not
answer [appellee’s] complaint and on September 10,
2016, [appellee] mailed a Notice of Praecipe to Enter
Judgment by Default. This Notice was sent to
[Ms. Brooks] via [C]ertified and [F]irst [C]lass [M]ail.
The [C]ertified [M]ail was returned as unclaimed, but
the [F]irst [C]lass [M]ail was not returned.
On Tuesday[,] September 27, 2016, a Case
Management Conference was held and the Honorable
Arnold New issued a Case Management Order setting
relevant discovery deadlines and a proposed trial
date. [Ms. Brooks] did not appear at this conference.
On May 9, 2017[, Ms.] Brooks filed a Motion for
Extraordinary Relief stating that she had not been
served, that she did not carry premises liability
insurance, and that no discovery in this matter had
been conducted. In this Motion[, Ms. Brooks] asked
[the trial court] to [o]rder [appellees] to personally
serve [Ms. Brooks], vacate the Case Management
Order, and allow the parties to complete discovery
before rescheduling the requisite litigation events.
[The trial court] denied [Ms. Brooks’s] Motion without
prejudice on June 1, 2017.
On May 10, 2017[, appellees] filed a Praecipe to Enter
Default Judgment against [Ms. Brooks.] A default
judgment was entered against [Ms. Brooks] that day
and notice was sent two days later on May 12, 2017.
On June 2, 2017[, Ms. Brooks] filed a Petition to Open
Judgment. [Appellees] answered on June 22, 2017
and on June 30, 2017[, Ms. Brooks] filed a reply to
said answer. On July 14, 2017, [the trial court] denied
[Ms. Brooks’s] Motion and ordered an assessment of
damages hearing be scheduled. To date no
assessment of damages hearing has taken place.
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[Ms. Brooks] timely appealed [the trial court’s]
July 14, 2017 Order to the Commonwealth Court on
July 21, 2017. Pursuant to [the trial court’s]
December 6, 2017 Order, [Ms. Brooks] filed a
Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) on December 27, 2017.
In this Statement, [Ms. Brooks] argues that she was
never personally served as required by the
Pennsylvania Rules of Civil Procedure and that as such
[the trial court] should have exercised its equitable
powers in her favor and opened the Default Judgment.
Trial court opinion, 12/27/17 at unnumbered pages 1-3 (citations to the record
and footnotes omitted).
Pursuant to Pa.R.A.P. 1925(a), the trial court filed its opinion on
December 27, 2017. On January 29, 2018, this case was transferred from the
Commonwealth Court of Pennsylvania to this court. On July 18, 2018, this
court heard oral argument in this case. Ms. Brooks attended oral argument
and argued before the panel on her own behalf. This court listened intently
to Ms. Brooks’s arguments and is now in a position to review her issues raised
on appeal.
Ms. Brooks raises the following issues for our review:
1. Did [Ms. Brooks] receive personal service of
[a]ppellees’ Complaint as required by Pa. Rules
of Civil Procedure, Rule 402?
2. Did the Court/Court Administration err in failing
to mail notice of the Case Management Hearing
to [Ms. Brooks] who had not yet entered an
appearance in the civil action against [her], in
accordance with Pa. Rules of Civil Procedure,
Rule 440(a)(1), (2)(i), Service of Legal Papers
Other than Original Process?
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3. Did counsel to [a]ppellees act in good faith when
calling [Ms. Brooks] to inquire about premises
liability insurance prior to the Case Management
Hearing, while failing to provide notice of the
Hearing to [Ms. Brooks], when he knew [Ms.
Brooks was] unrepresented by counsel, in
accordance with Pa. Rules of Civil Procedure,
Rule 440(a)(1), (2)(i), Service of Legal Papers
Other than Original Process?
4. Did Court/Court Administration err in failing to
mail the Case Management Order to [Ms.
Brooks], in accordance with Pa. Rules of Civil
Procedure, Rule 440(a)(1), (2)(i), Service of
Legal Papers Other than Original Process?
5. Did counsel to [a]ppellees act in good faith by
failing to mail a copy of the [a]ppellees’ Case
Management Memorandum and Case
Management Order to [Ms. Brooks], when he
knew they were unrepresented by counsel, in
accordance with Pa. Rules of Civil Procedure,
Rule 440(a)(1), (2)(i), Service of Legal Papers
Other than Original Process?
6. Did the Court display bias towards [a]ppellees,
by denying [Ms. Brooks’s] Petition for
Extraordinary Relief after being apprised [Ms.
Brooks] had not been served with the
Complaint, Notice of the Case Management
Hearing or Case Management Order and that
the case was not ripe for settlement discussions
since no discovery had been completed? (See
[Ms. Brooks’s] Petition for Extraordinary Relief
and [Ms. Brooks’s] May 4 and 5, 2017 letters to
the Court appended hereto.)
7. Did the Court display bias towards [a]ppellees,
by denying [Ms. Brooks’s] Petition to
Strike/Open Judgment by Default which was
timely filed?
8. Considering [a]ppellees waited from September
8, 2016 (the date of the Notice of Default) until
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May 10, 2017 (the date [Ms. Brooks] filed a
Petition for Extraordinary Relief), some eight (8)
months later, to file a Praecipe to Enter
Judgment by Default, would [a]ppellees by
unduly harmed by the slight delay necessitated
to allow the case to work its way through the
Court?
9. In consideration of the gravity of the allegations
in [a]ppellee[s’] Complaint, and the fact the
[a]ppellees were in no apparent rush to litigate
the case (demonstrated by waiting eight (8)
months to take judgment by default), why did
the trial Court not use its equitable powers and
discretion to grant [Ms. Brooks’s] Petition to
Strike that was timely filed with the Court?
Ms. Brooks’s brief at 4-6 (emphasis in original).
As a prefatory matter, although this Court is willing to
construe liberally materials filed by a pro se litigant,
pro se status generally confers no special benefit
upon an appellant. Commonwealth v. Maris, [] 629
A.2d 1014, 1017 n.1 (Pa.Super. 1993). Accordingly,
a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court.
Id. This Court may quash or dismiss an appeal if an
appellant fails to conform with the requirements set
forth in the Pennsylvania Rules of Appellate
Procedure. Id.
Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa.Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005). For example, the Rules of Appellate
Procedure require that each issue raised for appellate review be supported by
“discussion and analysis of pertinent authority.” Coulter v. Ramsden, 94
A.3d 1080, 1088 (Pa.Super. 2014), appeal denied, 110 A.3d 998 (Pa. 2014).
“Arguments not appropriately developed include those where the party has
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failed to cite any authority in support of a contention.” Id., citing Lackner v.
Glosser, 892 A.2d 1, 29-30 (Pa.Super. 2006) (citations omitted).
With the exception of her seventh issue on appeal, Ms. Brooks’s
arguments in her brief do not develop any of her issues, nor do they provide
citation to any legal authority as required by the Pennsylvania Rules of
Appellate Procedure. Accordingly, we are constrained to find that Ms. Brooks
has waived issues one through six, eight, and nine on appeal.
In her seventh issue on appeal, Ms. Brooks contends that the trial court
erred when it denied her motion to open the default judgment entered against
her.
It is well settled that a petition to open a
default judgment is an appeal to the
equitable powers of the court, and absent
an error of law or a clear, manifest abuse
of discretion, it will not be disturbed on
appeal. An abuse of discretion occurs
when a trial court, in reaching its
conclusions, overrides or misapplies the
law, or exercises judgment which is
manifestly unreasonable, or the result of
partiality, prejudice, bias or ill will.
US Bank N.A. v. Mallory, 982 A.2d 986, 994
(Pa.Super. 2009) (quoting ABG Promotions v.
Parkway Publishing, Inc., 834 A.2d 613, 615-616
(Pa.Super. 2003) (en banc) (quotations, quotation
marks, and citations omitted).
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.
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McFarland v. Whitham, [] 544 A.2d 929 (Pa. 1988);
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, 175-176 (Pa.Super. 2009).
Our analysis begins with the third prong: whether Ms. Brooks pleaded
a meritorious defense to the allegations contained in appellees’ complaint. In
her petition to open default judgment, Ms. Brooks provides the following:
In the instant matter, [Ms. Brooks denies appellees’]
injuries occurred at [Ms. Brooks’s] facility, but
nonetheless have been in conversation/negotiation
with [appellees] counsel for several months, having
provided counsel with a copy of the banquet hall’s
insurance declarations sheet during the week of
May 15, 2017.
Ms. Brooks’s petition to strike/open default judgment, 6/1/17 at 5, # 24.
This court has defined the term “meritorious defense” as “allegations of
fact that, if proven at trial, would entitle the petitioners to relief[.]” Smith v.
Morrell Beer Distributors, Inc., 29 A.3d 23, 28 (Pa.Super. 2011). In
Smith, this court found that the appellants did not plead a meritorious defense
because the appellants relied on conclusions of law and challenges to the
plaintiff’s proof rather than setting forth a meritorious defense supported by
verified allegations of fact.” Id.
In the instant case, Ms. Brooks attached a copy of her answer to
appellee’s complaint. Therein, much like the appellants in Smith,
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Ms. Brooks’s answer consists of little more than conclusions of law and
challenges to appellees’ proof. We find that in neither her answer nor in her
petition to open default judgment does Ms. Brooks provide a meritorious
defense based in allegations of fact that would entitle her to relief if proven at
trial. Accordingly, because Ms. Brooks was unable to meet all three elements
required to open a default judgment, we must find that the trial court did not
abuse its discretion when it denied Ms. Brooks’s petition to open default
judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
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Barrie, I. v. Brooks, I.
Combined Opinion