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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PRASHANTH JAYARAM : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHAOJUN WANG :
:
Appellant : No. 2266 EDA 2019
Appeal from the Order Entered June 21, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 01416 May Term, 2019
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: Filed: August 25, 2020
Chaojun Wang (Wang/Tenant) appeals pro se from the order,1 entered
in the Court of Common Pleas of Philadelphia, denying his petition for
reconsideration of the Philadelphia Municipal Court’s order denying his petition
to open a default judgment. After careful review, we affirm.
In May 2018, Wang entered into a 12-month residential lease
agreement (Lease) with Appellee, Prashanth Jayaram (Landlord), for the
property located at 543 South 27th Street, Philadelphia, Pennsylvania
(Premises). The Premises, a 1,050-square foot, two-bedroom unit, is part of
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* Retired Senior Judge assigned to the Superior Court.
1 The order was reduced to judgment on July 22, 2019.
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a larger building (Building) which contains thirteen units.2 The Lease, which
commenced on June 15, 2018, included a provision stating “[n]o persons
other than Tenants signing this [L]ease are to occupy the Premises. Any
violation of this provision shall constitute a material default under this Lease.”
Residential Lease for 543 South 27th Street, Philadelphia, PA, 5/17/18, at 2
(attached as Exh. A to Tenant’s Petition to Open Default Judgment). During
the term of the Lease, Landlord became aware that multiple unauthorized
persons were residing at the Premises.3 As a result of this breach, on February
13, 2019, Landlord sent Tenant a notice to vacate the Premises by March 1,
2019.
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2The Premises was structured like a “trinity house,” a very small Philadelphia
abode that typically has only one room on each floor, connected by a narrow
spiral staircase. See https://marketurbanismreport.com/blog/the-trinity-
house-a-philadelphia-style-of-missing-middle (last visited 7/28/20).
3 Landlord testified at trial that he manages the Premises and was surprised
to find Tenant’s wife living there in February of 2019. N.T. Petition to Open
Hearing, 5/3/19, at 29-30. Tenant admitted at the hearing that three of his
in-laws arrived from China in March and, in addition to his wife, were staying
at the Premises to help after the birth of his child. Id. at 36. Landlord saw
another man that Tenant’s wife identified as a “friend” staying at the Premises.
Id. When the eviction occurred, Landlord testified that there were five other
people, not including Tenant’s wife, in the Premises. Id. Finally, Landlord
testified that the additional occupants of the Premises had adverse effects on
the property such as “incredibly high” water bills causing undue pressure on
a new boiler he had had installed, as well as the power breaker being tripped.
Id. at 32-33.
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On February 21, 2019, Landlord filed a Landlord/Tenant complaint in
Philadelphia Municipal Court.4 Tenant was served notice of the lawsuit by
posting at the Premises. The affidavit of service indicates that there was “No
Answer” at the Premises on February 26, 2019 at 3:10 p.m. On February 27,
2019, at 2:35 p.m., the complaint was “posted for DEF” at Tenant’s address,
2619 South St. #A ENT. @ 543 S. 27th St. Tenant did not appear for the
March 21, 2019 hearing. Following the hearing, the municipal court entered
a default judgment in favor of Landlord for possession plus court costs in the
amount of $99.75. Notice of the judgment was sent to Tenant on the same
day at his address, 2619 South Street #A ENT @ 543 South 27th Street,
Philadelphia, PA 19146.
On April 1, 2019, a writ of possession was filed and, thereafter, Landlord
attempted to serve the writ on Tenant at 2619 South Street #A ENT @ 543
South 27th Street, Philadelphia.5 On April 4, 2019, at 4:26 p.m., the writ was
“Returned to Sender, Not Deliverable as addressed, unable to Forward.”
Municipal Court Docket Entry #21, 4/4/19. On April 23, 2019, an alias writ6
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4 Pennsylvania law provides that the Philadelphia Municipal Court and Court of
Common Pleas of Philadelphia County retain concurrent jurisdiction in
landlord/tenant matters. See 42 Pa.C.S. § 1123(b).
5 Landlord’s counsel stated at the petition to open hearing that “the
landlord/tenant office won’t proceed with a lock-out until the [writ of
possession] is served on the tenant.” N.T. Petition to Open Hearing, 5/3/19,
at 17.
6 According to Black’s Law Dictionary, “[a]n alias writ is a second writ issued
in the same cause, where a former writ of the same kind had been issued
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was served on Tenant. On April 23, 2019, Tenant filed an emergency petition
to open the judgment and restore possession claiming that “he never received
any documentation to appear at court . . . [until] the landlord/tenant officer
showed up . . . for a lockout.” Tenant’s Emergency Petition to Open Default
Judgment and Restore Possession, 4/23/19, at 1. Moreover, in his petition,
Tenant claimed that at the time he executed the Lease, Tenant had told
Landlord that his wife would be coming back and forth to the Premises from
San Francisco and that Landlord did not ask Tenant to have his wife sign the
Lease. Id. at 2. Finally, Tenant alleged in the petition that Landlord was
aware that on March 1, 2019, Tenant’s in-laws had arrived at the Premises
from China to help their daughter, Tenant’s wife, “with the pregnancy and
birth [of their child] on April 11, 2019.” Id.
On May 3, 2019, the court held a hearing on Tenant’s petition to open.
At the conclusion of the hearing, the court denied Tenant’s petition, finding:
(1) the petition was untimely filed; (2) Tenant lacked a reasonable defense;
and (3) Tenant had been served. N.T. Petition to Open Hearing, 5/3/19, at
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without effect.” Alias Writ, Black’s Law Dictionary, (2nd ed. 1910). See
Pa.M.R.C.P. 126 (execution and revival of judgments; alias writ of possession
issues after unsuccessful issuance of writ of possession); see also Johnson
v. Bullock-Freeman, 61 A.3d 272 (Pa. Super. 2013).
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37.7 On May 15, 2019, Tenant filed a timely appeal8 to the Philadelphia Court
of Common Pleas from the municipal court’s supplementary order. See
Phila.Civ.R. 1001(a)(3) (designating municipal court’s supplementary order
denying petition to open as type of final order appealable to court of common
pleas). Landlord filed a response to Tenant’s appeal claiming that the
municipal court correctly determined that Tenant “was served with a notice to
vacate, complaint, writ of possession[,] and alias writ at the proper address[,]
2619 South Street #A ENT @ 543 South 27th Street, Philadelphia PA 19146.”
Landlord’s Response to Appeal of Denial of Petition, 4/11/19, at ¶ 5.
On May 17, 2019, Tenant filed an emergency petition in the Court of
Common Pleas of Philadelphia to reconsider the municipal court’s denial of his
petition to open a default judgment. See Phila.Civ.R. 1001(f)(2)(i.)(a-c).9 On
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7 The municipal court entered an ex parte order, on April 25, 2019, granting
Tenant’s emergency motion for return of keys to the Premises and permitting
him to re-enter the Premises “pending the outcome of the Municipal Court
Hearing scheduled for May 3, 2019 at 1:30 p[.]m.” Ex Parte Order, 4/25/19.
8 Such appeals from supplementary orders shall be filed “within 30 days after
the date of the entry of the order on the dockets of the Municipal Court.” See
Phila.Civ.R. 1001(c)(5). Cf. Phila.M.C.R.Civ.P. 124 (appeal to court of
common pleas from judgment for possession of real property arising out of
residential lease must be filed within 10 days after entry of judgment).
9 Pursuant to Rule 1001(f)(2):
Within 20 days of filing notice of appeal, an appellant must file a
motion with the Office of Judicial Records . . . setting forth the
relief requested and shall attach . . . a copy of . . . the
Landlord/Tenant Complaint . . . which was filed in the Municipal
Court[,] . . . the stenographic record of the proceeding before the
Municipal Court . . . and all other documents required to be filed
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May 20, 2019, the court denied Tenant’s request for emergency relief and
ordered the “underlying Petition . . . proceed through the regular court
process.” Ex Parte Order, 5/20/19. See Phila.Civ.R. 1001(g)(2) (appeals filed
pursuant to Rule 1001(a)(3) “shall proceed as motions . . . [and] shall be
limited to a determination by the Court whether the Municipal Court
committed an error of law or abused its discretion upon the petition . . . which
is the subject of the appeal.”). On May 30, 2019, Tenant filed an affidavit of
Landlord’s process server, William Strykowski, to supplement his emergency
motion to reconsider, titling the affidavit as “newly acquired evidence” that
was not previously available at the time the municipal court ruled upon his
motion to open the default judgment. In the affidavit, Strykowski averred
that he “posted a Landlord/Tenant Complaint at 2619 South Street, Phila.,
Pa.[,] on the front door.” Affidavit of William Strykowski, 5/21/19 (attached
to Tenant’s Praecipe to Add Newly Acquired Evidence, 5/30/19). The trial
court denied Tenant’s petition and entered the order on the docket on June
21, 2019.
Tenant filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On appeal,
Wang presents the followings issues for our consideration:
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by Phila[.]Civ[.]R[.] 208.1[,] et seq[,] which is necessary to
enable the court to decide the issue presented.
Phila. Civ. R. 1002(f)(2)(i.)(a-c).
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(1) Did the trial court make an error of law by applying the
three-part test to Tenant’s [p]etition to [o]pen default
judgment without addressing overwhelming evidence
establishing lack of service, where[:] (1) the process
server’s second [a]ffidavit presented to the trial court
affirms that he posted the complaint on the street entrance
of a different building that is physically unconnected to
Tenant’s house, and (2) the record evidence show[s] that
all other eviction notices—the notice to quit, the notice of
default judgment and the writ of possession—were either
delivered to the same wrong building, or not deliverable as
addressed?
(2) Was the complaint posted at a nearby[,] but different[,]
address?
(3) Should the default judgment be stricken when the complaint
and the notice to quit bear an address that is different from
the address of the leased premises, and the [a]ffidavit of
[s]ervice fails to establish proper service pursuant to
Phila.M.C.R.Civ.P. 111(B)[,] by failing to specify where the
complaint was posted as required by Phila.M.C.R.Civ.P.
112(c)?
(4) In making its ruling, did the trial court rely on a municipal
court transcript that had a critical error?
(5) Did the trial court err in not granting any trial, hearing[,] or
fact-finding process[10] to Tenant when[:] (1) Tenant
explicitly requested such by seeking the issuance of a rule
returnable to show cause pursuant to Pa.R.C.P. 206.5(b),
where a local rule provides for issuance “as of course” as set
forth in Pa.R.C.P. 206.6[;] (2) Landlord’s answer raised
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10 Unlike appeals from final orders issued by the municipal court in connection
with money judgments and Landlord-Tenant orders which “shall be scheduled
for a hearing at the Arbitration Center,” see Phila.Civ.R. 1001(g)(1), appeals
filed pursuant to Rule 1001(a)(2) (final orders issued by municipal court in
connection with actions to enjoin nuisance) and Rule 1001(a)(3)
(supplementary orders granting or denying petition) “shall proceed as
motions” and are limited to determination by trial court as to whether
“Municipal Court committed an error of law or abused its discretion.”
Phila.Civ.R. 1001(g)(2).
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disputed issues of material fact[;] and (3) Pa.R.C.P.M.D.J.
1007(A)[11] provides that an appeal from the [m]unicipal
[c]ourt to the Court of Common Pleas shall be conducted de
novo?
Appellant’s Brief, at 7.
Municipal court “orders granting or denying a petition to open a default
judgment . . . are appealable to the Court of Common Pleas, but the appeal
is limited to a review of the record.” Phila.Civ.R. 1001(a)(3) (emphasis
added). The appeal is limited to a determination by the court of common
pleas as to whether the municipal court committed an error of law or abused
its discretion in ruling on the petition or motion which is the subject of the
appeal. Id. at (g)(2).
In order to open a default judgment, the moving party must satisfy the
following requirements: “(1) promptly file[] a petition to open the default
judgment, (2) provide[] a reasonable excuse or explanation for failing to file
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11 Tenant cites to Pa.R.C.P.M.D.J. 1007(A), a rule of civil procedure governing
actions and proceedings before Magisterial District Judges. The current
Landlord/Tenant action was commenced in Philadelphia Municipal Court, not
Magisterial District Court. See 42 Pa.C.S. § 1123(a)(3) (“[T]he Philadelphia
Municipal Court shall have jurisdiction of the following matters: Matters
arising under the act of April 6, 1951 (P.S.69, No.20), known as The Landlord
and Tenant Act of 1951.”). Thus, Rule 1007(A) is inapplicable to the instant
matter. In any event, as we have previously stated, an appeal from a
municipal court’s supplementary order denying a petition to open is limited to
a review of the record and is not de novo —a significant distinction. See
Phila.Civ.R. 1001(a)(3). See also Med. Shoppe v. Wayne Mem’l Hosp.,
866 A.2d 455 (Pa. Commw. 2005) (difference between de novo review and
appellate review significant; under de novo review reviewing tribunal conducts
independent fact-finding proceeding in which new evidence taken and all
issues determined anew and under appellate review, reviewing tribunal
examines record to determine whether lower tribunal’s findings reasonably
supported by substantial evidence).
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a responsive pleading, and (3) plead[] a meritorious defense to the allegations
contained in the complaint.” Myers v. Wells Fargo Bank, 986 A.2d 171,
175-76 (Pa. Super. 2009). A court cannot open a judgment unless the moving
party has established all three of the required criteria. Id. at 176. However,
where the party seeking to open a judgment asserts that service
was improper, a court must address this issue first before
considering any other factors. 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. In making this determination, a
court can consider facts not before it at the time the judgment
was entered.
Cintas Corp. v. Lee's Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa. 1997)
(citations omitted). See also Liquid Carbonic Corp. v. Cooper & Reese,
Inc., 416 A.2d 549, 551 (Pa. Super. 1979) (“Where . . . a defendant asserts
that he was never served with the complaint and therefore had no notice of
the proceedings against him, . . . a court must determine whether such
assertion is true before considering any other factors.”).
The basis of Tenant’s issues is rooted in his assertion that he was never
served with the complaint and related pleadings and notices in the instant
matter and was not aware of the underlying lawsuit until “the landlord/tenant
officer showed up . . . for lock-out.” N.T. Petition to Open Hearing, 5/3/19, at
10. Specifically, Tenant claims that he never received service of the: (1)
notice of breach letter addressed to 2619 South Street, Unit A, Philadelphia
PA; (2) complaint which was posted on the door at 2619 South Street, Unit A,
where he did not reside; (3) default judgment that was mailed to 2619 South
Street, Philadelphia; and (4) writ of possession that was posted on the door
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of 2619 South Street where he does not reside. Emergency Petition for
Reconsideration of Denial to Open Default Judgment, 5/17/19, at ¶¶ 5-6, 10-
11, 13-14. Thus, he claims that the municipal court lacked jurisdiction over
him to enter the default judgment. Cintas Corp., supra.
Service of process is a mechanism by which a court obtains jurisdiction
of a defendant, and therefore, the rules concerning service of process must
be strictly followed. Sharp v. Valley Forge Med. Ctr. and Heart Hosp.,
Inc., 221 A.2d 185 (Pa. 1966). Landlord/Tenant complaints for possession
may be served by posting the same upon the leased premises by an authorized
writ server and mailing a copy to the tenant by first class mail. See Phila.
M.C.R.Civ.P. 111(B). Without valid service, a court lacks personal jurisdiction
of a defendant and is powerless to enter judgment against him or her. U.K.
LaSalle, Inc. v. Lawless, 618 A.2d 447 (Pa. Super. 1992).
Before conducting a substantive review of Tenant’s issues, we must first
address Tenant’s attempt to enter additional evidence into the record to
support his argument that he was not served with the complaint. In ruling
upon a petition to open, a hearing court “can consider facts not before it at
the time judgment was entered.” Mother’s Rest, Inc. v. Krystkiewicz, 861
A.2d 327, 336 (Pa. Super. 2004). However, Tenant’s supplemental affidavits
and photographs of the Premises and Building were not submitted by Tenant
prior to or at the municipal court hearing on his petition to open. In fact, the
additional information was not presented to the court until May 30, 2019— 27
days after the municipal court’s petition to open hearing and ruling and
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approximately two weeks after Tenant filed his appeal and emergency petition
to reconsider in the Court of Common Pleas. Because the trial court’s review
is not de novo,12 but is limited to a review of the record on an appeal from
a municipal court’s order denying a petition to open a default judgment, see
Phila.Civ.R. 1001(a)(3), supra, the trial court was not permitted to consider
this supplemental information that was not of record at the time the court
ruled upon Tenant’s petition to open. Rather, the court properly confined
its review to the pleadings of record at the time the petition was ruled upon.
Cf. Mischenko v. Gowton, 453 A.2d 658 (Pa. Super. 1982) (where
deposition of appellee was made part of record more than six months prior to
court ruling on appellant’s petition to open default judgment, lower court erred
in concluding deposition irrelevant in deciding petition to open); Liquid
Carbonic Corp., supra (where appellant submitted petition to open or strike
default judgment on the basis of affidavits and depositions of appellant’s
officers and bookkeeper and deputy sheriff who purportedly served complaint
on appellant, lower court properly granted petition to open where additional
evidence showed appellant not served with complaint).
At the municipal court’s petition to open hearing, Susan Matteo, an
owner of two units in the Building and property manager for the Building,
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12 See supra n.8. Cf. Phila.Civ.R. 1001(a)(1) (final orders issued by
municipal court, in connection with Landlord/Tenant orders pursuant to 42
Pa.C.S. § 1123(a)(3), are appealable to Court of Common Pleas and
proceeding on appeal “shall be conducted de novo[.]”).
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testified that there is only one entrance to the Premises (i.e., Tenant’s unit
“A”) and that that entrance is at 543 South 27th Street. She also testified that
an alternate address for the Premises is 2619-25 South Street13 and that mail
for the Premises is delivered to 543 South 27th Street. N.T. Petition to Open
Hearing, 5/3/19, at 22-23. Additional testimony from the hearing established
that: 2619 South Street, #A, is the legal address to the Premises; 543 South
27th St. is the Premises’ mailing address; and there is no entrance to the
Premises at 2619 South Street. Id. at 13-14, 18-23, 27.
Instantly, Landlord attempted service of and actually posted the
complaint at “2619 South Street, #A, Ent. @ 543 South 27th Street.” Id. at
13. Tenant admitted that the correct address for notice/service purposes is
543 South 27th Street. Id. at 30. Every document posted or mailed to Tenant
included that address. Moreover, all mail sent to 2619 South Street #A is
delivered to 543 South 27th Street.
Accordingly, based on a review of the record, see Phila.Civ.R.
101(a)(3), the trial court neither abused its discretion nor committed an error
of law in denying Tenant’s petition for reconsideration of the municipal court’s
order denying Tenant’s petition to open the default judgment. Erie Ins. Co.,
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13 The address 2619 through 2625 South Street represents hyphenated-
ranged addresses where tax lot consolidations have occurred. See
https://www.phila.gov/it/PDF/City%20Addressing%20Standards.p
df (last visited 8/7/20). However, the only entrance to Tenant’s unit is at 543
South 27th Street. N.T. Petition to Open Hearing, 5/3/19, at 27. Moreover,
all mail for the Premises is sent to the South 27th Street address. Id. at 27-
28.
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supra. The court found that Tenant received service at 543 South 27th Street.
Thus, the municipal court had jurisdiction to enter a default judgment against
Tenant.14 Cintas Corp., supra; U.K. LaSalle, Inc., supra.
Order affirmed.15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
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14Moreover, even if we applied the substantive three-prong test for a petition
to open, we would still find that the court properly denied Tenant’s petition
where: (1) more than one month passed from the date the municipal court
entered the default judgment and the date that Tenant filed his petition to
open; (2) Tenant did not provide a reasonable explanation to failing to file an
answer to the complaint (when he concedes it was served to proper address);
and (3) Tenant failed to plead a meritorious defense to the allegations in the
complaint (in fact, admitting unapproved persons were living in the Premises).
Myers, supra, at n.3. See U.S. Bank Nat'l Ass'n for Pa. Hous. Fin.
Agency, 163 A.3d 1019 (Pa. Super. 2017) (petition to open will be denied if
petition fails to satisfy any prong of test).
15 We also note that this appeal may likely be moot where Tenant is no longer
in possession of the Premises and the term of the lease has expired. See
American Mut. Liability Ins. Co. v. Zion & Klein, P.A., 466 A.2d 679 (Pa.
Super. 1983) (appeal moot in landlord/tenant matter, where tenants sought
review of judgment in favor of landlord as to possession and damages; once
tenant vacated premises no controversy regarding claim of possession
exited); Wolf v. Long, 468 A.2d 508 (Pa. Super. 1983) (opinion per curiam)
(same). However, it is unclear from the record whether an automatic
supersedeas issued after Tenant appealed. See Phila.M.C.R.Civ.P. 1008
(Municipal Court Appeals as Supersedeas).
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