J-A19009-14

* Former Justice specially assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

ELISEO-THL MOTORSPORTS, LLC, A 

PENNSYLVANIA LIMITED LIABILITY 

COMPANY, 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 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,

denying Appellants’ petition to open default judgment. We affirm.
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On May 15, 2013, Eliseo-THL Motorsports, LLC (hereinafter “THL 

Motorsports”) filed a complaint against Appellants which raised various 

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 THL Motorsports’ Praecipe

to Enter Default Judgment, 6/26/13, at Exhibit “A.”

On June 26, 2013 – after Appellants had still failed to file a responsive

pleading to the complaint – THL Motorsports filed, in the Allegheny County 

Department of Court Records (hereinafter “ACDCR”), a 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 entry of judgment and the ACDCR “note[d] in the docket the giving of 

[the] notice[s],” in accordance with Pennsylvania Rule of Civil Procedure 

236(b). See Docket Entry, 6/26/13; see also THL Motorsports’ 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 

Motorsports’ claims. Therefore, Appellants declared, they have a complete 

defense to THL Motorsports’ claims. Appellants’ Petition to Open, 6/28/13, 

at 1-4. Further, within the body of the petition to open, Appellants wrote 

that they “have prepared preliminary objections in the nature of a demurer 

and intend to file the preliminary objections when the judge within [the 

Commerce and Complex Litigation Center of the Allegheny County Court of 

Common Pleas] is assigned” the case. 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. 

237.3(a) (“A petition for relief from a judgment . . . of default . . . shall have 

attached thereto a verified copy of . . . the answer which the petitioner 

seeks leave to file.”) Instead, Appellants attached to the petition a “motion 

to assign [the] case to the commerce and complex litigation center.” 

Appellants’ petition to open also contained a number of other 

irregularities. These included: 1) Appellants did not verify the petition to 

open, see Pa.R.C.P. 206.3 (“A petition . . . containing an allegation of fact 

which does not appear of record shall be verified”) and 2) even if Appellants 

had attached their proposed preliminary objections to the petition to open 

(which they did not), Appellants did not even attempt to provide an 

“adequate explanation of the cause of the delay in answering the 
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[c]omplaint,” see Pa.R.C.P. 237.3 note (“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[, 477 A.2d 471 (Pa. 1984)]”); 

Schultz, 477 A.2d at 472 (“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 can be excused”) (emphasis in original).

On July 5, 2013, the case was provisionally assigned to the Commerce 

and Complex Litigation Center of the Allegheny County Court of Common 

Pleas and, on July 12, 2013, Appellants filed “preliminary objections” to THL 

Motorsports’ complaint. Within the alleged preliminary objections, 

Appellants attempted to raise a number of grounds for relief, including that 

THL Motorsports’ claims were barred by the doctrines of res judicata and 

collateral estoppel and that the entire case was barred by the doctrine of lis 

pendens. Appellants’ Preliminary Objections, 7/12/13, at 1-15.

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. Appellants’ Answer, 8/20/13, at 
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2. Appellants also claimed that the defects in Appellants’ petition to open 

required that the petition be denied. Id. at 5. 

The trial court held oral argument on the petition and, on October 21, 

2013, the trial court entered an order denying Appellants’ petition to open. 

Within the trial court’s opinion, the trial court noted that it was required to 

deny Appellants’ petition 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, 

Appellants did not assert “an adequate justification for the failure to file a 

timely responsive pleading to the [c]omplaint.” Trial Court Opinion, 1/6/14, 

at 1-3. 

Appellants filed a timely notice of appeal and now raise the following 

claims to this Court: 

[1.] Did the trial court err in denying [] Appellants’ petition 

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 

[Appellants’] petition to open default judgment as a nullity 

with respect to affirmative pleading obligations? 

[3.] Did the trial court err, as a matter of law, in considering 

[THL Motorsports’] 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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Appellants’ Brief at 7 (some internal capitalization omitted).1

Appellants’ claims are interrelated. Therefore, we will consider 

Appellant’s claims together. However, the claims fail.

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 can be excused.” Schultz, 477 A.2d 

at 472 (emphasis in original). 

Pennsylvania Rule of Civil Procedure 237.3, entitled “Relief from 

Judgment of Non Pros or by Default,” was adopted after our Supreme 

Court’s opinion in 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. 

However, as the note to Rule 237.3 makes clear, “Rule 237.3 does not 

change the law of opening judgments;” rather, the three required elements, 

____________________________________________ 

1

 For ease of discussion, we have re-numbered Appellants’ claims on appeal.
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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

the rule “supplies 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 legitimate excuse for the 

inactivity or delay resulting in the entry of the judgment.” 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 

a “verified copy of the . . . answer which the petitioner seeks leave to file.” 

Pa.R.C.P. 237.3(a) (emphasis added). The note to the rule specifically 

declares: “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 

benefit of Rule 237.3 and the rule thus does not “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 rule also requires that the “the petition [be] filed within ten days after 

the entry of the judgment on the docket.” Pa.R.C.P. 237.3(b).
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legitimate excuse for the inactivity or delay resulting in the entry of the 

judgment.” Pa.R.C.P. 237.3 note. Instead, where 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 – that: “the petition has 

been promptly filed” and “the failure to appear can be excused.” 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 

preliminary objections must show “a meritorious defense” to the complaint.

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 “to assign [the] case to the commerce and 

complex litigation center.” Since a motion is not a pleading, the trial court 

was thus required to immediately deny Appellants’ petition to open, as 

Appellants simply did not attach any proposed pleading which could have 

shown “a meritorious defense” to THL Motorsports’ complaint. Therefore, on 

this basis alone, Appellants’ entire appeal necessarily fails.

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 

legal effect, the trial court was required to have first granted Appellants’ 

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 

required to deny Appellants’ petition since Appellants did not even attempt 

to plead the necessary element of “adequate explanation of the cause of the 

delay in answering the [c]omplaint.” 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 

plead “an adequate explanation of the cause of the delay in answering the 

[c]omplaint” in their petition to open, the trial court would have still been 

required to deny Appellants’ petition. Certainly, as was explained above, 

Appellants did not verify their petition to open; and, in the absence of a 

verification, any attempt to plead the necessary factual and outside-therecord element of “adequate explanation of the cause of the delay in 

answering the [c]omplaint” would have been a nullity. See Pa.R.C.P. 206.3 

(“[a] petition or an answer containing an allegation of fact which does not 

appear of record shall be verified). 

The trial court properly denied Appellants’ petition to open the default 

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