J-A13021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOUNG WILLIS

v.

TUNG LE 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1844 EDA 2021

Appeal from the Order Entered August 19, 2021

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 191000174

BEFORE: OLSON, J., DUBOW, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JULY 19, 2022

Appellant, Tung Le, appeals from the August 19, 2021 order denying 

Appellant’s petition to open or strike the default judgment entered against 

him, and in favor of Doung Willis (“Willis”), in the amount of $86,907.55. We 

affirm.

The trial court summarized the factual and procedural history as follows:

[Willis] initiated this action on October 7, 2019. In his complaint, 

[Willis] alleges that he hired [Appellant] to renovate and remodel 

two separate properties. [Willis] alleges that he paid [Appellant] 

$155,000[.00] in cash in exchange for services to be rendered by 

[Appellant. Willis] further alleges that he allowed [Appellant] to 

use [Willis's] credit card to purchase approved supplies. [Willis]

contends that, after a few weeks of work, [Appellant] stopped all 

work, left the [remodeling projects] incomplete, and failed to 

return any of the money. [Willis] was forced to pay another 

contractor to complete the remodeling projects.

On October 9, 2019, [Willis] filed an affidavit of service indicating 

that [Appellant] had been served at his home address [in] 

Philadelphia, [Pennsylvania. Appellant] did not file a responsive 

pleading. On[] November 4, 2019, [Willis] sent [Appellant] a 
J-A13021-22

- 2 -

notice of praecipe to enter judgment by default judgment. [The 

trial court] entered a default judgment against [Appellant] on 

November 18, 2019. On February 5, 2020, [Willis] filed a praecipe

to issue writ of execution.

[Appellant], through counsel, filed his petition to open the default 

judgment on June 2, 2021. On August 19, 2021, [the trial court]

held a hearing and oral argument on the petition. [Appellant] did 

not personally appear to testify at the hearing so the [trial court] 

instead only heard oral argument on the legal issues. At the oral 

argument, the [trial court] permitted [Appellant’s] counsel to 

amend the petition to include the argument that the default 

judgment, as an alternative to being opened, should be stricken. 

After [the trial court] heard oral argument, [it] denied 

[Appellant’s] petition to open [or] strike the default judgment.

Trial Court Opinion, 11/19/21, at 2-3 (extraneous capitalization omitted). This 

appeal followed.1

Appellant raises the following issue for our review: “Did the trial court 

abuse its discretion in failing to grant Appellant's petition to open [or] strike 

the default judgement [sic] where Appellant met the standards required to 

open [or] strike said judgment?” Appellant’s Brief at 1.2

Appellant’s issue raises two distinct challenges to the trial court’s order

that both denied Appellant’s petition to strike the default judgment and denied 

Appellant’s petition to open the default judgment. Oswald v. WB Pub. 

Square, 80 A.3d 790, 794 n.3 (Pa. Super. 2013) (stating, “[i]t is well-settled 

that a petition to strike a default judgment and a petition to open a default 

____________________________________________

1 Both Appellant and the trial court complied with Pa.R.A.P. 1925.

2 We note that Willis did not file an appellee’s brief.
J-A13021-22

- 3 -

judgment are two distinct remedies, which are generally not interchangeable” 

(original quotation marks, brackets, and citation omitted)).

An appeal regarding a petition to strike a default judgment 

implicates the Pennsylvania Rules of Civil Procedure. Issues 

regarding the operation of procedural rules of court present us 

with questions of law. Therefore, our standard of review is de 

novo and our scope of review is plenary.

Digital Communications Warehouse, Inc. v Allen Invs., LLC, 223 A.3d 

278, 284 (Pa. Super. 2019) (citations and quotation marks omitted).

Conversely,

a petition to open a default judgment is an appeal to the equitable 

powers of the [trial] court. The decision to grant or deny a petition 

to open a default judgment is within the sound discretion of the 

trial court, and we will not overturn that decision absent a 

manifest abuse of discretion or error of law. An abuse of discretion 

is not a mere error of judgment, but if in reaching a conclusion, 

the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias[,] or ill[-]will, as shown by the evidence or the record, 

discretion is abused.

Id. at 285 (citation, brackets, and ellipsis omitted). As such, we address each 

of Appellant’s challenges separately.

A petition to strike a judgment operates as a demurrer to the 

record, and must be granted whenever some fatal defect appears 

on the face of the record. When deciding if there are fatal defects 

on the face of the record for the purposes of a petition to strike a 

judgment, a [trial] court may only look at what was in the record 

when the judgment was entered. Importantly, a petition to strike 

is not a chance to review the merits of the allegations of a 

complaint. Rather, a petition to strike is aimed at defects that 

affect the validity of the judgment and that entitle the petitioner, 

as a matter of law, to relief. Importantly, a petition to strike does 

not involve the discretion of the trial court.
J-A13021-22

- 4 -

Oswald, 80 A.3d at 793-794 (citations, quotation marks, and original 

brackets omitted). In other words, “[t]he standard for ‘defects’ asks whether 

the procedures mandated by law for the taking of default judgment have been 

followed.” Roy v. Rue, 273 A.3d 1174, 1182 (Pa. Super. 2022) (citation 

omitted).

Instantly, Appellant asserts that fatal defects existed because: (1) the 

complaint was identified as an action-in-divorce, (2) Appellant was not served 

a copy of the complaint, and (3) the trial court docket does not reflect the 

date notice of the entry of default judgment was provided to Appellant 

pursuant to Pa.R.Civ.P. 236. Appellant’s Brief at 8-11.

Concerning Appellant’s assertion that an error in the caption of the 

complaint constituted a fatal defect appearing on the face of the record, 

Pennsylvania Rule of Civil Procedure 1018 states, in pertinent part, as follows:

Every pleading shall contain a caption setting forth the name of 

the court, the number of the action[,] and the name of the 

pleading. The caption of a complaint shall set forth the form of 

the action and the names of all the parties[.]

Pa.R.Civ.P. 1018. Although Rule 1018 provides, inter alia , that the form of 

an action shall be included in the caption of a complaint, the rule also includes 

the 1969 Order, which further states, “No action or proceeding may be 

dismissed by reason of an erroneous caption or docketing, but the [trial] court 

on motion of any party or on its own motion may correct the caption or direct 

appropriate docketing.” Id. at February 8, 1969 Order – Captioning and 
J-A13021-22

- 5 -

Docketing of Actions and Proceedings in Courts of Common Pleas, ¶f.3 

Paragraph f of the 1969 Order was not intended, however, “to save pleadings 

that are substantively inadequate.” Folmar, 332 A.2d at 823 n.2.

Here, the caption of Willis’s complaint incorrectly identified the matter 

as an “action-in-divorce.” A review of the contents of the complaint, however, 

demonstrates that the complaint complies with Rule 1019 by, inter alia,

identifying the complaint as a “civil action complaint” in its title and concisely 

and summarily setting forth causes of action for breach of contract and fraud.4 

____________________________________________

3 The 1969 Order was added to Rule 1018 “to [e]nsure easy amendment in 

cases of errors in captioning or docketing as a result of the changes in the 

structure of the courts of common pleas made by the 1968 amendment to the 

Pennsylvania Constitution.” Folmar v. Shaffer, 332 A.2d 821, 823 n.2 

(Pa. Super. 1974).

4 Pennsylvania Rule of Civil Procedure 1019, governing the contents of 

pleadings, states as follows:

Rule 1019. Contents of Pleadings. General and Specific 

Averments

(a) The material facts on which a cause of action or defense is 

based shall be stated in a concise and summary form.

(b) Averments of fraud or mistake shall be averred with 

particularity. Malice, intent, knowledge, and other conditions of 

mind may be averred generally.

(c) In pleading the performance or occurrence of conditions 

precedent, it is sufficient to aver generally that all conditions 

precedent have been performed or have occurred. A denial of 

such performance or occurrence shall be made specifically and 

with particularity.
J-A13021-22

- 6 -

The error in the caption of the complaint did not mislead or prejudice

Appellant, in part because Willis and Appellant, as parties unmarried to each 

other, could not have been involved in an action-for-divorce and, moreover,

because the complaint, upon its review, identified that it was a civil action and 

concisely and summarily set forth causes of action for breach of contract and 

____________________________________________

(d) In pleading an official document or official act, it is sufficient 

to identify it by reference and aver that the document was issued 

or the act done in compliance with law.

(e) In pleading a judgment, order[,] or decision of a domestic or 

foreign court, judicial or administrative tribunal, or board, 

commission or officer, it is sufficient to aver the judgment, 

order[,] or decision without setting forth matter showing 

jurisdiction to render it.

(f) Averments of time, place[,] and items of special damage shall 

be specifically stated.

(g) Any part of a pleading may be incorporated by reference in 

another part of the same pleading or in another pleading in the 

same action. A party may incorporate by reference any matter of 

record in any State or Federal court of record whose records are 

within the county in which the action is pending, or any matter 

which is recorded or transcribed verbatim in the office of the 

prothonotary, clerk of any court of record, recorder of deeds[,] or 

register of wills of such county.

(h) When any claim or defense is based upon an agreement, the 

pleading shall state specifically if the agreement is oral or written.

(i) When any claim or defense is based upon a writing, the pleader 

shall attach a copy of the writing, or the material part thereof, but 

if the writing or copy is not accessible to the pleader, it is sufficient 

so to state, together with the reason, and to set forth the 

substance in writing.

Pa.R.Civ.P. 1019(a-i).
J-A13021-22

- 7 -

fraud. Therefore, we concur with the trial court that Appellant’s assertion that 

the complaint caption constituted a fatal defect on the face of the record is 

without merit.

Next Appellant asserts that he was not served a copy of the complaint. 

Appellant’s Brief at 8-9. Pennsylvania Rule of Civil Procedure 402 states, in 

pertinent part, that original process may be served

(1) by handing a copy to the defendant; or

(2) by handing a copy

(i) at the residence of the defendant to an adult member of 

the family with whom he resides; but if no adult member of 

the family is found, then to an adult person in charge of such 

residence; or

(ii) at the residence of the defendant to the clerk or manager 

of the hotel, inn, apartment house, boarding house[,] or 

other place of lodging at which he resides; or

(iii) at any office or usual place of business of the defendant 

to his agent or to the person for the time being in charge 

thereof.

Pa.R.Civ.P. 402(a).5 Pennsylvania Rule of Civil Procedure 405, governing 

return of service, states, in pertinent part, as follows:

(a) When service of original process has been made[,] the sheriff 

or other person making service shall make a return of service 

forthwith. If service has not been made and the writ has not been 

____________________________________________

5 Willis initiated his complaint in the Court of Common Pleas of Philadelphia 

County, which comprises the First Judicial District with the Commonwealth of 

Pennsylvania. As such, original process may be served by a sheriff of that 

county or a competent adult. Pa.R.Civ.P. 400.1(a)(1) (stating, “[i]n an action 

commenced in the First Judicial District, original process may be served [] 

within the county by the sheriff or a competent adult”).
J-A13021-22

- 8 -

reissued or the complaint reinstated, a return of no service shall 

be made upon the expiration of the period allowed for service.

(b) A return of service shall set forth the date, time, place[,] and 

manner of service, the identity of the person served[,] and any 

other facts necessary for the court to determine whether proper 

service has been made.

Pa.R.Civ.P. 405(a) and (b).

Here, the affidavit of service states that the complaint was served on 

Appellant at his home address in Philadelphia on October 9, 2019, at 

11:09 a.m. Affidavit of Service, 10/9/19. The “additional comments” section

of the affidavit states, “Successful Attempt: Oct[.] 9, 2019, 11:09 [a.m.

Eastern Daylight Time] at Home[] received by [Appellant]. Age: 21; Ethnicity:

Asian[-]American; Gender: Male; Weight: 140; Height: 5'7"; Hair: Black;

Personal Service[.]” Id. The affidavit of service sets forth the date, time, and 

place of service, states that service was by personal delivery, and names 

Appellant as the person served, as well as identifies him by age, ethnicity, 

gender, weight, height, and hair color.6 Therefore, we concur with the trial 

court that no defect appears in the face of the record pertaining to service of 

____________________________________________

6 To the extent that Appellant contends he is “an Asian male approximately 

five [] feet and one-half [] inches tall and weighs approximately 140 

pounds who resides alone during the week at [his residence] and would be at 

work on [] Tuesday, [October 9, 2019,] at approximately 11:09 a.m.,” the 

trial court was unable to consider this argument in the context of a petition to 

strike the default judgment because such evidence was outside the certified 

record. Roy, 273 A.3d at 1183 n.7; see also Appellant’s Brief at 8-9 

(emphasis added). Moreover, we note that October 9, 2019, was, in fact, a 

Wednesday and not a Tuesday.
J-A13021-22

- 9 -

the complaint on Appellant in accordance with the Pennsylvania Rules of Civil 

Procedure. See Roy, 273 A.3d at 1183.

Finally, Appellant asserts that the trial court docket does not reflect the 

date on which notice of the entry of default judgment was provided to 

Appellant pursuant to Pa.R.Civ.P. 236. Appellant’s Brief at 9-11.

Rule 236 states as follows:

Rule 236. Notice by Prothonotary of Entry of Order or 

Judgment

(a) The prothonotary shall immediately give written notice of the 

entry of

(1) a judgment entered by confession to the defendant by 

ordinary mail together with a copy of all documents filed with the 

prothonotary in support of the confession of judgment. The 

plaintiff shall provide the prothonotary with the required notice 

and documents for mailing and a properly stamped and addressed 

envelope; and

(2) any other order or judgment to each party's attorney of record 

or, if unrepresented, to each party. The notice shall include a copy 

of the order or judgment.

(b) The prothonotary shall note in the docket the giving of the 

notice and, when a judgment by confession is entered, the mailing 

of the required notice and documents.

(c) Failure to give the notice or when a judgment by confession is 

entered to mail the required documents, or both, shall not affect 

the lien of the judgment.

(d) The prothonotary may give the notice required by subdivision 

(a) or notice of other matters by facsimile transmission or other 

electronic means if the party to whom the notice is to be given or 

the party's attorney has filed a written request for such method of 

notification or has included a facsimile or other electronic address 

on a prior legal paper filed in the action.

Pa.R.Civ.P. 236. Pursuant to Rule 236(b), 
J-A13021-22

- 10 -

[t]he prothonotary must specifically note on the docket the date 

that Rule 236 notice was given to the appropriate parties. This 

procedural requirement serves to promote clarity, certainty[,]

and ease of determination, so that an appellate court will 

immediately know whether [default judgment] was [entered] in a 

timely manner, thus eliminating the need for a case-by-case 

factual determination.

Carr v. Michuck, 234 A.3d 797, 805 (Pa. Super. 2020) (citation, original 

brackets, and quotation marks omitted) (providing, by way of example, that 

a prothonotary may satisfy the requirements of Rule 236(b) by stating on the

docket “‘Rule 236 notice provided on’ followed by the date the notice was 

given”); see also Smithson v. Columbia Gas of PA/NiSource, 264 A.3d 

755, 759-760 (Pa. Super. 2021).

Here, the portion of the trial court docket pertaining to the entry of 

default judgment against Appellant states as follows:

Praecipe for entry of default judgment filed. Judgment in favor of 

[Willis] and against [Appellant] for failure to file answer within 

required time. Pro-prothonotary. Notice under Rule 236 

given. Notice under [Pa.R.Civ.P.] 237.1 given. Affidavit of 

non-military service filed. Damages assessed: $86,907.55[.] 

Entry of appearance filed on behalf of [Willis].

Trial Court Docket, at 11/18/19 Entry (emphasis added). The docket entry 

was entered by the protonotary’s office on November 18, 2019, at 11:27 a.m. 

and approved on November 19, 2019, at 11:17 a.m. We concur with the trial 

court that this docket entry satisfies, at a minimum, the requirements of Rule 
J-A13021-22

- 11 -

236(b).7 Therefore, Appellant’s assertion that he did not receive notice of the 

default judgment pursuant to Rule 236 is without merit.

For the reasons stated herein, we discern no fatal defects in the face of 

the record that would compel the trial court to grant Appellant’s petition to 

strike the default judgment. Consequently, Appellant’s challenge to the trial 

court’s order denying his petition to strike the default judgment is without 

merit.

We now consider Appellant’s challenge to the trial court’s order that 

denied his petition to open the default judgment. Here, Appellant asserts that 

the trial court abused it discretion when it found that Appellant “did not 

promptly file his petition to open the default judgment or provide a reasonable 

excuse or explanation for failing to respond to the complaint.” Appellant’s 

Brief at 11. Appellant argues that because notice of the default judgment was 

not properly given pursuant to Rule 236, his petition to open the default 

judgment was filed promptly. Id. at 12.

____________________________________________

7 The docket entry contains the word “pro-prothonotary” followed by a series 

of actions. The introductory term “pro-” derives from Latin and means, inter 

alia, “on behalf of.” Thus, the phrase “pro-prothonotary” means “on behalf of 

the prothonotary.” It may be inferred that the series of actions that follow 

the word “pro-prothonotary,” , which includes “Notice under Rule 236 given,” 

were actions taken on behalf of the prothonotary and noted on the trial court 

docket. Although each action does not specifically state the date upon which 

it was taken, as suggested by this Court in Carr, supra, it may be further 

inferred that these actions were completed as of the date of the docket entry. 

Therefore, in the case sub judice, the docket entry identifies that Rule 236 

notice was provided on November 18, 2019.
J-A13021-22

- 12 -

To reiterate, we review an order denying a petition to open a default 

judgment for an abuse of discretion. Digital Communications, 223 A.3d at 

285. Unlike a petition to strike a default judgment in which the trial court is 

limited to a review of the certified record, “[w]hen considering a petition to 

open a judgment, matters dehors the record filed by the party in whose favor 

the warrant is given, i.e., testimony, depositions, admissions, and other 

evidence, may be considered by the court.” Roy, 273 A.3d at 1187 (citation 

and original quotation marks omitted).

Pennsylvania Rule of Civil Procedure 237.3(b)(2) states that if a petition 

to open a default judgment is filed within ten days after the entry of a default 

judgment on the docket, then “the [trial] court shall open the judgment if . . . 

the proposed answer [(attached to the petition to open the default judgment)] 

states a meritorious defense.” Pa.R.Civ.P. 237.3(b)(2). In instances where 

the petition to open the default judgment is filed beyond the ten-day period 

set forth in Rule 237.3(b), “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.” Roy, 273 A.3d at 1187 (citation omitted); see also U.S. 

Bank Nat’l Ass’n for Pennsylvania Hous. Fin. Agency v. Watters, 163 

A.3d 1019, 1028 (Pa. Super. 2017), appeal denied, 170 A.3d 973 (Pa. 2017). 

“If a petition to open a default judgment fails to fulfill any one prong of this 
J-A13021-22

- 13 -

test, then the petition must be denied.” Watters, 163 A.3d at 1028.8 Given 

the equitable nature of the action, however, the trial court must give 

consideration to all three prongs of the tripartite test provided “some showing 

has been made with regard to each part of the test” by the petitioner. 

Provident Credit Corp. v. Young, 446 A.2d 257, 264 (Pa. Super. 1982).

Without question, in many cases where we have found that one 

of the three requirements for opening a judgment was not met we 

have stopped without considering the arguments made with 

regard to the other two [requirements]. It is difficult, however, 

to reconcile this approach with the many other cases that 

emphasize the equitable nature of the decision whether to grant 

a petition to open [a default judgment], and the importance of 

balancing the prejudice to the sides. The question is, Can a [trial] 

court make an “equitable determination” of what is “reasonable 

under the circumstances” without considering all of the 

circumstances of the particular case? We think not[.] Where 

some showing has been made with regard to each part of the test, 

a [trial] court should not blinder itself and examine each part as 

though it were a water-tight compartment, to be evaluated in 

isolation from other aspects of the case. Instead, the [trial] court 

should consider each part in the light of all of the circumstances 

and equities of the case. Only in that way can a chancellor act as 

a court of conscience.

Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1209 (Pa. Super. 1993) 

(original brackets and ellipsis omitted); see also Miller Block Co. v. U.S. 

____________________________________________

8 Before undergoing a review of whether a petitioner is entitled to an order 

opening a default judgment pursuant to Rule 237.3, or upon satisfaction of 

the tripartite test, “where the [petitioner] asserts that service was improper, 

a [trial] court must address this issue before considering other factors.” 

Digital Communications, 223 A.3d at 288. Here, the trial court considered 

Appellant’s assertion that he was not provided with service of Willis’s 

complaint and properly rejected this argument, as discussed supra.
J-A13021-22

- 14 -

Nat’l Bank in Johnstown, 567 A.2d 695, 700 (Pa. Super. 1989) (holding 

that, a trial court’s refusal to open a default judgment constitutes an abuse of 

discretion when the trial court fails to consider all prongs of the tripartite test 

and evaluate the equities involved in each of the three prongs), appeal denied, 

582 A.2d 324 (Pa. 1990).

With regard to the first prong, whether the petition to open was 

timely filed, this Court has held the following:

The timeliness of a petition to open a judgment is measured 

from the date that notice of the entry of the default 

judgment is received. The law does not establish a specific 

time period within which a petition to open a judgment must 

be filed to qualify as timely. Instead, the [trial] court must 

consider the length of time between discovery of the entry 

of the default judgment and the reason for delay.

In cases where the appellate courts have found a “prompt” 

and timely filing of the petition to open a default judgment, 

the period of delay has normally been less than one month. 

See Duckson[,] 620 A.2d [at 1209] ([holding,] one day

[after default is taken] is timely); [see also] Alba v. 

Urology [Assocs.] of Kingston, [] 598 A.2d 57[, 58]

([Pa. Super.] 1991) ([holding,] fourteen days [after 

judgment was entered] is timely); Fink v. [Gen.] Accident 

Ins. Co., [] 594 A.2d 345[, 346] ([Pa. Super.] 1991) 

([holding,] five days [after default judgment was entered]

is timely).

Myers [v. Wells Fargo Bank, N.A.], 986 A.2d [171,] 176

[(Pa. Super 2006)]. See [also] Allegheny Hydro No. 1 v. 

[Am.] Line Builders, Inc., 722 A.2d 189, 193-[1]94 (Pa. Super. 

1998) (holding[,] a 41-day delay in filing a petition to open a 

default judgment [after default judgment has been entered] was 

untimely; collecting and setting forth cases holding delays in filing 

a petition to open a default judgment of 21 days and 37 days 

rendered those petitions untimely).

Roy, 273 A.3d at 1189 (ellipsis and original brackets omitted).
J-A13021-22

- 15 -

Here, the trial court noted that “[t]ypically a petition [to open a default 

judgment] is considered to be prompt[ly filed] if it is filed within [one] month 

of the entry of a default judgment” but observed that Appellant “filed his 

petition [to open the default judgment] approximately 18 months after the 

entry of default judgment on the docket.” Trial Court Opinion, 11/19/21, at 

6. In denying Appellant’s petition to open the default judgment, the trial court 

explained,

[Appellant] filed his petition well outside of a month, without any 

explanation or presentation of compelling circumstances 

attempting to justify the late filing. [Appellant,] through counsel, 

simply argued that he filed the petition promptly after learning of 

the default judgment. [The trial court] did not accept this 

argument as a basis to accept the petition as promptly filed. [The 

trial court] previously concluded that [Willis] properly served 

[Appellant,] meaning the default judgment has been properly sent 

to [Appellant.] Thus, because [Appellant] filed his petition [to 

open the default judgment] approximately 18 months after the 

entry of the default judgment, [the petition was] properly 

denied[.]

Id. at 7. In a footnote, the trial court further stated,

[The trial court] also notes that [Appellant] did not provide a 

reasonable excuse or explanation for the delay. In [the trial 

court’s] view, discussion of this second prong is unnecessary as 

[Appellant’s] petition was not promptly filed. A party must satisfy 

all three prongs in order for a [trial] court to open a default 

judgment. In the absence of a promptly filed petition, it is 

immaterial whether [Appellant] has a reasonable excuse 

[and] a meritorious defense.

Id. at 7 n.1 (emphasis added).

As discussed supra, Willis filed a complaint against Appellant on October 

7, 2019, and Appellant was properly served with the complaint on October 9, 
J-A13021-22

- 16 -

2019. Because Appellant failed to file a responsive pleading, a default 

judgment in the amount of $86,907.55 was entered against Appellant on 

November 18, 2019. Appellant was provided with notice of the entry of a

default judgment in accordance with Rule 236 on November 18, 2019.

9

 On 

June 2, 2021, more than 18 months after notice of the entry of the default 

judgment was provided, Appellant filed a petition to open the default 

judgment. In his petition to open the default judgment, Appellant asserted

that, inter alia, he was not served with a copy or the complaint or provided 

notice of the entry of default judgment. Petition to Open Default Judgment, 

6/2/21, at ¶¶4, 11; see also N.T., 8/19/21, at 3-4. Appellant contended that 

he learned of the entry of a default judgment against him on May 27, 2021.10 

Petition to Open Default Judgment, 6/2/21, at ¶12. Appellant conceded that 

the petition to open the default judgment was filed outside of the 10-day 

period after entry of the default judgment, but that the petition was timely 

____________________________________________

9 At the hearing on the petition to open the default judgment, counsel for 

Appellant argued that Appellant did not receive notice of the entry of the 

default judgment because of delays in the delivery of mail by the United States 

Postal Service stemming from the effects of the COVID-19 global pandemic. 

N.T., 8/19/21, at 9-10. We note that service of notice pursuant to Rule 236 

occurred in November 2019, prior to the onset of a plethora of issues brought 

on by the COVID-19 global pandemic in 2020, and continuing, that affected, 

inter alia, the Pennsylvania judicial system and the United States Postal 

Service.

10 At the August 19, 2021 hearing on Appellant’s petition to open the default 

judgment, counsel for Appellant asserted that Appellant learned of the default 

judgment when a title search was conducted as part of a sales transaction 

involving Appellant’s property. N.T., 8/19/21, at 3.
J-A13021-22

- 17 -

filed “within ten[ ]days of learning about the [d]efault [j]udgment.” Id. at 

¶17. Appellant further asserted that his answer attached to the petition raises 

a meritorious defense in that Willis’s “complaint alleges that [Willis and 

Appellant] entered into a contract/agreement [in] August 2018[, and the] 

complaint does not include a [copy of the] written contract/agreement [as an 

attachment].” Id. at ¶14-15.

Appellant filed his petition to open the default judgment more than 18

months after receiving notice of the entry of a default judgment against him

pursuant to Rule 236. Appellant offered that his delay in filing the petition to 

open the default judgment occurred because he did not receive notice of entry 

of a default judgment pursuant to Rule 236, which the trial court properly 

rejected, as discussed supra. Appellant also argued that he only learned of 

the entry of default judgment on May 27, 2021. Having found that Appellant 

received notice of the entry of a default judgment in accordance with Rule 

236, the trial court then found that Appellant’s petition to open the default 

judgment was not filed promptly but, rather, untimely filed more than 18 

months after the notice of entry of the default judgment was provided. Prior 

to reaching its conclusion that the petition was not filed promptly, however,

the trial court failed to consider the remaining two prongs of the tripartite test 

to discern whether equity required a finding that the petition was filed 
J-A13021-22

- 18 -

promptly.

11 Atlantic Credit and Fin., Inc. v. Giuliana, 829 A.2d 340, 343 

(Pa. Super. 2003) (stating, “[i]n considering petitions to open default 

judgments, a court must determine whether there are equitable 

considerations which require that a defendant, against whom a default 

judgment has been entered, receive an opportunity to have the case decided 

on the merits”), appeal denied, 843 A.2d 1236 (Pa. 2004).

The trial court based its conclusion that Appellant’s petition was not filed 

promptly upon a calculation of days between the Rule 236 notice of default 

judgment and the filing of the petition to open the default judgment. While 

an 18-month delay supports the trial court’s finding that the petition was not 

filed promptly, the trial court did not first consider the two remaining prongs 

of the tripartite test to determine whether equity required a different 

conclusion. See Provident Credit, 446 A.2d at 264; see also Direct Capital 

Corp. v. Claypoole, 2022 WL 353652, at *4-*6 (Pa. Super. 2022) 

(unpublished memorandum) (analyzing all prongs of the tripartite test in 

affirming the order denying the petition to open default judgment). Despite 

this short-coming in analysis, however, our review of the record demonstrates 

____________________________________________

11 Because the “promptness” prong of the tripartite test is determined on a 

case-by-case basis and is subject to the equitable discretion of the trial court, 

the trial court sitting in equity must consider whether the petition satisfied 

either of the two remaining prongs of the tripartite test to evaluate whether 

the strength of the meritorious defense or the reasonableness of the excuse 

or explanation warranted, in good conscious, a finding that the petition to 

open the default judgment was filed promptly in the interest of equity. 

Duckson, 620 A.2d at 1209; see also Provident Credit, 446 A.2d at 264.
J-A13021-22

- 19 -

that the trial court did not abuse its discretion or err as a matter of law in 

denying Appellant’s petition to open the default judgment.12

____________________________________________

12 By way of a “reasonable excuse or explanation” as to why he failed to file 

an answer to the complaint, Appellant asserted that he was not served a copy 

of the complaint. The trial court rejected this argument, as discussed supra, 

and found that Appellant was served with a copy of the complaint. Moreover, 

the trial court summarily stated that Appellant “did not provide a reasonable 

excuse or explanation for the delay.” Trial Court Opinion, 11/19/21, at 7 n.1. 

Therefore, Appellant failed to satisfy the second prong of the tripartite test. 

See Myers, 986 A.2d at 176 (stating that, “whether an excuse is legitimate 

is not easily answered and depends upon the specific circumstances of the 

case” (brackets omitted)).

Appellant argued that the failure to attach a copy of the agreement between 

the parties to the complaint constituted a meritorious defense, i.e., allegations 

of fact that, if proven at trial, would entitle Appellant to relief. When a cause 

of action is based upon an agreement, as was averred by Willis in the

complaint, Rule 1019 requires Willis to specifically state whether the 

agreement was written or oral and, if written, to attach a copy of the 

agreement to the complaint or state why such copy is not available. 

Pa.R.Civ.P. 1019(h) and (i). While it may be inferred that the agreement 

between the parties was in written form based on Appellant’s assertion that 

Willis’s failure to attach a copy to the complaint constituted a meritorious 

defense, Appellant averred in his proposed answer attached to the petition to 

open the default judgment that the agreement was, in fact, an oral 

agreement. See Petition to Open Default Judgment, 6/2/21, at Exhibit D 

(Answer to Complaint with New Matter) (stating, Appellant “agreed to work 

for [Willis] at two properties without a specific estimate [or] price being 

determined prior to the oral agreement being entered between the 

parties” (emphasis added)); see also Penn-Delco Sch. Dist. v. Bell 

Atlantic-PA, Inc., 745 A.2d 14, 19 (Pa. Super. 1999) (stating, the petitioner 

“does not have to prove every element of [his or her] defense, however, [the 

petitioner] must set forth a defense in precise, specific[,] and clear terms” 

(original brackets omitted)). If Appellant’s allegations of an oral agreement 

were proven to be true at trial, Willis’s only failure to comply with Rule 1019 

would be that he failed to identify the agreement as an “oral agreement” in 

the complaint. Appellant conceded in his proposed answer that an agreement 

existed between the parties. The failure to identify in the complaint that the 

agreement was an oral agreement, while not condoned, does not give rise to 
J-A13021-22

- 20 -

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2022

____________________________________________

a meritorious defense that, if proven at trial, would entitle Appellant to relief. 

Moreover, Willis’s complaint asserted a cause of action for fraud, to which 

Appellant offered no defense. Therefore, Appellant failed to satisfy the third 

prong of the tripartite test.

As such, consideration of the second and third prongs of the tripartite test 

would not have “tipped the equitable scales of justice” towards a finding that 

the petition to open the default judgment was filed promptly.