J-S30001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WESLEY MARTINEZ

v.

KENYA NAHEENA LINDSAY AND 

MYNISHIA N. HAMMOND

APPEAL OF: KENYA NAHEENA 

LINDSAY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3307 EDA 2018

Appeal from the Order Entered October 31, 2018

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): May Term, 2017 No. 002044

WESLEY MARTINEZ

v.

KENYA NAHEENA LINDSAY AND 

MYNISHIA N. HAMMOND 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3528 EDA 2018

Appeal from the Order Entered November 9, 2018

In the Court of Common Pleas of Philadelphia County 

Civil Division at No(s): May Term, 2017 No. 002044

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 04, 2019

Appellant, Kenya Lindsay, appeals from the trial court’s denial of her pro 

se and counseled motions to open the default judgment entered against her. 

After careful review, we conclude that the trial court did not abuse its 

discretion and therefore affirm.
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Appellee, Wesley Martinez, claimed that he was driving his motorized 

scooter when a car driven by Appellant struck him.

1 Appellee served his 

complaint by posting it at Appellant’s last two known addresses after the trial 

court granted permission for alternate service. Appellant did not file a timely 

response to Appellee’s complaint; accordingly, Appellee entered default 

judgment against Appellant. 

Approximately ten months later, after an arbitration award was entered 

against her, Appellant filed a pro se petition to open the default judgment.

She filed a second, counseled petition to open two months later. In both 

petitions, she argued that she did not have notice of Appellee’s complaint, did 

not understand the legal ramifications of the complaint when she did receive 

it, and had promptly filed her petition to open after learning of the default 

judgment. 

After a rule to show cause hearing, the trial court found that the record 

established Appellant had notice of the default judgment at least four months 

before she filed her first petition to open. On October 31, 2018, the trial court 

denied the pro se petition to open default judgment. On November 9, 2018, 

the court denied the counseled petition. This timely appeal followed. 2

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1 Mynishia Hammond, also listed as a defendant in the complaint, was also 

allegedly in the car at the time of the accident. Appellee dismissed his claim 

against Hammond by stipulation.

2 The trial court did not order Appellant to file a concise statement of errors 

complained of on appeal. See Pa.R.A.P. 1925(b). It issued its opinion on 

December 13, 2018. See Pa.R.A.P. 1925(a). 
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Appellant raises two questions on appeal:

1. Whether the trial court erred or abused its discretion in denying 

[Appellant’s] petitions to open default judgment where she 

asserted a meritorious defense, provided a reasonable 

explanation for her failure to respond and equitable 

circumstances exist such that default may be opened 

regardless of the time that may have elapsed between entry of 

the judgment and filing of the petition to open?

2. Whether the trial court erred or abused its discretion in denying 

[Appellant’s] counseled petition to open default judgment as 

procedurally defective under Pa.R.C.P. 206.1(b) where this 

Rule was not raised in opposition to the petition and where such 

a ruling effectively denied an indigent defendant the benefits 

of pro bono counsel?

Appellant’s Brief, at 2-3.

In her first issue, Appellant claims that the trial court abused its 

discretion when it did not grant her petitions to open default judgment. 

Specifically, she contends that she asserted a meritorious defense to the 

action—she was not at the accident; and a reasonable explanation for not 

responding—she did not know why she received the filings because she was 

not involved. She argues that the court should excuse her failure to timely 

petition to open the judgment because she was pro se and did not understand 

why she was receiving the filings. Therefore, she claims that the court abused 

its discretion in not opening the default judgment. See Appellant’s Brief, at 

10-15. We disagree.

Our standard of review for a petition to open default judgment is well 

settled.

A petition to open a default judgment is an appeal to 

the equitable powers of the court, and absent an error 
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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.

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. 

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

was timely filed, we note:

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 court must consider the length of time 

between discovery of the entry of the default 

judgment and the reason for delay.

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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.

Kelly v. Siuma, 34 A.3d 86, 91-92 (Pa. Super. 2011) (citations omitted).

With respect to the second prong, this court has held that: “whether an 

excuse is legitimate is not easily answered and depends upon the specific 

circumstances of the case. The appellate courts have usually addressed the 

question of legitimate excuse in the context of an excuse for failure to respond 

to the original complaint in a timely fashion.” Myers v. Wells Fargo Bank, 
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Nat’l Ass’n, 986 A.2d 171, 176 (Pa. Super. 2009) (citation and brackets 

omitted).

Appellant argues that the confluence of non-traditional service and her 

pro se status justify her delayed filings. In contrast, the trial court noted that 

nine months elapsed between Appellant receiving notice of the entry of default 

and the filing of her first petition to open. See Trial Court Opinion, 12/13/18, 

at 3. Further, the court found that Appellant had actual notice of the default 

judgment no later than the date she filed an appeal from the arbitrator’s 

award. See id. at 3 n.2. Because she did not file her first petition to open 

until four months after that date, the court concluded Appellant did not act 

promptly to preserve her rights. See id.

These findings are supported by the record. And the trial court’s 

reasoning is similar to that utilized in cases we have affirmed in the past. See 

U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d 

1019, 1028-29 (Pa. Super. 2017) (observing that prompt filing has generally 

meant less than one month delay).

Appellant also contends that her pro se status, when considered in 

conjunction with the non-traditional service utilized in this case, provides a 

reasonable excuse for her delay. However, the trial court concluded that 

Appellant’s pro se status did not create equitable circumstances that would 

excuse her from complying with the procedural rules. This conclusion is 

neither an error of law or abuse of discretion. See Branch Banking and 

Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) (noting that 
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individuals who choose to represent themselves assume risk that their lack of 

legal training will cause loss). As a result, we conclude that Appellant’s first 

issue on appeal does not merit relief.

In her second issue, Appellant claims that the trial court erred when it 

denied her second petition to open default judgment as procedurally improper

under Rule of Civil Procedure 206.1(b).

3 She argues that because she is 

indigent and the second petition is counseled, in the interest of fairness and 

justice, the trial court should have exercised its discretion to permit raising 

issues in a second petition. See Appellant’s Brief, at 15. Appellant has not 

cited, nor has our research revealed, any authority supporting her proposition 

that it is an abuse of discretion to apply the procedural requirements of Rule 

206.1 to indigent defendants who later obtain pro bono counsel. 

In any event, it is obvious the trial court would not have granted relief 

on the counseled petition. The counseled, second petition is more detailed 

and cogently argued than the first, pro se petition. However, the reasoning 

the court employed in denying Appellant’s pro se petition applies equally to 

the allegations and arguments presented in the counseled petition. 

Ultimately, Appellant cannot overcome the fact that she had actual knowledge 

of the complaint and default judgment four months before she filed the pro se

petition. Further, her pro se status did not relieve her of her obligation to file 

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3 Pennsylvania Rule of Civil Procedure 206.1(b) states that an application to 

open default judgment “shall specify the relief sought . . . [and a]ll grounds 

for relief . . . shall be asserted in a single petition.” Pa.R.C.P. 206.1(b).
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a prompt response to the complaint or a prompt petition to open. Therefore, 

Appellant’s second issue does not merit relief.

For the aforementioned reasons, Appellant’s claims do not merit relief. 

Accordingly, we affirm the trial court’s orders denying her petitions to open.

Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/4/19