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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 : : : : : : : : : : : : 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 : : : : : : : : : : 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 0 4 , 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.J

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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 grant ed 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, Ap pellant 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, t he tr ial court found that the reco rd

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

_________________ __________ ______ ____ _______

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).J

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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, p rovided 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 c ourt 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 den ied 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 petition s to open default judgment. Specifically, she contend s 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 fa ilure 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 errorJ

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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 allegati ons 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 lengt h 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. 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 origin al complaint in a timely fashion. ” Myers v. Wells Fargo Bank,J

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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 fil ings. 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 n ot 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. Watte rs , 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 cas e, 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 thatJ

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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 Civ il 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 exer cised its discretion to permit raising issues in a second petition

. See Appella nt’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 couns el. 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 d enying 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

_________________ __________ ______ ____ _______
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).J

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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 d o 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