J-A19021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ABIGAIL ROSARIO IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

NORTHWOOD MANOR, LLC., PHILLY 

MANAGEMENT GROUP, LLC.

AND CHUCK W. CHIU

APPEAL OF: CHUCK W. CHIU

No. 2888 EDA 2015

Appeal from the Order Dated August 14, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): July Term 2007, No. 00032

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED NOVEMBER 17, 2016

Chuck W. Chiu appeals from the order entered August 14, 2015, in the 

Philadelphia County Court of Common Pleas, denying his petition to strike or 

open a $9,000,000.00 default judgment entered against him, and in favor of 

Abigail Rosario. On appeal, Chiu argues the trial court erred or abused its 

discretion in refusing to open or strike the judgment. For the reasons below, 

we affirm.

The facts and procedural history underlying this appeal are as follows. 

On July 2, 2007, Rosario initiated this negligence action by writ of summons 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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naming Chiu, Northwood Manor, LLC (“Northwood Manor”), and Philly 

Management Group, LLC (“PMG”), as defendants (collectively, “the 

defendants”). She served Chiu both at his home address on Brighton Street 

in Philadelphia, and at 7628 Castor Avenue in Philadelphia, a property that 

he owned and leased, in part, to PMG. Thereafter, on July 18, 2007, Rosario 

filed a complaint, in which she alleged the “defendants owned, operated, 

leased, managed, controlled and/or had dominion over the premises known 

as Northwood Manor and Northwood Manor Apartment ‘1 F’ both located at 

1320 Foulkrod Street, Philadelphia, Pennsylvania 19124.”1 Complaint, 

7/18/2007, at ¶ 5. She further averred that on March 11, 2007, while living 

in Apartment 1F, she fell due to an “unreasonably dangerous condition” in 

the flooring and carpeting, and suffered serious and permanent injuries to 

her face, head and spinal cord. See id. at ¶ 6. The record reveals Rosario 

mailed the initial complaint to Chiu’s Brighton Street home address. 

However, when she reissued the complaint on January 17, 2008, she sent 

Chiu’s copy by certified mail to the Castor Avenue address. From that date 

forward, Rosario served Chiu with all relevant documents at the Castor 

Avenue address. 

____________________________________________

1 This is the only averment in Rosario’s complaint that links Chiu to the 

Foulkrod Street apartment.
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When none of the defendants responded to the complaint, on February 

21, 2008, Rosario sent all three defendants notice of her intent to enter a 

default judgment. See Pa.R.C.P. 237.1. Again, Rosario sent Chiu’s notice to 

the Castor Avenue address. On March 24, 2008, the trial court entered 

default judgment against all three defendants. Thereafter, Roasario filed a 

motion to assess damages, and, following a hearing, the court entered an 

order in December of 2008 assessing damages against all three defendants, 

jointly and severally, in the amount of $9,000,000.00.2

Unbeknowst to the trial court, a bankruptcy stay had been entered 

against Northwood Manor. After that stay was lifted, the trial court 

conducted a second assessment hearing, and, on December 16, 2009, 

entered an order, once again, assessing damages against the defendants in 

the amount of $9,000,000.00.3 

On October 14, 2012, Rosario filed a praecipe for a writ of revival of 

the judgment. Thereafter, on October 21, 2014, she served Chiu with the 

writ of revival only at his home address on Brighton Street on October 21, 

2014. See Affidavit of Service, filed 11/3/2014. More than five months 

____________________________________________

2 Rosario was rendered a paraplegic as a result of the injuries she sustained 

in the fall. See Rosario’s Motion to Assess Damages in Accord with Request 

for Admissions, 4/1/2008, at ¶ 13. 

3 Although there is no transcript of either assessment hearing in the certified 

record, from what we can gather, none of the defendants participated in 

either hearing.
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later, on March 31, 2015, Chiu filed a petition to strike or open the default 

judgment. Following a hearing on August 14, 2015, the trial court denied 

Chiu’s petition. On September 11, 2015, Chiu filed, simultaneously, both a 

motion for reconsideration and a notice of appeal.4 The trial court denied 

the motion for reconsideration on September 15, 2015.5 

On appeal, Chiu first argues the trial court erred in denying his motion 

to strike the nine million dollar default judgment. Specifically, he contends 

the record “reflects a fatal error” because he was not properly served with 

the ten-day default notice as required by Pennsylvania Rule of Civil 

Procedure 237.1(a)(2)(ii). Chiu’s Brief at 12. Chiu asserts that because 

Rosario mailed the default notice to the Castor Avenue address, which was 

neither his residence nor place of business, her service of the notice was 

____________________________________________

4 The record reflects that the order denying Chiu’s petition was mailed to the 

parties on August 18, 2015. See Order, 8/14/2015. Therefore, Chiu had 

until September 17, 2015, to file a timely notice of appeal. See Pa.R.A.P. 

903(a). 

5 When the court failed to expressly grant Chiu’s motion for reconsideration 

within the relevant 30-day period, Chiu’s previously filed notice of appeal 

took effect. Pa.R.A.P. 1701(b)(3). See also Valley Forge Ctr. Associates 

v. Rib-It/K.P., Inc., 693 A.2d 242 (Pa. Super. 1997).

On September 16, 2015, the trial court ordered Chiu to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Chiu complied with the court’s directive, and filed a concise statement on 

October 6, 2015.
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ineffective pursuant to Pennsylvania Rule of Civil Procedure 440(a)(2)(i). 

Id. 

Chiu’s appeal implicates the Pennsylvania Rules of Civil Procedure. As 

such, we are presented with a question of law so that “our standard of 

review is de novo and our scope of review is plenary.” Osward v. WB 

Public Square Associates, LLC, 80 A.3d 790, 793 (Pa. Super. 2013). See 

also Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 

1267 (Pa. Super. 2015).

Preliminarily, “[a] petition to strike a default judgment and a petition 

to open a default judgment request distinct remedies and generally are not 

interchangeable.” Erie Ins. Co. v. Bullard, 839 A.2d 383, 386 (Pa. Super. 

2003). In considering the denial of a request to strike a judgment, we are 

guided by the following:

“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.” First Union Nat. Bank v. 

Portside Refrigerated Servs., Inc., 827 A.2d 1224, 1227 (Pa. 

Super. 2003) (quoting PNC Bank v. Bolus, 440 Pa. Super. 372, 

655 A.2d 997, 999 (1995)). “When deciding if there are fatal 

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

strike a judgment, a court may only look at what was in the 

record when the judgment was entered.” Cintas Corp. v. Lee's 

Cleaning Servs., Inc., 549 Pa. 84, 700 A.2d 915, 917 (1997) 

(citing Linett v. Linett, 434 Pa. 441, 254 A.2d 7, 10 (1969)). 

“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.” 

City of Philadelphia v. David J. Lane Advertising, 33 A.3d 

674, 677 (Pa. Cmwlth. 2011) (citing First Union Nat'l Bank,

827 A.2d at 1227). Importantly, “[a] petition to strike does not 
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involve the discretion of the [trial] court.” Cintas Corp., 700 

A.2d at 919 (citing Dubrey v. Izaguirre, 454 Pa. Super. 504, 

685 A.2d 1391, 1393 (1996)).

Oswald, supra, 80 A.3d at 793–794. Moreover, we emphasize: “Matters 

outside of the record will not be considered, and if the record is selfsustaining, the judgment will not be stricken.” Aquilino v. Philadelphia 

Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa. Super. 2005) (citation 

omitted). 

Chiu’s argument focuses on the interplay between Pennsylvania Rules 

of Civil Procedure 237.1 and 440. Rule 237.1 requires a plaintiff to provide a 

defendant with at least 10 days prior notice of her intent to enter a default 

judgment. The Rule states:

(2) No judgment ... by default for failure to plead shall be 

entered by the prothonotary unless the praecipe for entry 

includes a certification that a written notice of intention to file 

the praecipe was mailed or delivered

* * * *

(ii) in the case of a judgment by default, after the failure 

to plead to a complaint and at least ten days prior to the 

date of the filing of the praecipe to the party against whom 

judgment is to be entered and to the party's attorney of 

record, if any.

Pa.R.C.P. No. 237.1(a)(2)(ii) (emphasis supplied). The notice requirement 

may not be waived,6and “[a] record that reflects a failure to comply with 

Rule 237.1 is facially defective and cannot support a default judgment.” 

Erie Ins. Co., supra, 839 A.2d at 387.

____________________________________________

6

Pa.R.C.P. 237.1(a)(4).
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Rule 440 sets forth the requirements for the service of legal papers 

other than original process. Where, as here, there was no attorney of 

record, the Rule provides:

[S]ervice shall be made by handing a copy to the party or by 

mailing a copy to or leaving a copy for the party at the address 

endorsed on an appearance or prior pleading or the residence 

or place of business of the party, or by transmitting a copy 

by facsimile as provided by subdivision (d).

Pa.R.C.P. 440(a)(2)(i) (emphasis supplied).7

As noted above, Chiu maintains that “the Default Notice was not sent 

to [his] residence or place of business but rather allegedly to his tenants at 

his Castor Avenue Property where he had no agents, employees or 

managers under his control.” Chiu’s Brief at 11. Therefore, he argues the 

record “reflects a fatal error” and the trial court erred in failing to strike the 

default judgment. Id. at 12.

The trial court, however, concluded Chiu “failed to demonstrate that a 

fatal defect existed at the time the judgment was entered.” Trial Court 

Opinion, 1/5/2016, at 3. Rather, the court found Rosario “substantially 

complied” with the requirements of Rule 237.1, by mailing the 10-day notice 

to “an address of record” for Chiu.8 Id. Upon our review of the record, we 

agree.

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7 See also Pa.R.C.P. 440 (a)(2)(ii) (explaining that “[i]f such service cannot 

be made [under subsection (i),] service shall be made by leaving a copy at 

or mailing a copy to the last known address of the party to be served.”). 

8 We note the trial court did not specifically address Rule 440 in its opinion.
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When Rosario filed the praecipe to enter a default judgment against 

Chiu, her attorney properly attached to the document a copy of the 10-day 

notice required by Rule 237.1, and certified that the notice was “mailed to 

[Chiu] at his last known address.” Praecipe for Entry of Judgment of 

Default, 3/24/2008. The attached 10-day notice is addressed to Chiu at the 

Castor Avenue property. See id. Further, Rosario’s counsel also attached 

an Affidavit of Non-Military Service to the praecipe, in which counsel’s 

averred the following:

Defendant, Chuck Chiu, is an adult, that his place of residence, 

upon reasonable investigation, is [] Brighton Street ..., and that 

he is in the business of real estate, with his place of business 

located at 7628 Castor Avenue, Philadelphia, PA 19152, 

and that he not in the military service of the Unites States or its 

allies ...

Affidavit of Non-Military Service, 3/24/2008 (emphasis supplied). Moreover, 

the record also contains two affidavits of service for the writ of summons, 

which establish Chiu was served with a copy of the writ both at his residence 

on Brighton Street, and at the Castor Avenue property. See Affidavits of 

Service, filed 7/18/2007. There was no indication in the certified record 

that service to Chiu at the Castor Avenue property was improper. See

Pa.R.A.P. 440(a)(2)(i) (service may be mailed to “the residence or place of 

business of the party”). Accordingly, considering only the facts of record, we 

agree with the trial court’s determination that no fatal defect or irregularity 

was apparent on the face of the record at the time the default judgment was 

entered. See Trial Court Opinion, 1/5/2016, at 3.
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In his second issue, Chiu argues the court abused its discretion in 

denying his petition to open the default judgment. Chiu contends the trial 

court erred in considering his delay in filing the petition to open after the 

judgment had been revived, rather than focusing on the fact that Rosario 

“did not provide one shred of evidence that [Chiu] had actually received the 

Default Notice.” Chiu’s Brief at 13. Moreover, he emphasizes “the equities 

of [the] circumstances demanded that the [c]ourt examine the fact that 

[Chiu] had no nexus or connection with the party defendants, [Rosario] and 

the underlying case and controversy.”9 Id. at 14.

Our review of a trial court’s ruling concerning a petition to open a 

default judgment is well-settled: “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.” Green Acres Rehab., supra, 113 A.3d at 1270 (quotation 

omitted).

Unlike a petition to strike a judgment, “a petition to open a judgment 

is an appeal to the equitable powers of the court.” Mother's Rest. Inc. v. 

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9 During the hearing on Chiu’s petition, Chiu’s counsel explained PMG was 

the property manager, and Northwood was the owner, of the building at 

which Rosario was injured. N.T., 8/14/2015, at 6. However, counsel stated 

Chiu “doesn’t have any ownership interest, management interest or control 

of Northwood [or] Philly Management Group.” Id. In fact, he claimed Chiu’s 

only connection to the parties is as the owner of the Castor Avenue property, 

where PMG is a tenant. Id. at 5. 
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Krystkiewicz, 861 A.2d 327, 336 (Pa. Super. 2004) (en banc) (quotation 

omitted). Accordingly, if, as here, a party’s right to relief is based upon a 

challenge to the factual averments contained in the record at the time the 

default judgment was entered, he should seek to open the judgment, not 

strike it. Id.

Ordinarily, if a petition to open a judgment is to be successful, it 

must meet the following test: (1) the petition to open must be 

promptly filed; (2) the failure to appear or file a timely answer 

must be excused; and (3) the party seeking to open the 

judgment must show a meritorious defense.... In making this 

determination, a court can consider facts not before it at the 

time the judgment was entered. 

Id. (quotation omitted). “Moreover, we note the trial court cannot open a 

default judgment based on the ‘equities’ of the case when the defendant has 

failed to establish all three of the required criteria.” US Bank N.A. v. 

Mallory, 982 A.2d 986, 995 (Pa. Super. 2009).

In denying Chiu’s petition to open, the trial court emphasized Chiu 

waited “more than seven years after the entry of default judgment” to file 

his petition to open. Trial Court Opinion, 1/5/2016, at 4 (emphasis in 

original). Furthermore, the court explained that even if it determined Chiu 

did not discover the default judgment until he was served with the writ of 

revival on October 21, 2014, he still “waited approximately 168 days from 

this notice to file his petition to open” on March 31, 2015, and offered no 

explanation for the five-month delay. Id. at 4-5. Accordingly, the court 

found Chiu failed to act promptly in filing his petition to open the default 

judgment. 
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We find no abuse of discretion on the part of the trial court. Contrary 

to Chiu’s argument, the trial court properly focused on the delay between 

the date Chiu actually learned of the default judgment (i.e., service of the 

writ of revival in October of 2014), and the filing of the petition to open (i.e., 

March 31, 2015). Indeed, the record includes an affidavit of service averring 

that the writ of revival was personally served on an adult male at Chiu’s 

Brighton Street residence on October 21, 2014. See Affidavit of Process 

Server, filed 11/3/2014. Assuming arguendo, the service of the writ of 

revival was the first time Chiu learned the default judgment had been 

entered against him, he still waited more than five months to file a 

petition to open the judgment. The trial court acted well within its discretion 

in concluding the petition was not “promptly filed.” Mother’s Rest., supra, 

861 A.2d at 366. See US Bank, supra, 982 A.2d at 995 (delay of 82 days 

between notice of entry of default judgment and filing of petition to open 

was not prompt).

The trial court also found Chiu failed to satisfy the second prong of the 

test in that he neglected to provide a “justifiable explanation for his failure to 

file an Answer to the Complaint.” Trial Court Opinion, 1/5/2016, at 5. We 

agree. “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.” US Bank, supra, 982 A.2d at 995 

(emphasis supplied). 
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In his petition to open the judgment, Chiu averred he is a “Chinese 

immigrant who does not speak English” and “had no legal representation 

when [j]udgment was entered against him.” Chiu’s Petition to Strike or 

Open the Default Judgment Entered in Favor of Plaintiff Abigail Rosario, 

3/31/2015, at ¶¶ 2, 4. Furthermore, he asserted he “immediately filed this 

petition after he retained counsel” once the judgment was revived. Id. at ¶ 

21. He did not explain either in his petition or in his brief before this Court 

why he failed to file an answer to the original complaint. Indeed, Chiu 

admitted in his petition that “the original complaint had been served to [him] 

at his home at ... Brighton Street” in July of 2007. Id. at ¶ 7. See also

Complaint, 7/18/2007, Certificate of Service. 

Although Chiu emphatically argues he has no connection to the 

underlying controversy, and equitable considerations require this Court to 

open the underlying judgment,10 we remind him that neither this Court nor 

the trial court may “open a default judgment based on the ‘equities’ of the 

case when the defendant has failed to establish all three of the required 

criteria.” US Bank, supra, 982 A.2d at 995. Here, Chiu failed to 

demonstrate two of those prongs: (1) his petition to open was promptly 

filed and (2) that he had a reasonable excuse for failing to answer the 

____________________________________________

10 See Chiu’s Brief at 14.
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complaint. Consequently, we are compelled to conclude the trial court did 

not abuse its discretion in denying his petition to open the default judgment.

Because Chiu has failed to establish that the trial court erred or 

abused its discretion in denying his petition to strike or open the default 

judgment, we affirm the order on appeal.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016