J. S21028/17

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM PARKER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

: BARRY JOHNSON D/B/A FAB 5 : ENTERTAINMENT, LLC, :
APPELLANT :

:

: No. 1564 WDA 2016

Appeal from the Order September 16, 2016 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 15

- 009524

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J. *

MEMORANDUM BY DUBOW, J.: FILED APRIL 20, 2017

Appellant, Barry Johnson d/b/a Fab 5 Entertainment LLC, appeals from

the September 16, 2016 Order entered in the Allegheny County Court of

Common Pleas denying his Petition to Strike Judgment or in the Alternative

Motion to Open Judgment. We affirm.

Appellee, Will iam Parker, commenced this action by Writ of Summons

on May 29, 2015. On June 10, 2015, Appellee attempted to serve Appellant

with the Writ at Appellant’s official business address of 3515 Boulevard of

the Allies, Pittsburgh. Appellee again attempted to serve Appellant on June

11, 2015, but the sheriff noted that Appellant was not at that address.

* Retired Senior Judge assigned to the Superior Court.J. S21028/17

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Appellee reissued the Writ on March 15, 2016. Appellee served

Appellant with the Writ by personal service at 912 Red River Street, Austin,

Texas, using the Travis County Constable.

On March 22, 2016, Appellant requested a copy of the Complaint from

Lou Kroeck, Esquire, Appellee’s attorney. On May 3, 2016, Appellant’s

attorney, Leilah Escalera, Esquire, requested a copy of the Complaint via

email from Mr. Kroeck.

On May 12, 2016, Appellee filed a three

- count Complaint against

Appellant, raising claims of Tortious Interference with Contractual Relations,

Commercial Disparagement, and Libel Per Se , arising from a signed

management agreement with a third

- party recording artist. Appellee sent a

copy of the Complaint to Appellant and his attorney. Appellant did not file

an Answer to the Complaint.

On June 21, 2016, Appellee sent a Notice of Intent to Enter Judgment

by Default pursuant to Pa.R.C.P. No. 237 .1 to Appellant’s counsel. On July

7, 2016, Appellee filed a Praecipe to Enter Judgment by Default, and

requested a hearing on damages.

On August 30, 2016, Appellant filed a Petition to Strike Judgment or in

the Alternative Motion to Open Judgment. 1 A ppellant claimed in his Petition

that the Judgment entered against him was invalid on its face because

1 On September 20, 2016, Appellant filed another Petiti on to Strike Judgment or in the Alternative Motion to Open Judgment. The latter filing appears identical to the first except that it omits a proposed Order.J. S21028/17

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Appellee failed to formally serve him with the Writ of Summons or the

Complaint pursuant to Pa.R.C.P. No. 402. 2 The trial court denied Appellant’s

Petit ion on September 16, 2016. Appellant timely appealed. 3

The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) Statement,

and Appellant complied. In his Rule 1925(b) statement, Appellant raised

two allegations of error:

1. Whether the [c]ourt erre d as a matter of law in denying [Appellant’s] Petition to Open/Strike the Default Judgment since the Prothonotary entered the Default Judgment without any information on the docket relating to whether original process/service was accomplished in the Action ?

2. Whether the [c]ourt erred as a matter of law[] in denying [Appellant’s] Petition to Open/Strike the Default Judgment since the Pa.R.C.P. 237.1 Important Notice required prior to the entry of a [D]efault [J]udgment was never served on [Appellant] or [ Appellant’s] Attorney of

Record?

Appellant’s Pa.R.A.P. 1925(b) Statement, 11/3/16.

Appellant raises one issue on appeal:

2 Rule 402 provides instructions for service of original process on a

defendant.

3 Although the trial court has not held a hearing to ascertain Appellee’s damages, the court’s September 16, 2016 Order is appealable as “[a]n [O]rder refusing to open, vacate, or strike off a judgment.” See Pa.R.A.P. 311(a)(1); see also Mother’s Restaurant, Inc. v. Kry stkiewicz , 861 A.2d 327 (Pa. Super. 2004) (explaining that an Order denying a Petition for relief from Default Judgment was appealable as of right as an order refusing to vacate or strike off a judgment; aggrieved party can seek to open, strike,

or vacate entry of default judgment prior to the assessment of damages or entry of a final decree).J. S21028/17

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- Whether the Pa.R.C.P. Important Notice [ sic ] must be served on a party and any attorney of record for the Prothonotary to have the po wer to enter a Default Judgment?

Appellant’s Brief at 4.

It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see

also Steiner v. Markel , 968 A.2d 1253, 1257 (Pa. 2 009) (explaining that a

Rule 1925(b) Statement can never be used to raise a claim that a party

failed to raise before the trial court).

In his Petition to Strike the Default Judgment, Appellant claimed that

the Judgment against him was void because Appell ee did not properly serve

him with the Writ of Summons or the Complaint. The trial court rejected

this claim, finding that Appellee requested service of the Complaint by email,

and in doing so, agreed to service by electronic means pursuant to Pa.R.C.P.

N o. 205.4(g).

Dissatisfied by this result, Appellant filed a Notice of Appeal and court

ordered Rule 1925(b) Statement. In his Rule 1925(b) Statement, Appellant

challenged the trial court’s conclusion with respect to Appellant’s Pa.R.C.P.

No. 402 service of process, and, for the first time , raised a challenge to

the propriety of Appellee’s Rule 237.1 Notice of Intent to Enter Default

Judgment. In his Brief to this Court, Appellant has abandoned his claim of

error regarding Rule 402 service of process; in stead he argues only that the

court erred in finding that Appellee provided him with 237.1 Notice prior toJ. S21028/17

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filing a Praecipe to Enter Default Judgment. 4 Because Appellant raised this

issue for the first time in his Rule 1925(b) statement, it is waived. A ppellant

is, thus, not entitled to relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/20/2017

4 We note it is Appellant’s responsibility to set forth expressly in his Brief reference to the place in the record where the issue presented for decision on appeal h ad been raised below. See Pa.R.A.P. 2117(c) and 2119(e). Appellant has not done so.