J-S43029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

OBERMAYER REBMANN MAXWELL & 

HIPPEL, LLP

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THIRD PILLAR SYSTEMS, INC. AND THE 

BUZBEE LAW FIRM

Appeal of: The Buzbee Law Firm No. 3340 EDA 2014

Appeal from the Order Entered November 12, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): February Term, 2014, No. 01063

BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 04, 2015

Appellant, The Buzbee Law Firm, appeals from the order entered 

November 12, 2014, in the Court of Common Pleas of Philadelphia County, 

which denied its petition to open the default judgment. We affirm. 

Appellant is a law firm based in Houston, Texas. In June 2010, 

Appellant acted as an agent to retain Appellee, Obermayer Rebmann 

Maxwell & Hippel, LLP, to serve as local counsel in the Eastern District of 

Pennsylvania on behalf of Appellant’s client, Third Pillar Systems, Inc. The 

trial court summarized the subsequent history of this case as follows.

The instant case commenced February 11, 2014, with the 

filing of a Complaint by Appellee Obermayer Rebmann Maxwell & 

Hippel, LLP against Appellant and Third Pillar Systems, Inc. The 

[C]omplaint raised counts of breach of contract, quantum 

meruit, and action on an account stated. 
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On February 27, 2013, Appellee filed an Affidavit of 

Service of Complaint upon Appellant by certified mail on 

February 18, 2014. The Complaint was mailed to Appellant at JP 

Morgan Chase Tower, 600 Travis Ste 7300, Houston, TX, 77002. 

On May 28, 2014, Appellee sent a Notice of Intent to Enter 

Default Judgment to Appellant via certified mail and regular first 

class mail. 

On June 10, 2014, Appellee filed a Praecipe for Judgment 

by Default in the amount of $49,378.01. 

On September 19, 2014, Appellant filed a Petition to Open 

Judgment, arguing that service of the [C]omplaint was not 

properly effectuated as Appellant’s proper name was Anthony G. 

Buzbee, [L.P.] and that Appellant had consequently not had an 

opportunity to answer and/or respond to the Complaint and 

present its meritorious defenses. Additionally, in its 

memorandum of law, Appellant argued that it “simply acted as 

an agent to retain [Appellee] to serve as local counsel ... 

[Appellant] was not a named defendant in the underlying 

litigation and nowhere in the fee agreement did [Appellant] 

agree to guarantee or be responsible for the fees of Third Pillar.” 

On October 14, 2014, Appellee filed an Answer in 

Opposition to Appellant’s Petition. The Answer denied 

Appellant’s averments and further stated that “The Buzbee Law 

Firm” was the name regularly used by Appellant [on] letterhead 

[in] a letter in which it acknowledged that it was a party to the 

lawsuit. See Answer in Opposition, Exhibit B. 

On November 7, 2014, following consideration of the 

relevant record, [the trial court] denied Appellant’s Petition to 

Open Judgment. 

Trial Court Opinion, 2/3/15, at 1-2. This timely appeal followed. 

Appellant raises the following issue for our review.

Whether the trial [c]ourt below erred in denying a Petition to 

Open a Default Judgment in favor of Appellant Buzbee where 

ineffective service was made and there exists meritorious 

defenses to the claims set forth in the Complaint?

Appellant’s Brief, at 3. 
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Our standard of review provides that 

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

equitable powers of the court, and absent an error 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.

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

appeal denied, 42 A.3d 294 (Pa. 2012).

“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.” Id., at 92 (citations omitted). “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.” Id. (citation omitted). Normally, 

in cases in which the court has found a petition to open to have been prompt 

and timely filed, the period of delay has been under one month. See id. 

(collecting cases). 

Instantly, the trial court concluded that Appellant failed to satisfy even 

the first prong of the test, in that it did not promptly file its petition to open 

the default judgment until September 19, 2014—101 days after it was 

entered on June 10, 2014. This delay is patently unreasonable. See, e.g.,
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US Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (finding 82 

day delay was not timely). 

Although Appellant contends that it never received notice of the 

lawsuit or of the entry of default judgment, the record belies this assertion. 

As correctly noted by the trial court, “[s]ervice [of the complaint] was sent 

to the address of [Appellant’s] Houston, Texas principal location by certified 

and first class regular mail. The return receipt in the affidavit of service was 

signed [on February 18, 2014] and received, and included in Appellee’s 

affidavit [filed February 27, 2014].” Trial Court Opinion, 2/3/15, at 3. See 

also, Plaintiff’s Response to Defendant’s Petition to Open Default Judgment, 

10/14/14, at Exhibit A. Appellant specifically acknowledged receipt of the 

complaint in a letter delivered to Third Pillar Systems, Inc. by fax and 

certified mail on March 18, 2014. See id., at Exhibit B. Appellee delivered 

the 10-day notice of praecipe to enter default judgment to Appellant via first 

class and certified mail on May 28, 2014, and Appellant indicated receipt of 

the notice when it signed and returned the certified mail return of service 

form on June 2, 2014. See id., at Exhibit D. After receiving no response, 

Appellee filed a praecipe to enter default judgment with the prothonotary 

and delivered notice to Appellant on June 10, 2014. See id., at Exhibit E. 

Appellant does not contest the validity of the signed certified mail 

return of service forms or the correspondence written on firm letterhead that 

explicitly referenced Appellee’s lawsuit. Clearly, it cannot now claim lack of 

knowledge of the judgment as an excuse for failing to file a timely petition to 
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open. We therefore agree with the trial court that it was unreasonable for 

Appellant to wait 101 days to file a petition to open the default judgment. 

We likewise agree that Appellant fails to satisfy the second prong, i.e., 

that it had a justifiable excuse for failing to file a timely response to 

Appellee’s complaint. “[W]hether an excuse is legitimate is not easily 

answered and depends upon the specific circumstances of the case.” US 

Bank N.A., 982 A.2d at 995 (citation omitted). “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.” 

Id. (citation omitted). 

In its petition to open the default judgment, Appellant avers that it did 

not file a timely response because Appellee did not properly serve the 

complaint. Appellant further contends that service was improper as the 

complaint incorrectly named the defendant as “The Buzbee Law Firm,” and 

not “Anthony G. Buzbee, L.P.,” the name under which it is legally registered 

in the state of Texas. Rejecting these positions, the trial court concluded 

that Appellee’s service of the complaint fully complied with the Pennsylvania 

Rules of Civil Procedure:

Rule 2177 of the Pennsylvania Rules of Civil Procedure 

states that an action shall be prosecuted against a corporation or 

similar entity in its corporate name. Zercher v. Coca-Cola 

USA, 438 Pa. Super. 142, 146, 651 A.2d 1133, 1135 (1994). A 

corporate name is defined as any name, real or fictitious, under 

which a corporation or similar entity was organized or conducts 

business, whether or not such name has been filed or 

registered. Zercher, 651 A.2d at 1135; Pa.R.C.P. No. 2176. 

Appellee provided exhibits to show that Appellant does business 
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under the name “The Buzbee Law Firm,” namely, the firm’s own 

letterhead. Thus, Appellant was properly sued under that name. 

Service was sent to the address of [Appellant’s] Houston, 

Texas principal location by certified and first class regular mail. 

The return receipt in the affidavit of service was signed and 

received, and included in Appellee’s affidavit. Per Pa.R.C.P. 

404(2), Appellee was permitted to serve an out of state 

defendant in the manner governed by Pa.R.C.P. 403, which 

states that “a copy of the process shall be mailed to the 

defendant by any form of mail requiring a receipt signed by the 

defendant or his authorized agent.” Pa.R.C.P. 403[;] ANS 

Associates, Inc. v. Gotham Ins. Co., [42 A.3d 1074, 1076 

(Pa. Super. 2012)].

Appellee provided a signed certified mail return of service 

form, signed and delivered on February 18, 2014, that was sent 

to Appellant’s address. Consequently, service was properly 

made. 

Trial Court Opinion, 2/3/15, at 3 (emphasis in italics added).

We agree with the trial court’s cogent analysis. Appellant does not 

dispute that it regularly conducts business as “The Buzbee Law Firm,” as 

indicated on the firm’s letterhead, nor does it dispute that the Houston, 

Texas location at which it was served with the complaint was a valid 

business location. That Appellant received the complaint is evident by the 

signed certified mail receipt reflected in the affidavit of service Appellee filed 

February 27, 2014. See Pa.R.C.P. 403 (“Service is complete upon delivery 

of mail.”). For these reasons, Appellant’s argument that it did not respond 

to the complaint due to improper service is wholly without merit. 

Finally, we conclude that Appellant has failed to satisfy the third prong 

of the test, in that it did not plead a meritorious defense to the allegations in 

the complaint. The trial court concluded that Appellant “has not asserted 
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any meritorious defense in its petition, other than a bare allegation that it 

possesses one.” Trial Court Opinion, 2/3/15, at 6. We agree. 

“Merely asserting in a petition to open default judgment that one has a 

meritorious defense is insufficient.” Seeger v. First Union Nat. Bank, 836 

A.2d 163, 166 (Pa. Super. 2003) (citation omitted). The moving party must 

set forth its meritorious defense “in precise, specific and clear terms.” Id. 

(citation omitted). Appellant’s assertion in the petition that it “has never 

had the opportunity to ... present its meritorious defenses” is insufficient to 

satisfy this requirement. See Petition to Open Default Judgment, 9/19/14, 

at ¶5.

Based on the foregoing, we find no abuse of discretion in the trial 

court’s denial of Appellant’s motion to open the default judgment. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/4/2015