J-A07028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ZHI LIN

v.

JACK M. BERNARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 831 EDA 2022

Appeal from the Order Entered March 21, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 2108000779

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED MAY 2, 2023

Jack M. Bernard appeals from the trial court order denying his petition 

to open the default judgment entered against him and in favor of Zhi Lin. We 

affirm.

Lin initiated a negligence and breach of contract action against Bernard 

in August 2021 and subsequently filed an affidavit of service confirming that

personal service occurred in September and October 2021. On December 4, 

2021, Bernard’s counsel entered an appearance. In December 2021, Lin filed 

a praecipe for entry of default judgment. Lin attached to it a copy of the

certificate of service of the notice of praecipe to enter the default judgment,

stating the notice had been served by mail on November 24, 2021. The court 

entered the default judgment on December 8, 2021. 

On December 20, 2021, Bernard filed a petition to open the judgment

by default, arguing the affidavit of service was fraudulent and claiming he had 
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not been served with the complaint and had not received notice of intent to 

enter default. He also attached preliminary objections raising improper service

of process, lack of personal jurisdiction for failure to serve the complaint, and 

failure to conform to law or rule of court for failing to plead whether the 

contract was written or oral and, if written, to attach the contract. 

In January 2022, the trial court issued a rule to show cause why the 

petition should not be granted. At the hearing, Bernard claimed he had 

received a package from Lin in August 2021 that included a letter referencing 

the enclosed complaint and some papers, but not the complaint. N.T., Mar. 

16, 2022, at 7-9. However, Bernard then abandoned his argument regarding 

service, and proceeded only on the claim that he raised a meritorious 

preliminary objection because Lin did not properly plead whether the contract

was written or oral and, if written, failed to attach the contract, as required 

by Pa.R.C.P. 1019(h) and (i). Id. at 35-36. Bernard argued the court had to 

open the judgment under Pa.R.C.P. 237.3. Id. at 10-12.

The court denied the petition to open the default judgment, finding

Bernard had not asserted a meritorious defense. Bernard filed a timely appeal.

Bernard raises the following issues:

1. Did the trial court commit an error of law when it denied 

[Bernard’s] Petition to Open the Default Judgment entered 

on December 8, 2021?

2. Did the trial court commit an error of law in its application 

of Pa.R.C.P. No. 237.3(b)(2) to [Bernard’s] timely Petition 

to Open the Default Judgment with his proposed Preliminary 

Objections (“Petition”) attached thereto?
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3. Did the trial court commit an error of law in determining 

that [Bernard] was required to plead a meritorious defense 

instead of one or more preliminary objections with merit?

Bernard’s Br. at 7. Bernard’s claims are related, and we will address them 

together. 

Bernard argues that under Rule 237.3, if a petition to open is filed within 

ten days of the entry of the default judgment, the court must grant it where 

the petitioner attaches one or more meritorious preliminary objections. He 

points out he filed the motion to open within ten days of the entry of default 

judgment. He then argues he attached his preliminary objections, which 

included improper service of process, lack of personal jurisdiction, and failure 

to conform to rule of court or law because Lin did not attach a copy of the 

contract. 

Bernard argues that because Lin did not plead whether the contract was 

written or oral or attach a copy of any written agreement, his third preliminary 

objection had merit and therefore the court had to grant the petition to open.

Bernard relies on Estate of Bradley v. A.B.E. Group, No. 2461 EDA 2021,

2022 WL 4282829 (Pa.Super. filed Sept. 16, 2022) (unpublished 

memorandum), as persuasive authority that he claims supports his argument 

that the court must grant the petition to open if the objection has merit and 

would normally be granted at the preliminary objection stage. He further 

argues on appeal that he was not properly served in Massachusetts, as the 

mail delivery was not signed for by Bernard or an authorized agent.
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“[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.” Myers v. Wells Fargo Bank, 

N.A., 986 A.2d 171, 175 (Pa.Super. 2009) (quoting US Bank N.A. v. 

Mallory, 982 A.2d 986, 994 (Pa.Super. 2009)). “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.” Id. (quoting Mallory, 982 A.2d at 994).

A court may open a default judgment “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 176. “[A] meritorious defense is . . . a defense . . . that if 

proved at trial would justify relief.” Smith v. Morrell Beer Distr., Inc., 29 

A.3d 23, 26 (Pa.Super. 2011) (quoting Penn-Delco Sch. Dist. v. Bell Atl.-

Pa. Inc., 745 A.2d 14, 19 (Pa.Super. 1999)).

Under Rule 237.3(b)(2), the first and second prongs of the test are 

presumed to be met, and the trial court must open the judgment if the 

petitioner filed the petition to open within 10 days of the entry of the default 

judgment and one or more proposed preliminary objections has merit:

(2) If the petition is filed within ten days after the entry of 

a default judgment on the docket, the court shall open the 

judgment if one or more of the proposed preliminary 

objections has merit or the proposed answer states a 

meritorious defense.
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Pa.R.C.P. 237.3(b)(2). Rule 237.3(b)(2) “does not change the law of opening 

judgments.” Rule 237.3, Note. “Rather, the rule supplies two of the three 

requisites for opening such judgments by presupposing that a petition filed as 

provided by the rule is timely and with reasonable explanation or legitimate 

excuse for the inactivity or delay resulting in the entry of the judgment.” Id.

In Estate of Bradley, 2022 WL 4282829, at *1, this Court reversed the 

denial of a petition to open where it was filed within ten days of the entry of 

the default judgment, and it raised a demurrer to a request for attorney fees.1

We pointed out that Rule 237.3 did not alter the law of opening judgment, 

“but merely ease[d] the burden of a party against whom judgment has been 

entered and who move[d] promptly for relief from that judgment.” Id. at *2. 

We reasoned that when the petition to open is filed within 10 days, the “only 

relevant point of inquiry for the trial court” is whether the petitioner alleged 

“a meritorious defense in [the] preliminary objections.” Id. at *3. We 

reiterated that the requirement of a meritorious defense is that a “defense 

must be pleaded that if proved at trial would justify relief.” Id. at *4 (citation 

omitted). We concluded that the petitioner in the Estate of Bradley had 

raised a meritorious defense because if the petitioner proved that no statute 

or agreement provided for the recovery of counsel fees, and no other 

exception applied, the petitioner would be entitled to relief. Id. at *5.

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1 This Court may cite its unpublished non-precedential memoranda filed after 

May 1, 2019, for their persuasive value. Pa.R.A.P. 126(b).
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Here, the trial court found that Bernard did not include a meritorious 

preliminary objection. The court found that Bernard’s third objection—failure 

to conform to Pa.R.C.P. 1019(h) and (i) by not stating whether the agreement 

was oral or written or attaching a written contract—lacked merit. It reasoned 

that the objection would not justify relief at trial, as it did “not address the 

crux of the complaint, negligence and malpractice,” and would not justify relief 

on the claims.2 Trial Court Opinion, June 8, 2022, at 4. It further found that a 

judgment should not be opened on a mere technical ground, and the failure 

to attach a contract or allege whether it was oral or written, was a technical 

defense. Id.

The court did not abuse its discretion in finding Bernard’s third 

preliminary objection did not raise a meritorious defense for purposes of the

petition to open. The failure to allege whether the contract was written or oral 

or to attach a written complaint was a curable error in pleading and would not 

justify relief at trial. Moreover, in addition to the contract claim, the complaint 

asserted a claim for negligence.

On appeal, Bernard argues that the service was improper because it was 

not signed for by him or an authorized agent. He did not raise this argument

before the trial court. He therefore waived this claim and we will not consider 

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2 The complaint alleged that Bernard was Lin’s attorney and failed to file 

responses or appear at scheduled conferences. 
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it on appeal. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the 

trial court are waived and cannot be raised for the first time on appeal”).3, 4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/2/2023

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3

In the preliminary objections, Bernard claimed he had not been served. At 

the hearing, he clarified he received the package, but claimed it did not include 

the complaint. He then only sought relief based on his claim that the complaint 

failed to conform to Pa.R.C.P. 1019(h) and (i). See N.T., Mar. 16, 2022, at 

35-36; Trial Ct. Op. at 3.

4

If Bernard had raised on appeal the same claim he raised in the trial court, 

that is, he did not receive the complaint, we would conclude the court did not 

abuse its discretion in finding he abandoned this claim and that it lacked merit.

See Trial Ct. Op. at 3.