J-A02026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HARLEYSVILLE MUTUAL INS. CO. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RACHELLE SOLOMON

Appellant No. 1623 EDA 2014

Appeal from the Order Entered on May 7, 2014

In the Court of Common Pleas of Montgomery County

Civil Division at No.: 2013-08342

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED APRIL 23, 2015

Rachelle Solomon appeals the May 7, 2014 order denying her petition 

to open the default judgment that was entered against her on June 17, 

2013. We affirm.

Harleysville Mutual Insurance Company (“Harleysville”) commenced 

the underlying action following a motor vehicle collision between Solomon 

and a street sweeper insured by Harleysville. The trial court summarized 

the factual and procedural history of this case as follows:

Harleysville Mutual Insurance Company filed suit against 

Rachelle Solomon seeking damages based upon the amounts 

paid by Harleysville on behalf of its insured, Industrial Grounds 

Maintenance (“Industrial or “the Insured”), as outlined in 

Harleysville’s complaint. According to the complaint, [Solomon] 

was driving negligently when she struck the rear of the Insured’s 

vehicle. Harleysville settled the damage claim of Industrial for 

$25,882.67. Under the insurance policy, Harleysville asserts 

[that] it is subrogated to Industrial for the amount it paid on 

Industrial’s behalf as a result of the collision caused by Solomon. 
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In this litigation, Harleysville seeks to recover the amount paid 

on behalf of Industrial—$25,882.67—from Solomon.

Harleysville filed and served the complaint on Solomon and she 

failed to file a timely response. The relevant timeline is as 

follows:

4/10/2013 Complaint filed.

5/6/2013 Solomon served on 5/6/2013, Sheriff’s 

return of service showing date of service as 

5/6/2013 was docketed 5/9/2013.[1]

6/17/2013 Default judgment entered.[2]

6/17/2013 Pa.R.C.P. 236 notice mailed.

____________________________________________

1 The proof of service filed of record indicates that the recipient of 

service was one Carol Puzzella (the spelling may be incorrect due to 

illegibility), who was served on May 6, 2013, at the address provided on the 

Order for Service. The Sheriff unsuccessfully attempted service first on April 

30, 2013, and left a note for Solomon. On May 2, 2013, the Sheriff again 

attempted service but failed, observing that the note was no longer where 

the Sheriff left it. The named recipient of the service rendered on May 6, 

2013, was described as a “PIC,” presumably indicating that Puzzella was the 

“person in charge” of Solomon’s residence. As such, absent a showing to 

the contrary, Puzzella was an appropriate recipient of service under 

Pa.R.C.P. 402(a)(2)(1), which permits service by handing the complaint to 

“an adult person in charge of” “the residence of the defendant.” Solomon 

does not allege that service was not effectuated upon Puzzella, that Puzzella 

was not a proper recipient of service under Rule 402(a)(2)(1), or that the 

complaint was not conveyed by Puzzella to Solomon. Accordingly, we 

assume that service was properly rendered, and that Solomon knew that she 

had been named as a defendant in the instant suit within the period during 

which she could respond timely. 

2 According to Solomon, on June 11, 2013, after service of the instant 

complaint and shortly before default judgment was entered in the instant 

matter, she filed a separate suit against the driver of the street sweeper and 

Industrial at a different docket number. Brief for Solomon at 7. Still later, 

on August 7, 2013, the driver of the street sweeper filed his own suit against 

Solomon. Id.
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7/2/2013 Entry of Appearance of Marc F. Greenfield, 

Esq., for Solomon.

7/2/2013 Answer and New Matter to the complaint 

filed by Solomon.[3]

8/19/2013 Petition to open/strike judgment filed by 

Solomon.

9/5/2013 Harleysville’s reply to the petition to 

open/strike.

3/14/2014 Order scheduling argument for April 24, 

2014.

5/7/2014 Order denying petition to open/strike.

Default judgment for failure to answer the complaint was 

entered on June 17, 2013. More than two months later, 

Solomon filed the petition to open/strike judgment. After 

argument, and reviewing the filings in this matter, the court 

denied Solomon’s petition.

Trial Court Opinion, (“T.C.O.”), 8/11/2014, at 1-3 (footnotes omitted; 

modified for clarity).

On May 30, 2014, Solomon timely filed a notice of appeal. On June 4, 

2014, the trial court directed Solomon to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Solomon timely 

filed her Rule 1925(b) statement on June 23, 2014. On August 11, 2014, 

the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).4

____________________________________________

3

In tandem with Solomon’s answer, Solomon also sought to consolidate 

the three matters spawned by the accident.

4 While Solomon’s concise statement was filed in a timely manner, the 

trial court noted that Solomon failed to comply with Rule 1925(b). T.C.O., 

8/11/2014, at 4. The court noted that, “[r]ather than providing a concise 

(Footnote Continued Next Page)
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Solomon raises the following issue for our review: “Did the court 

improperly deny [Solomon’s] [p]etition to [o]pen/[s]trike [d]efault 

[j]udgment in this matter?” Brief for Solomon at 4. Preliminarily, we note 

that Solomon provided no argument in her petition in support of striking the 

default judgment. Furthermore, Solomon notes in her brief that, she 

“cannot confirm that the [d]efault [j]udgment was properly taken in this 

matter. [Solomon] has no evidence that it was not. Accordingly, [Solomon] 

is only arguing that the [d]efault [j]udgment should be [o]pened based upon 

the equities of the situation.” Brief for Solomon at 13 n.7. Therefore, this 

Court will consider only the merits of Solomon’s equitable challenge to the 

trial court’s refusal to open the judgment.

The legal standard governing our review is as follows:

A petition to open a default judgment is addressed to the 

equitable powers of the court and the trial court has discretion to 

grant or deny such a petition. The party seeking to open the 

default judgment must establish three elements: (1) the 

petition to open or strike was promptly filed; (2) the default can 

be reasonably explained or excused; and (3) there is a 

meritorious defense to the underlying claim. The court’s refusal 

to open a default judgment will not be reversed on appeal unless 

the trial court abused its discretion or committed an error of law. 

An abuse of discretion is not merely an error in judgment; rather 

it occurs when the law is overridden or misapplied, or when the 

judgment exercised is manifestly unreasonable or the result of 

partiality, prejudice, bias or ill-will. Moreover, [the Superior] 

(Footnote Continued) _______________________

statement, [Solomon] instead filed a narrative of events in a numbered 

paragraph form.” Id. We agree. However, the trial court elected to 

address the issue that Solomon raises on appeal. Accordingly, we will 

review the trial court’s decision on the merits.
J-A02026-15

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Court must determine whether there are equitable 

considerations [that] weigh in favor of opening the default 

judgment and allowing the defendant to defend the case on the 

merits. Where the equities warrant opening a default judgment, 

[the Superior] Court will not hesitate to find an abuse of 

discretion.

Stabley v. Great Atl. & Pac. Tea Co., 89 A.3d 715, 719 (Pa. Super. 2014) 

(citation omitted). Critically, “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.” Myers v. Wells Fargo Bank, N.A., 

986 A.2d 171, 176 (Pa. Super. 2009) (emphasis added).

With regard to the first element that Solomon must prove—that the 

petition to open was promptly filed—the trial court explained as follows:

Establishing that the petition to open was promptly filed is one of 

the requirements in order to obtain relief from a default 

judgment. There is no established statutory time limit within 

which a petition to open must be filed in order to be considered 

timely. Appellate court decisions, however, have found petitions 

to open filed less than one month after entry of a default 

judgment to be prompt. See Kelly v. Siuma, 34 A.3d 86, 92 

(Pa. Super. 2011) (citations omitted). Further, whether a 

petition to open is promptly filed “is measured from the date that 

notice [is received of the entry of default judgment].” Alba v. 

Urology Associates of Kingston, 598 A.2d 57, 58 (Pa. Super. 

1991) (citing Ruczynski v. Jesray Constr. Corp., 326 A.2d 

326, 328 (Pa. 1974)).

The record reflects that Solomon was served with the complaint 

on May 6, 2013. Forty-two days later, default judgment was 

entered on June 17, 2013, along with an affidavit of non-military 

service, notice pursuant to Pa.R.C.P. 236, and a copy of the tenday-notice. Solomon’s petition to open, filed sixty-three days 

after entry of default judgment on August 19, 2013, was clearly 

untimely. As provided in Kelly, “[i]n cases where the appellate 

courts have found a ‘prompt’ and timely filing of the petition to 
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open a default judgment, the period of delay has normally been 

less than one month.” 34 A.2d at 92 (citations omitted).

T.C.O., 8/11/2014, at 7-8 (footnote omitted; modified for clarity). 

We agree with the trial court that delays in excess of a month—and, 

not infrequently, delays of less than a month—have resulted in 

determinations of untimeliness. See, e.g., Wells Fargo Bank, N.A., v. 

Vanmeter, 67 A.3d 14, 18 (Pa. Super. 2013) (noting that, in McCoy v. 

Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa. 1973), a two and onehalf-week delay was deemed insufficiently prompt); Kelly, supra. Although 

we have identified no cases that address the situation presented in this case, 

where the defendant filed an untimely answer in lieu of a petition to open on 

July 2, 2014 (fifteen days after entry of default judgment), we are aware of 

no precedent, nor any equitable principle, that requires us to grant clemency 

for that misstep when the defendant does not file a petition to open until 

approximately eight weeks after the entry of judgment, especially when, 

during the interim, counsel learned at least of the existence of the complaint 

and filed an answer thereto, evidently without first consulting the docket. 

Indeed, that Solomon’s counsel evidently understood as early as July 2, 

2014, that an action was pending that required a response undermines the 

notion of promptness: To have filed an answer in a previously overlooked 

action without having consulted the docket to determine the case’s 

procedural posture appears to us to be a material error of omission. 
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Accordingly, we find no abuse of discretion in the trial court’s determination 

that Solomon’s petition was not promptly filed.

The second prong of the standard for opening a default judgment 

requires that Solomon demonstrate that she had a reasonable excuse or 

explanation for failing to file a responsive pleading in the time allotted. 

Solomon’s argument attributes her delay to a lack of professional courtesy 

on the part of opposing counsel. Specifically, she submits, without any 

support in the record, that the parties had been engaged in discussions as 

early as December of 2011, yet Harleysville did not alert counsel that it was 

filing suit or, later, that it was seeking a default judgment in the absence of 

a timely responsive pleading. Brief for Solomon at 5; see also Brief for 

Solomon at 6-7 (“The only reason a more timely Petition to Open Default 

Judgment was not filed was because Appellant’s counsel initially filed an 

Answer to the Complaint [that] was accepted by the [trial c]ourt and had no 

reason to believe, therefore, [that] a default judgment had been entered.”). 

Because counsel did not receive the putative courtesy of a direct 

communication regarding the filing of the complaint, nor informal notice of 

the default,5 Solomon argues that she acted reasonably in filing an untimely 

answer rather than a petition to open. Id. at 13-17.

____________________________________________

5 Because counsel for Solomon did not enter an appearance on behalf of 

Solomon until after the entry of a default judgment, we are unaware of any 

rule requiring notice to counsel of any legal actions Harleysville took against 

Solomon. Solomon concedes the absence of such a rule. Brief for Solomon 

(Footnote Continued Next Page)
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Taking Solomon’s claims at face value—not least, because they are not 

disputed by Harleysville—we do not disagree that the events described 

suggest what might fairly be identified as sloppiness or discourtesy on the 

part of Harleysville, although we are unwilling on this record to credit 

Solomon’s assertion that this was part and parcel of a “pattern of behavior” 

designed to prevent Solomon’s counsel from knowing about the suit, see id.

at 14, ignorance more fairly attributed to Solomon, who failed to apprise her 

own attorney that she had been served with the instant complaint.6 To the 

extent that Solomon and Harleysville had engaged in discussions concerning 

the underlying incident, it would seem reasonable to expect such courtesy. 

However, we are unaware of any rule that required Harleysville to act 

differently than it did. Moreover, that Solomon does not challenge the 

propriety and adequacy of service, highlights the fact that, despite having 

(Footnote Continued) _______________________

at 14 (“Even though there is no legal requirement to provide notice of 

something of this nature, the silence in failing to provide [Solomon’s] 

counsel notice that a [d]efault [j]udgment was filed continued a pattern of 

behavior from [Harleysville’s] counsel where they purposefully kept quiet in 

hopes of not having [Solomon’s] counsel learn of the posture of this case.”).

6 Solomon claims that, during argument before the trial court, which 

was not transcribed, Harleysville described its failure to provide notice to 

Solomon’s counsel as a product of “inadvertent neglect.” Brief for Solomon 

at 14 n.8. This provides just one of numerous instances in which Solomon 

describes events and exchanges that occurred at the untranscribed 

proceedings. See id. at 5 n.1, 6 n.4, 7 n.5, 8 n.6, 14. We may not consider 

any evidence that is not found in the certified record. In re J.C., 5 A.3d 

284, 288 (Pa. Super. 2010). Accordingly, these comments are of no use to 

us. 
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received the complaint, and despite already having retained counsel in 

connection with the related lawsuits, she failed to inform her attorney of the 

pending complaint in a timely fashion.7 

In light of these events, the trial court concluded as follows:

[Solomon] has established no reasonable excuse for her failure 

to file a timely answer to the complaint. The complaint included 

the requisite notice to plead. The notice language on the 

complaint’s cover sheet specifically included the warning that by 

failing to take action within twenty days, “the case may proceed 

without you and a judgment may be entered against you by the 

court.” The record provides that [a person in charge of 

Solomon’s residence] was served with the complaint by the 

Sheriff on May 6, 2013. There is no explanation for [Solomon’s] 

lack of response. There is also nothing of record to explain the 

delay between the entry of default judgment on June 17, 2013, 

and the filing of the petition to open sixty-three days later on 

August 19, 2013.

Further, [Solomon’s] attorney claims that in preparing to draft a 

motion to consolidate the within matter with a related action 

filed by Solomon captioned Solomon v. Mamadou, he became 

aware of the default judgment. Clearly, Solomon’s attorney was 

aware of the present case because he was preparing to file a 

motion to consolidate. . . . [Solomon] has provided no 

reasonable excuse for her failure to file a timely answer to the 

complaint.

T.C.O., 8/11/2014, at 9-10 (footnotes omitted; modified for clarity).

____________________________________________

7

This is reinforced by the fact that Solomon’s counsel has indicated that 

he only learned of the instant lawsuit when he was reviewing dockets in 

preparing a motion to consolidate the three cases—i.e., that even as of some 

period spanning May 6, 2013, when she received service, June 11, 2013, 

when she filed her own suit, and July 2, 2014, when counsel filed her 

untimely answer, she had not yet informed her attorney that she had been 

served with the instant complaint.
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While the trial court determined that Solomon also had failed to 

establish the final element—the showing of a meritorious defense—we need 

not review that conclusion. Because the trial court did not abuse its 

discretion in finding that Solomon failed to satisfy the other two elements 

required to prevail on her petition to open, she is not entitled to relief 

independently of the merit of her proposed defense. See Myers, 986 A.2d 

at 176. While the unusual circumstances of this case give us pause, in light 

of the case’s timeline and the soundness of the trial court’s reasoning, we do 

not find that the court abused its discretion in denying Solomon’s petition to 

open. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/2015