### J - S16028 - 16

NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 EZRA REUVEN IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DARIUS MASON AND VEN EZLA MASON Appellants No. 1818 EDA 2015 Appeal from the Order Entered May 18 , 2015 In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 150202815 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY OTT, J.: FILED JUNE 22, 2016 Darius Mason and Venezla Mason (Masons) appeal from the order entered on May 18, 2015, in the Court of Common Pleas of Philadelphia County, denying their appeal of the Municipal Court’s denial of their motion to open or strike j udgment in favor of Ezra Reuven (Reuven). In this timely appeal, the Masons claim the Court of Common Pleas erred in failing to recognize the judgment was defective on its face due to lack of service of the underlying complaint and lack of Municipal Court jurisdiction due to the amount of damages sought. Additionally, the Masons argue the Court of Common Pleas failed to recognize the underlying judgment should have been opened because Reuven failed to present any evidence supporting the

### J - S16028 - 16

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judgment. After a thorough review of the Appellants’ brief, 1 

### the certified record and relevant law, we affirm on the basis of the trial court opinion, dated June 25, 2015, authored by the Honorable Nina Wright Padilla. We glean the underlying facts from the certified re cord. The Masons had an oral lease with Reuven regarding the property located at 537 N. 35 th 

### Street, Philadelphia, Pennsylvania, more commonly known as the Easy Corner Bar. In 2013, the Masons fell behind on the rent and allegedly caused damage to the pr operty. Reuven filed suit against the Masons, seeking a judgment of possession and a money judgment of more than $9,000.00 in unpaid rent and more than $42,000.00 to repair the property. The total amount of damages claimed was $52,568.18. This action wa s brought as a landlord/tenant lawsuit in the Philadelphia Municipal Court. The Masons were served notice of the suit by posting the premises. The Masons did not appear for trial and judgment was entered on December 17, 2013, in favor of Reuven for $52 ,700.68. 2 

### Reuven was also awarded possession of the property. Eight months later, on August 26, 2014, the Masons filed a petition to open judgment, which was voided on September 9, 2014, due to their failure to act. Four months later, on December 30, 20 14, the Masons filed another petition to open judgment,

____________________________________________ 1 

### The Appellee, Ezra Reuven, did not file a brief. 2 

### The judgment represents the amount sought in damages plus $132.50 in costs.

### J - S16028 - 16

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which was denied on February 6, 2015, in the Municipal Court following a hearing. On February 25, 2015, the Masons filed an appeal of that denial with the Court of Common Pleas. On March 27, 2015, t he Masons filed a motion to open or strike the Municipal Court judgment, claiming the Municipal Court lacked jurisdiction due to a failure to serve original process and because the amount sought exceeded the jurisdictional limits of the Municipal Court. A dditionally, the Masons claimed that Reuven had not presented any admissible evidence to support the claim for damages. Our standard of review regarding a petition to strike is: A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record.... An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered. Cintas Corporation v. Lee’s Cleaning Services, Inc. , 549 Pa. 84, 89 - 90, 700 A.2d 915, 917 (1997) ( quoting Resolution Trust Corporation v. Copely Qu - Wayne Associates , 546 Pa. 98, 106, 683 A.2d 269, 273 (1996)). In determining whether fatal defects exist on the face of the record for the purpose of striking a judgment, a court may look only at what was in the record when the judgment was entered. Cintas Corporation , supra at 90, 700 A.2d at 917. We review a trial court's refusal to strike a judgment for an abuse of discretion or an error of law. Frontier Leasing Corporation v. Shah , 931 A.2d 676 (Pa. Super. 2007). Knickerbocker Russell Co., Inc. v. Crawford , 936 A.2d 1145, 1146 - 47 (Pa. Super. 2007). Regarding the denial of a petition to open, we are required to,

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examine the entire record for any abuse of discretion, reversing only where the trial court's findings are inconsistent with the clear equities of the case. Moreover, this Court must determine whether there are equitable considerations which require that a defendant, against whom a default judgment has been entered, receive an opportunity to have the case decided on the merits. Where the trial court's analysis was premised upon record evidence, where its findings of fact were deductions from other facts, a pure result of reasoning, and where the trial court made no credibility determinations, this Court may draw its own inferences and arrive at its own conclusi ons. Finally, where the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion. Reid v. Boohar, 856 A.2d 156, 159 (Pa. Super. 2004) (citation omitted). 3 

### As noted above, the trial court opinion ably discuss es and disposes of the Masons’ arguments. Our review of the certified record discloses no abuse of discretion or error of law therein. Accordingly, we rely upon the sound reasoning of the Honorable Nina Wright Padilla. 4 

### Order affirmed. Parties are di rected to attach a copy of the trial court opinion in the event of further proceedings.

____________________________________________ 3 

### We join in the trial court reminding counsel for the Masons that a petition to strike and petition to open are distinct claims seeking “distinct remedies and generally are not interchangeable.” Aquilino v. Philadelphia Catholic Archdiocese , 884 A.2d 1269, 1280 (Pa. Super. 2005). 4 

### We note the Masons’ argument that while Reuven styled the action as landlord - tena nt, “that action was actually one for damages arising out of [the Masons] claimed destruction of Reuven’s property.” The Masons’ Brief, at 13. However, Judge Wright Padilla determined the action was properly brought in the Municipal Court as a landlord/t enant action which does not have a jurisdictional upper limit to damages and the Masons have provided no case law that overcomes that determination.

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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/2016

# I 

# I Ill I 11111111111111111 15020281500020 1 Thi s i nformation was obtainable on l y from th e Munic i pal Court t ran s c r ipt. See, Notes of T e sti m ony 2/6/ 15 at 6-7 . 2 Counsel entered h is appearanc e O ctobe r 9, 2014 but did not fil e h is petit i on un til De c embe r 30, 2 0 14
. 1 Reuven Vs Ma s on Etal - OPFLD Court
. 

### 30, 2014
. 2 T he second pet i tion was denied February 

### 6, 2015, following a hear i ng befo re t he Municipa l 

### 2014, following the i r failure to act 1 and a counse l ed Petition to Open Judgmen t by defaul t on Dece mb e r Petit i on to Open Judgment i n Muni ci pal Court on August 

### 26, 2014 which was vo i ded on Septe m be r 9, Appellee obta i ned a judgment by defau l t on De ce m be r 

### 17, 2013
. Appellants filed a prose N
. 

### 35th Street, Philadelph i a, Pennsylvan i a . premises
. Service was eff e ctuated on Appe l lants on Nove m be r 

### 21, 2013, by pos t ing t he addre ss of 

### 537 which Appe ll ee, Ezra Reuve n, sought to recover 

### $52,568
. 18 in da m ages and re gain possession of t he The unde r lying Municipa l Court case was a l andlord - tenant action filed N ovember 

### 13, 2013, in judgment. On February 

### 25, 2015, Appellants co m menced t h i s act i on by appealing fro m a Mun ici pal Court



### FACTS AND PROCEDURAL HISTORY Open Judgment. App e llants, Darius and Venezia Maso n , appea l from t hi s Court's O rder deny i ng t he i r Pet i t i on t o 

## ' OPINION DARIUS MASON and VENEZLA MASON C iv il Divi sion Feb r uary Te r m 

### 2015 , No
. 

### 28 ! 5 

## v. SUPERIOR COURT No
. 

### 1818 EDA 

### 2015 EZRA REUVEN IN THE COURT OF COMMON P L EAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COPIES SENT PURSUANT TO Pa.R.C.P. 236(b) 06/26/2015 Received 07/29/2015 Superior Court Eastern District Filed 07/29/2015 Superior Court Eastern District 1818 EDA 2015 Circulated 05/23/2016 11:34 AM2

On March 27, 2015, Appel l ants fi l ed a Motion to Str i ke/Open the Mun i c i pa l Court judgment, arguing that the Municipal Court was without jur i sd i ction to enter the underl y i ng judgment as i t was not a landlord-tenant matter; that the judgment was defective as service had not been perfected on defendants; that the Munic i pal Court l acked jurisdict i on because the matter i n controversy exceeded the Munic i pal Court's jurisdictiona l maximum; t h at the Municipal Court had fa il ed to take adm i ss i b l e and/or testimonial substantiating evidence; that Appellants had no not i ce of the heari ng; and that the complaint was defective as it had not attached t h e lease or other accompanying documents necessary for a landlord-tenant compla i nt. On April 20, 2015, Appellee filed an Answer in Oppos i t i on to Appel l ants' Motion to Strike, arguing that neither the instant Pet i t i on nor any of Appellants' Municipa l Court Pet i tions had been timely filed, nor had Appellants offered a reasonab l e excuse for fai li ng to attend the hear i ng i n Municipal Court. Further, Appellee argued that Appel l ants had not al l eged that a review of the Municipal Court record had demonstrated that the Court abused i ts d i scretion in denying the Petit i on. Appellee denied all of Appellants' averments. On April 22, 2015, Appellants fi l ed a Memorandum in Support of their Motion to Strike, arguing that Appellants had not been properly served as service was effectuated by post i ng a property that had been vacated, and additionally argu i ng that Appellee's response shou l d be stric ken as non-Local Ru l e compliant. On May 18, 2015, fo l lowing a review of the re l evant p l eadings as well as the record, th i s Court den i ed Appellants' Motion to Strike. On June 3, 2015, Appe ll ants filed a ti m ely Notice of Appea l to the Superi or Court of Pennsylvania. On June 5, 2015, th i s Court i ssued its Order pursuant to Pa
. R
. A
. P. 1925(b), d i rect i ng Appe l lant to file h i s Concise Statement of Matters Compla i ned of on Appea l w i thin twenty - one (21) days.3 DISCUSSION This matter is an appeal from a lower court order denying Appellants' Petition to Stri ke and/o r Open Judgment. A supplementary order granting or denying a pet i t i on to open a defau l t judgment i s appea l able to the Court of Common Pleas, but the appea l is limited to a rev i ew of the record
. Ph il a.Civ
. R
. 1001(a)(3). T he time to file an appea l from a supplementary order i s wit hi n t hi rty (30) days after the date of the entry of the order on the dockets of the Mun i cipal Court
. Phila.C iv . R. 1001(c)(5)
. Such an appeal proceeds as a motion pursuant to Pa.R
. C.P. 208
. 1 

## et seq. and Phila.C iv . R
. * 208
. 2(c) 

## et seq. , and the appeal is limited to a determ i nat i on by this Court whether the Mun i c i pa l Court committed an error of law or abused its d i scretion in ru l ing on t h e petition or motion which is the subj ect of the appeal. Upon the issuance of a disposit i ve order by the Court of Common P l eas, t h e act i on shal l be remanded to the Municipal Court for furt h er proceedings cons i stent with the Order
. P hil a.C iv . R
. 1001(9)(2). Appellants' Petition to Stri ke and/or Open Judgmen t was den i ed Feb r uary 6, 2015 , and their appeal to this Court timely fi l ed on February 25, 2015
. On review, this Court i s li m it ed t o a review of the record and whether or not the Mun ici pa l Court comm i tted an error of law or abused its d i scret i on i n its Order deny i ng Appellants' Petition
. On June 23, 2015, Appe ll ant filed a time ly Statement of Matters Comp l ained on Appea l , averring that this Court erred : in denying the motion to str ike and/or open judgment; i n not finding that the judgment was defective on its face as the judgment had been entered i n Mun i cipal Court as a landlord-tenant matter when the amount i n controversy exceeded the Munic i pal Court's jurisd i ct ional limits; in denying the motion when the underl y i ng judgment was "entered upon a hearing wit h no evidence presented" and the compla i nt fai l s to conform to Munic i pal Court requ i rements; and i n refusing a requested evidentiary hear i ng . 

# ________ ,.. ,__

,....,.,. ... .--- - · -lit~-·- - -- - --- - ·

j· ·- --- - - --- -~ -4

To obtain relief from the entry of a defaul t judgmen t, t he law prov i des two d i st inct remedies - an aggrieved party may fi l e a petition to str i ke the defau l t j udgment and/or a pet i tion to open the defa ul t judgment. Mother's Rest. Inc. v. Krystkiewicz, 2004 PA Super 411, 861 A
. 2d 327, 336 (Pa. S u per. Ct. 2004)
. Th ey are generally notinterchangeable; a pet i t i on to str ike does not involve the discret i on of the court but is a demurrer to the record. Id A petition to open j udgment, on the other hand, is an appea l to the equitab l e powers of the court. Id The standard of appellate rev i ew is that of ab u se of d i scret i on with regard to the petition to open on ly; the court's decision wi ll not be reversed absent an abuse of discret i on or error of l aw . Erie Ins. Co. 

### v. Bullard, 2003 PA Super 448, 839 A
. 2d 383, 386 {2003)
. I. DENIAL OF PETmON TO STRIKE As noted a b ove, a petit i on to str i ke i s a de m urrer to the record. Mother's 

### Rest; Inc., 86 1 A
. 2d at 336
. Such a demurrer "ad m its a l l we ll- p l eaded facts for the purpose of testing conclus i ons of law d rawn fro m those facts," and the court may on ly look at the facts of record at the time the judgment was entered to decide i f the record supports the judgment. Id A petition to strike may be granted on ly i f a f atal d efect appears on the record. Id See also U.K. LaSalle/ Inc. 

### v. tswtess. 421 Pa.Super. 496, 6 1 8 A. 2d 447 (1992)
. "Important ly, a petit i on to stri ke is not a chance to review the merits of the a ll egations of a co m p l aint. Rather, a petition to strike is aimed at defects that affect the valid i ty of the j u dg m ent and t h at entitle the petit i oner, as a matter of l aw, to re l ief
. " Oswald 

### v. WB Pub. Square A ssocietes. LLC, 2013 PA Super 289, 80 A.3d 790, 794 (2013)
. A petition to strike does not involve the discretion of the court. Triangle Printing Co. v. Image Quest 730 A.2d 998, 999 (Pa. Super
. 1 999). Appe ll ants argue that this Court shou l d have stricken the judgment of the record as defects were evi dence on t h e f ace of the record, namely : the amount in controversy exceeded the M unicipal Co u rt's jurisdict i ona l limits; because service was not made on Appe l l ants; and that the Comp l aint fai l ed5

3 In Appellant's original petition, the on l y defects Appellant challenged w i th regard to the Comp l aint were " i t did not even attach the claimed violated l ease nor other accompany i ng documents requ i site to file a putative (den i ed) l andlord-tenant complaint before the Munic i pal Court." See Appellants' Pet i tion to Stri ke, ,i 7(f). 4 See 42 Pa
. C.S
. § 1123. 5 See 68 P
. S. § 250.201. surrender possession; as well as po li ce reports and invo i ces of damages
. Again, as noted above, a Appellants were served at a Property where i t was averred that they were in possess i on and refused to under the Landlord T enant Act oral leases are perm i tted for leases less than three (3) years; 5 the subsection; 4 Appellee averred that a lease was not attached because i t was an oral lease, and matter in Municipal Court, which allows for judgments of more than 

### $5,000.00 i n matters ar i sing under of the record that would justify granting their petition. A comp l aint was filed in a landlord - tenant From an examination of the record Appellants have po i nted to no errors evi dent from the face scheduled for December 

### 1 7, 2013. comp l aints to be served by posting the leased premises. 

### See Phila
. M
. C.R. C iv.P
. 111. A hearing was posting the property, pursuant to the Phi l ade l phia Mun i cipa l Court ru l es which allow for l and l ord-tenant made on Appellants on November 

### 21, 20 1 3 at 

### 537 N. 

### 35th Street, Philadelphia, Pennsylvania, by of service upon Appellants were filed November 

### 27, 2013. Said affidav i ts ind i cated that serv i ce was l andlord - tenant action. A non-military affidavit was filed the same day as the Compla i nt, and affidav i ts police report fi l ed by Appellee against Appellants
. T he case was docketed i n M un i cipa l Court as a unpaid rent as well as other damages i ncurred by Appellee, an i nvo i ce of the damages, as well as a possessionof the property
. T he Complaint included an attached exh i b i t conta i n i ng item i zation of T he complaint averred that Appellants were in possess ion of the p r

operty and refused to surrender the l ease was a non-residential oral lea se that began June 

### 1, 2012 for a term of a year or more. was a lease between Appellants and h i mself at 

### 537 N
. 

### 35th Street, Philadelphia Pennsylvania, 

### 19104; A review of the record showed that the filed complaint prov i des that Appellee noted that there matter
. to conform to M unicipal Court requirements. 3 They argue that this case was not a landlord-tenant __________ ......_, _.,"'_ -·

__ ,_. __ _~ "' .,. ....,_,..;_ ~ -· -e ( _,_...,.... _.......,__._ '-- · · ·J, ,. ,. _._ . .._6

Petition to Strike is l imited to a review of the avai l ab l e record and i s not within the d i scretion of the Court
. A review of Phila. M
. C.R
. Civ
. P. 109 as we ll as the avai l ab l e record shows that the Comp l aint was substantia ll y in conformance with the Ru l es and that Appellants were properly served in accordance with Phila M
. C.R. Civ. P
. 111. Conseq u ently, the M unicipal Court d i d not err i n deny i ng Appel l ants' P et i tion to Str i ke, and neither d i d th i s Court err i n ref u sing to find an abuse of discretion in that dec i sion. II. 

### DENIAL OF PETITION TO OPEN Petitions to open judgment are appea l s to the d i scret i on of the tr i al court and will not be reversed a b sent a mani f est abuse of d i scretion or error of l aw . Erie Ins. Co. v. Bullard, 2003 PA Super 4 48, 839 A.2d 383, 386 (2003). Petit i ons to open judgment must show that: the petition was prompt ly fi l ed; the f ailure to appear or fi l e a time ly answer must be excusab l e; the party seek i ng to open the ju d g m e n t m u st show a m eri torious defense
. Mother's Rest./ Inc., 86 1 A.2d at 336. T he Court may consider f acts not before i t at the time judgment was entered. 

### Id. 

### a. Prompt Filing Th e time li ness of a petition to open i s measured from the date that not i ce of the entry of d efau l t was received; while there is not a specified time period, the court shou l d cons i der the length of t i m e between discovery of the entry of default, and reason for the de l ay . Myers v. Wells Fargo Ban~ N. A ., 2009 PA Super 24 1 , 986 A.2d 171, 176 (2009)
. Appellants do not aver when they d i scovered the de faul t ju dgment. Judgment was entered D ecember 17, 2013 and the first P etition to Open was fi l ed A ug ust 26, 2014
. T hus, a time period of two hundred fifty-two (252) days passed between the entry of J udg m e n t and t h e first Pet i tion to open. Appellant then fi l ed a counse l ed pet i t i on on D ecember 30, 20 1 4, t h ree h undred seventy-e i ght (378) days after the entry of the default judgment. Again, as Appe l lants have not averred when they discovered the entry of judgment, this Court cannot say w i th certainty whether the filing was prompt. However, from the docket alone, i t appears7

b
. Reasonable Excuse Appellants cla i m that th ey d i d not re ce i ve serv ice of t h e Comp l a i nt nor d i d t h ey h ave not ice of the Court date. H owever, the record reflects that Appellants were served by post i ng of t h e Property of wh i ch they h ad possess i on on N ovember 2 1 , 2013, a l most a mont h pri or to t he court date
. T he Complaint itse l f had not i ce of sa i d Court date and, as noted above , t he leased pre m ises were pos t ed by a process server in a ccordance with the P hiladelp h ia M unicipa l Court ru l es. Consequent ly, Appe l lants have not p l ead a reasonab l e excuse. 

### c . Meritorious Defense T he re q uirement of a meritorious defense i s on ly that a defense must be pleaded t h at i f proved at trial wou l d justify relief
. Smith v. Morrell Beer Distributor~ Inc., 2011 PA Super 1 83 , 29 A.3d 23, 26 (2011). A defendant m u st set forth such a de f ense in " p recise, spe ci fic, and clear ter m s . " 

### Id In t heir counseled petition before the Municipa l Court, A p pellants aver simp ly that t h ey are not li able in any respect, t h at t h ey are not i n breach of the l ease agreement but that Appe l l ee is i n breach of the lease agreement, and that Appellants were not the cause of the cl aimed damage
. However, i n their pet i tion, Appe ll ants made no argu m ent or averment as to w h y Appellee was in breach of t h e le ase agreemen t. T hus, Appellants are not entit l ed to open t h e defau l t judg m ent as th ey have not met t he req u iremen t s of the tripart i te test. 

### III . DEFECTS IN JUDGMENT Appe ll ants also aver that this Court erred in denying t h e mot i on when t h e " underl y i ng judgmen t was entered upon a heari ng w i th no ev i dence p resented." It i s dis i ngenuous of Appe ll ants to argue t h at no evidence was presented at the heari ng consider i ng that A p pe ll ants defau l ted. As noted above at l ength, when deciding a den i a l of a P et i t i on to Stri ke and/or Open Judgment based upon a decis i on of that the petition was not promptly fil ed and withou t furt h er explanat i on, Appellan t t h us fails t h e firs t prong.8

DATE : ~ 

# c ;l!f J 

## ;}!) 

# /5"° BY THE COURT : CONCLUSION For all of the reasons stated above, th i s Court's dec i sion should be affir m ed and Appellants' appeal dismissed. the Ph i lade l phia Mun i cipal Court th i s Court's examinat ion is li mi ted to t he reco rd
. Fro m the record alone , judgment was properly ente red
. IV. 

### HEARING Finally , Appellants aver that th i s Court e r red in refus i ng a requested evi dent i ary hearing. However, Appellants did not request an eviden t iary hearing anywhe re w i th i n the i r Pet i t i on. T hough a petitioner may seek the i ssuanc e of a Rule to Show Cause with such a pe t i t ion, pursuan t t o Pa.R.C.P. 206.S(b), Appellants did not attach a proposed o rder in t he form p rescribed by subdivi sion (d)
. Consequently, this Court d i d not er r in ruling upon Appellants' Pet i t i on w i thout hold i ng an eviden t iary hearing. 

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