Agency Ins. Co. v. Bacon

• Decision Date: 18 April 2023
• Docket Number: 274 EDA 2022,J-S33034-22
• Parties: AGENCY INSURANCE COMPANY A/S/O A BOB'S AUTO & TOWING, INC. v. RIAN E. BACON Appellant
• Court: Pennsylvania Superior Court

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AGENCY INSURANCE COMPANY A/S/O A BOB'S AUTO & TOWING, INC. v. RIAN E. BACON Appellant

No. 274 EDA 2022

No. J-S33034-22

Superior Court of Pennsylvania

April 18, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered December 16, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s) 210302965

BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.

MEMORANDUM

SULLIVAN, J.

Rian E Bacon ("Bacon") appeals from the order denying his petition to open the default judgment entered in favor of Agency Insurance Company a/s/o A Bob's Auto & Towing, Inc. ("A Bob's") in this subrogation action. We affirm.

The trial court set forth the relevant factual and procedural history as follows:

This dispute initially stems from a car accident involving [A Bob's] and [Bacon]. On March 30, 2021, [A Bob's] initiated this action by filing a complaint against [Bacon]. On April 8, 2021, [A Bob's] filed an affidavit of service that stated "I served the following documents on . . . Bacon . . .on . . . April 1, 2021 at 8:51 pm at 2341 W. Hagert Street, Philadelphia, PA 19132[,] by personal service by handing the following documents to an individua [sic] identified as Rian E. Bacon." The affidavit also [provided an "Additional Description," which] indicated that service was effectuated upon ". . . Bacon's sister[,] Makela[,] on Thursday evening 8:50am [sic] on April 1st, 2021." [The affidavit further indicated that the affiant/server asked Makela if Bacon lived at the residence and she said "yes." Makela also stated that she was Bacon's sister, and that she was over the age of eighteen. The affidavit described Makela as a "Hispanic or Latino Female, est. age 18, glasses: Y, Black hair, 160 lbs[.] to 180 lbs[.], 5'3" to 5'6." The affidavit was signed by the affiant/server and was notarized.] On April 23, 2021, a ten (10)[-]day notice of intention to file praecipe to enter default judgment was mailed to [Bacon] at 2341 W. Hagert Street. On May 4, 2021, after neither an appearance nor an answer was filed by [Bacon], default judgment was entered against [him] in the amount of $23,150. [The trial court docket reflects that notice of the entry of default judgment was given to Bacon on May 4, 2021, pursuant to Pa.R.Civ.P. 236 and 237.1. On July 13, 2021, a certification of motor vehicle judgment against Bacon was entered on the trial court docket.]

On November 15, 2021, [Bacon], through counsel, filed a petition to open default judgment. In the petition, [Bacon] claimed the address at 2341 W. Hagert Street was his mother's residence and [he] did not give permission to anyone at this address to accept documents on [his] behalf. [Bacon] further maintained that his correct address was 5805 Germantown Avenue, Philadelphia, PA.

On December 16, 2021, this court denied [Bacon's] petition to open default judgment. On December 22, 2021, [Bacon] filed a motion for reconsideration, which this court denied on December 29, 2021. On January 3, 2022, [Bacon] filed a notice of appeal from this court's order denying his petition to open default judgment. . . . [T]his court ordered [Bacon] to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days. [Bacon complied and the trial court thereafter filed an opinion pursuant to Rule 1925(a).]

Trial Court Opinion, 4/20/22, at 1-2 (footnotes and unnecessary capitalization omitted, formatting altered).

Bacon raises the following issues for our review:

1. Did the trial court commit an error of law in denying [Bacon's] petition to open default judgment by holding that [Bacon] did not act promptly and the petition was not timely filed?

2. Did the trial court commit an error of law in denying [Bacon's] petition to open default judgment by holding that [Bacon] did not present a meritorious defense?

Bacon's Brief at 4 (unnecessary capitalization omitted).

Our standard of review of a denial of a petition to open a default judgment is well-settled:

A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and we will not overturn that decision absent a manifest abuse of discretion or error of law.

Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 25 (Pa. Super. 2011).

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. See Myers v. Wells Fargo Bank, Nat'l Ass'n, 986 A.2d 171, 176 (Pa. Super. 2009); see also Pa.R.Civ.P. 237.3(b)(2) (providing that "[i]f 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"). "If a petition to open a default judgment fails to fulfill any one prong of this test, then the petition must be denied." U.S. Bank Nat'l Ass'n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 (Pa. Super. 2017) (citations omitted); see also Myers, 986 A.2d at 176 (holding that 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).

In his first issue, Bacon contends that the trial court erred in concluding that the petition to open was not promptly filed. Where, as herein, a petition to open is filed more than ten days after the entry of default judgment, the trial court must consider the length of time between the discovery of the entry of the default judgment and the filing of the petition to open, and determine whether the petitioner has demonstrated a legitimate excuse for the delay:

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. The law does not establish a specific time period within which a petition to open a judgment must be filed to qualify as timeliness. Instead, the court must consider the length of time between discovery of the entry of the default judgment and the reason for delay.

Myers, 986 A.2d at 176. In cases where the appellate courts have found a "prompt" and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month. See id. (citing Duckson v. Wee Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993) (holding that a delay of one day is timely); and Alba v. Urology Assoc. of Kingston, 598 A.2d 57 (Pa. Super. 1991) (holding that fourteen days is timely); Fink v. General Accident Ins. Co., 594 A.2d 345 (Pa. Super. 1991) (holding that a period of five days is timely)).

Bacon acknowledges that the petition to open was not filed until 195 days after the default judgment was entered on the docket.^[1] However, Bacon asserts that he offered a reasonable explanation for his six-month delay in filing his petition to open. According to Bacon, A Bob's failed to properly serve him with the complaint and the notice of intent to take a default judgment. Bacon claims that he was not present at the Hagert Street address at the time of the alleged service and did not give anyone at that address permission to accept service of any document on his behalf. Bacon points to the initial statement in the affidavit of service wherein it indicates that personal service was made by handing the complaint to Bacon himself, and claims that there is no description of Bacon, such as race, height, gender, or other characteristic to identify him.^[2] Bacon additionally claims that he did not reside at 2341 W. Hagert Street, which is his mother's address, and claims that he resided at 5805 Germantown Avenue in Philadelphia, as is reflected on a Pennsylvania Department of Transportation notice. Bacon points out that the copy of the certificate of mailing attached to the affidavit of service shows only one side of the certificate and reflects no signatures confirming receipt of the notice.

Bacon additionally claims that he mistakenly believed that Capital Insurance Company was protecting his interests regarding the property damage resulting from the motor vehicle accident until his insurance agent advised him that he was insured by Progressive Casualty Insurance Company at the time of the accident. Bacon maintains that he reported the accident to Progressive Casualty Insurance Company on September 13, 2021. Bacon indicates that his counsel entered his appearance in the matter on November 2, 2021, and thereafter filed a petition to open on November 15, 2021. On this basis, Bacon argues that his petition to open was promptly filed.

The trial court considered Bacon's first issue and determined that it lacked merit. The court reasoned:

In the instant case, [Bacon] fails to meet the first element required to open a default judgment because his petition to open default judgment was not filed until [195] days after the default judgment was entered. This court notes that there have been numerous binding cases that have found similar delays to be unreasonable. Although there is no bright line rule or specific time period in ruling a delay unreasonable the circumstances of this case in tandem with controlling case law strongly indicate that [Bacon's 195-]day delay is unreasonable.

In American Express v. Burgis, [476 A.2d 944 (Pa. Super. 1984),] a defendant attempted to argue that service by a deputy sheriff was improper[;] however[,] the Superior Court found that defendant's two

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