Roy by and through Roy v. Rue, 1598 EDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY STEVENS, P.J.E.
Parties Joseph ROY, BY AND THROUGH his guardian Dorothy ROY v. Robert RUE, Hammerheads Sports Bar and Grille, JJJ Family Restaurant, Pat's 3517, Inc. Appeal of: Robert Rue
Docket Number1598 EDA 2021
Decision Date12 April 2022

273 A.3d 1174

Joseph ROY, BY AND THROUGH his guardian Dorothy ROY
v.
Robert RUE, Hammerheads Sports Bar and Grille, JJJ Family Restaurant, Pat's 3517, Inc.

Appeal of: Robert Rue

No. 1598 EDA 2021

Superior Court of Pennsylvania.

Submitted March 7, 2022
Filed April 12, 2022


Nicholas L. Palazzo, Philadelphia, for appellant.

Michael A. DeFino, Philadelphia, for appellant.

Christopher T. Moyer, Philadelphia, for Joseph Roy, appellee.

Robert F.V. Hohenstein, Philadelphia, for Pat's 3517, Inc., appellee.

Charles B. Stokes, Philadelphia, for Pat's 3517, Inc., and Hammerheads Sports Bar and Grille, appellee.

JJJ Family Restaurant, Inc., Philadelphia, appellee, pro se.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:

Appellant, Robert Rue ("Mr. Rue"), appeals from the June 22, 2021, order entered in the Court of Common Pleas of Philadelphia County, which denied Mr. Rue's petition to open and strike the default judgment entered against him and in favor of Appellee, Joseph Roy ("Mr. Roy"), by and through his guardian, Dorothy Roy ("Ms. Roy").1 After a careful review, we affirm.

The relevant facts and procedural history are as follows: On March 3, 2011, Ms. Roy, the guardian of Mr. Roy, filed a complaint alleging that, during the late evening of April 23, 2010, and into the early morning hours of April 24, 2010, Mr. Roy was a patron of the JJJ Family Restaurant/Hammerheads Sports Bar and Grille ("Hammerheads"),2 which is a bar and restaurant located in Philadelphia. Ms. Roy averred that, during this time, Hammerheads served alcohol to Mr. Rue, who was visibly intoxicated.

Ms. Roy alleged a disturbance broke out inside of Hammerheads, and several patrons, including an acquaintance of Mr. Roy, were escorted out of the establishment by Hammerheads’ employees. Mr.

273 A.3d 1179

Roy was neither involved in this disturbance nor escorted out of the establishment.

However, upon discovering his acquaintance was outside, Mr. Roy exited Hammerheads and stood on the sidewalk in front of the establishment when a group of people, including Mr. Rue, began to argue. Without warning or provocation, Mr. Rue violently struck Mr. Roy in the back of the head, thereby causing catastrophic injuries to Mr. Roy, who, as of the time of the filing of the complaint, was in a permanent vegetative state and dependent upon a ventilator. Mr. Roy subsequently died on May 4, 2020.

In the complaint, Ms. Roy raised claims of negligence against Hammerheads, as well as claims of assault and battery against Mr. Rue. An affidavit/return of service reveals Ms. Roy used a process server, Jodi Broder, who served the complaint on Mr. Rue at 3260 Teesdale Street Apt. 2, Philadelphia, PA ("the Teesdale Street residence") on March 11, 2011, at 9:25 p.m., by handing it to an "[a]dult family member with whom said Party resides[:] Debbie Rue" ("Ms. Rue"), who was later identified as Mr. Rue's mother.3 See Affidavit/Return of Service, filed 3/12/11. Additionally, an affidavit/return of service reveals Jodi Broder served Ms. Roy's complaint on Hammerheads at 3517 Cottman Avenue on March 11, 2011, at 9:45 p.m., by handing it to Danny Dragoni, an agent in charge of the party's office or usual place of business.

On April 5, 2011, counsel for Hammerheads entered her appearance, and on June 14, 2012, Hammerheads filed an answer with new matter and a crossclaim. Ms. Roy filed a reply to the new matter on June 29, 2012.

Having received no answer from Mr. Rue, Ms. Roy filed a ten-day notice of intent to enter default judgment pursuant to Pennsylvania Rule of Civil Procedure 237.1. The ten-day notice was served upon Mr. Rue on June 9, 2012, by certified mail return receipt requested and by regular mail addressed to the Teesdale Street residence. Mr. Rue had ten days to respond, and he failed to do so.

Accordingly, on June 22, 2012, Ms. Roy filed a praecipe to enter default judgment against Mr. Rue, and the trial court entered a default judgment against Mr. Rue on June 22, 2012. The notice of entry of default judgment was served upon Mr. Rue on June 22, 2012, by certified mail return receipt requested and by regular mail addressed to the Teesdale Street residence.

On January 7, 2013, the trial court filed an order indicating that an assessment of damages trial against Mr. Rue would take place on January 16, 2021, at 9:30 a.m. The trial court informed Mr. Rue that if he failed to appear the damages trial would take place in his absence. The certified docket entries contain a notation that notice of this order was provided under Pa.R.Civ.P. 236 on January 8, 2013.

Mr. Rue failed to appear for the assessment of damages trial, and on January 18, 2013, a verdict of damages was entered against Mr. Rue in the amount of $23,206,444.85. Specifically, the trial court's verdict sheet reveals $21,206,444.85 for economic damages and $2,000,000.00 in pain and suffering. The certified docket entries contain a notation that notice of

273 A.3d 1180

this verdict was provided under Pa.R.Civ.P. 236 on January 18, 2013.4

On February 18, 2021, Mr. Rue filed a petition to open the default judgment.5 Therein, Mr. Rue averred he was incarcerated when the trial court held the assessment of damages trial, and he did not appear for the trial because he had no notice thereof. Mr. Rue acknowledged the docket reveals the Prothonotary provided notice of the damages trial pursuant to Pa.R.C.P. 236(b). However, he noted the address listed for him on the docket was the Teesdale Street residence, but at the time of the damages trial, he was in prison. Petition to Open, filed 2/18/21, at ¶ 22. Accordingly, he contended he never received notice of the assessment of damages trial.

He further averred he was not properly served with original process. Mr. Rue acknowledged that Ms. Roy served the complaint on his mother at the Teesdale Street residence. However, he indicated he was "out on bail at the time the complaint was originally served....and he was not residing with his parents at [the] Teesdale Street [address]." Id. at ¶¶ 9-10. Instead, Mr. Rue averred he "believes he was either residing at 8214 Craig Street Philadelphia or at an apartment within the St. Ive's Apartment Complex (not on Teesdale Street) [when the complaint was served]." Id. at ¶ 10.

Mr. Rue attached to his petition signed affidavits from his mother, father, and sister indicating that Mr. Rue was not living at the Teesdale Street residence at any time during 2011. Mr. Rue also attached to his petition the deed to the Teesdale Street property, which revealed Mr. Rue's father, "Robert Rue", was the owner of the property. Id. at ¶ 10.

Mr. Rue suggested the confusion in this case occurred because he and his father have the same name, and while his mother, who accepted service of the complaint, lived at the Teesdale Street residence with a "Robert Rue," it was his father and not him. Id. at ¶ 12. He further suggested his mother was not competent to accept service since she was struggling with addiction and mental illness, and she simply ignored the complaint without informing her son, Mr. Rue, that it had been served at the Teesdale Street residence. Id. at ¶ 14. Thus, Mr. Rue contended he never received notice of the complaint.

Mr. Rue averred the "situation" become "worse" when, in May of 2012, a jury convicted him of several crimes in connection with the injury to Mr. Roy, and his bail was revoked. Id. at ¶ 15. He averred Ms. Roy was present in the courtroom when the jury returned a guilty verdict on May 24, 2012, and therefore, she should have been aware that he was in prison when she mailed the ten-day notice of intent to enter default judgment to the Teesdale Street residence on June 9, 2012. Id. at ¶¶ 16-18. Mr. Rue indicated he never received the notice since he was in prison. Id. at ¶ 20.

In summary, Mr. Rue averred:

At all times material, [Mr. Rue] never resided at Teesdale Street when the
273 A.3d 1181
complaint was filed and served on his mother; and he resided in a correctional facility when the notice of intent to take default was sent to Teesdale Street while [he was] awaiting sentencing from May until July of 2012. He then resided in a Western PA prison from approximately July 12, 2012[,] until June 2013. During all of this time, despite knowing with certainty that [Mr. Rue] did not reside at Teesdale Street beyond May 24, 2012, [Ms. Roy] took zero steps to correct [Mr. Rue's] address on the docket to reflect what [Ms. Roy] knew was his proper address; i.e. , within a PA Correctional Institution.

Id. at ¶ 20. Thus, he contended he has a reasonable explanation for failing to file an answer. Id. at ¶ 29.

Additionally, Mr. Rue suggested he promptly filed his petition to open after he received notice of the entry of the default judgment. In this vein, he contended he "only recently" learned of the entry of the default judgment on December 29, 2020, when he was served with post-judgment interrogatories. Id. at ¶ 30. Mr. Rue suggested that Ms. Roy "did nothing in terms of attempting to collect on the civil judgment from 2013 until the end of 2020." Id. at ¶ 36. Further, Mr. Rue averred he has a...

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