Abdalla, A. v. Algarf, E.

J. S21031/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ABDELMONIEM ABDALLA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

EMADADDIN ALGARF, : No. 2519 EDA 2018

:

Appellant :

Appeal from the Order Entered August 24, 2018,

in the Court of Common Pleas of Delaware County

Civil Division at No. CV-2013-009303

BEFORE: STABILE, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 26, 2020

Emadaddin Algarf (“appellant”) appeals from separate orders entered

on August 24, 2018 by the Court of Common Pleas of Delaware County

denying his motion to open and/or strike default judgment and directing him

to deliver a quitclaim deed to Abdelmoniem Abdalla (“Abdalla”). After careful

review, we affirm.

The trial court provided the following synopsis of the factual and

procedural history of this case:

On September 19, 2013, [Abdalla] initiated the

instant action by way of a complaint filed against

[appellant]. According to [Abdalla’s] complaint, the

parties entered into an oral partnership agreement to

acquire, invest in, improve, manage, and operate real

property located at 827-829 W. 9th Street, Chester,

Pennsylvania (the “Property”). Pursuant to the oral

agreement, the parties agreed to a 50/50 partnership.

The parties purchased the Property for $54,000.00,

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with [Abdalla] paying $18,000.00 toward the initial

deposit and [appellant] paying $6,500.00 toward the

initial deposit. The remaining sum was to be paid in

installments of $2,000.00 per month. The Property

needed renovations and improvements, which the

parties became aware [of] after purchasing the

Property.

In April of 2007, [Abdalla] left the United States to

reside abroad and only temporarily returned to the

United States for a few short vacations. In December

of 2007, [Abdalla] learned that [appellant] had agreed

to take on another partner for purposes of raising

additional capital to improve the Property. [Abdalla]

alleged that he never received any funds for the sale

of a portion of his share in the partnership. In

December of 2011, [Abdalla] returned to the United

States from residing abroad. In January of 2012,

[Abdalla] discovered that [appellant] had over-billed

him for construction and other services related to the

Property. [Abdalla] also discovered other improper

bills that he paid that he believed to be fraudulent.

Upon learning of [appellant’s] improper conduct,

[Abdalla] demanded an accounting from [appellant].

[Appellant] had also converted partnership assets for

his own use, stored personal and non-partnership

assets on the Property, and continued to rent space

at the Property to relatives and others without

accounting to the partnership for any payments

received from rentals. Finally, on October 17, 2012,

the City of Chester requested that the water services

be terminated at the Property because the Property

was occupied contrary to law, the permit

requirements were not satisfied, and the building was

unsafe. Despite this, [appellant] continued to rent

space at the Property. Since the beginning of the

partnership, [Abdalla] invested approximately

$137,895.00.

[Abdalla’s] complaint contains the following counts

against [appellant]: (1) dissolution of partnership;

(2) action for accounting pursuant to Pa.R.C[iv].P.

1530; (3) breach of contract; (4) breach of fiduciary

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duty; (5) conversion; (6) unjust enrichment; and (7)

fraud. On September 26, 2014, [Abdalla] filed a

motion for alternative service that was denied on

November 13, 2014. On February 3, 2015, [Abdalla]

filed a second motion for alternative service that was

denied on March 9, 2015. On June 25, 2015,

[Abdalla] filed a third motion for alternative service

that was granted by order dated August 17, 2015.

However, on October 15, 2015, the Sheriff of

Delaware County filed an affidavit of service,

indicating that service of [Abdalla’s] complaint had

been made to the agent or person in charge of

[appellant’s] office or usual place of business, located

at 1135 W. 9th Street, Chester, [Pennsylvania] 19013

on October 14, 2015.

On July 20, 2016, after [appellant] failed to file an

answer to [Abdalla’s] complaint, [Abdalla] filed a

praecipe for entry of judgment of default and a default

judgment was entered on July 20, 2016 in [Abdalla’s]

favor and against [appellant] in the sum of

$273,352.51. In his praecipe for entry of judgment

of default, [Abdalla] represented that $273,352.51

was the sum demanded in his complaint. On

September 27, 2016, [Abdalla] filed a writ of

possession, directing the Sheriff of Delaware County

to deliver possession of the Property to [Abdalla]. On

September 28, 2016, the Sheriff posted the writ of

possession on the Property.

On March 10, 2017, Attorney Scott Kramer, Esquire

[(“appellant’s former counsel”)] entered his

appearance on behalf of [appellant]. On August 3,

2017, [Abdalla] filed a Motion to remove [appellant’s]

name from the Property. [Appellant] filed his

response on August 21, 2017. By order dated

October 11, 2017, [Abdalla’s] motion to remove

[appellant’s] name from the Property was denied

because [Abdalla] failed to appear at the hearing.

On May 10, 2018, [Abdalla] filed a motion to partition

the Property so that [appellant’s] interest in the

Property could be deeded to [Abdalla] as partial

payment of the default judgment. On June 14, 2018,

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[appellant] filed his response to [Abdalla’s] motion for

partition. By order dated June 19, 2018, [the trial

court] granted [Abdalla’s] motion to partition the

Property and scheduled a hearing/court conference

for July 23, 2018 to discuss the partition plan pursuant

to Pa.R.C[iv].P. 1558. At the hearing on July 23,

2018,[Footnote 2] [the trial court] allowed the parties

to privately discuss the logistics for the partition of the

Property off the record. After privately discussing the

matter, [appellant’s former counsel] stated

unequivocally that [appellant] was going to transfer

the Property to [Abdalla] via a [quitclaim] deed within

thirty (30) days. At no point during the hearing did

[appellant], or [appellant’s former] counsel, object to

transferring [appellant’s] interest in the Property to

[Abdalla].

[Footnote 2] The hearing on July 23, 2018

primarily addressed the value of

[appellant’s] interest in the Property and

[appellant] continuing to attempt to settle

this matter.

On July 23, 2018, following the hearing discussing the

partition plan, [the trial court] entered the following

order based on the agreement reached by the parties:

1. [Abdalla] shall pay for an appraisal of the

Property;

2. [Appellant] shall provide a quitclaim deed

to [Abdalla], transferring his interest in

the Property; and

3. The appraisal and the transfer of the

quitclaim deed shall be completed within

thirty (30) days of the date of this Order.

The transfer of [appellant’s] interest in the Property

would also be used as partial payment toward the

satisfaction of the judgment. The July 23, 2018 Order

also scheduled a status hearing for August 23, 2018

to allow the [trial court] to ensure that its July 23,

2018 Order had been complied with by the parties.

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However, on August 9, 2018, Attorney Clinton

Johnson, Esquire entered his appearance on

[appellant’s] behalf and contemporaneously filed a

motion to open the default judgment that was entered

on July 20, 2016. In [appellant’s] motion to open

judgment, [appellant] alleged that the complaint, as

of the date of the filing of the motion to open, had not

been served upon [appellant]. Furthermore,

[appellant] alleged that he was out of the country and

was never notified of this action and never appeared

in court to defend this matter. [Appellant] alleged

that he has meritorious defenses to [Abdalla’s] claims,

but is not fluent in the English language and needs an

interpreter, which he has now retained. Finally,

[appellant] argued that he had been denied due

process and his [former counsel] failed to file a motion

to open the default judgment on his behalf.

Then, on August 15, 2018, [appellant] filed a motion

for reconsideration of the order dated July 23, 2018,

which transferred [appellant’s] interest in the

Property to [Abdalla]. In said motion for

reconsideration, [appellant] argued that the July 23,

2018 order should be vacated because the complaint

was never served upon [appellant], and the default

judgment was defective because it exceeded the

amount that [Abdalla] requested in his complaint.

[Appellant] also repeated the same arguments from

his motion to open judgment.

At the hearing on August 23, 2018, [appellant’s]

current counsel, Clinton Johnson, Esquire, informed

the [trial court] that an appraisal of the Property had

not occurred and the [appellant’s] interest in the

Property was not transferred to [Abdalla]. In support

of his position that [the trial court] reconsider its

July 23, 2018 order or open the default judgment,

[appellant] first argued that he does not understand

the English language and did not understand what was

happening. [Appellant] next argued that the default

judgment award was greater than the sum sought in

[Abdalla’s] complaint. [] [Appellant] appeared in

court on August 23, 2018 and had an “interpreter” sit

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with him. [] [Appellant’s] “interpreter” was someone

[appellant] knew from the community. This

“interpreter” was not appointed by the [trial court]

and [appellant] never made a formal request to have

a court-appointed interpreter.

After the hearing on August 23, 2018, and by separate

orders both dated August 23, 2018, [the trial court]

denied [appellant’s] motion to open judgment and

motion for reconsideration of the order dated July 23,

2018.[1] [Appellant’s] current appeal followed.

Trial court opinion, 10/16/18 at 2-9 (footnote 1, citation to record, and

extraneous capitalization omitted).2

1 The orders were entered by the Delaware County prothonotary on

August 24, 2018.

2 Appellant filed a notice of appeal on September 4, 2018, in which he

addressed the denial of the motion for reconsideration of the July 23, 2018

order to deliver a quitclaim deed to Abdalla. The denial of a motion for

reconsideration is generally not an appealable order. Blackburn v. King

Investment Group, LLC, 162 A.3d 461, 464 n.5 (Pa.Super. 2017) (citations

omitted). However, the July 23, 2018 order was not a final order when

entered because it anticipated further action by appellant and Abdalla within

30 days of the date of the order. (Trial court order, 7/23/18.) The trial court

scheduled a status hearing for August 23, 2018, to determine if appellant and

Abdalla had complied with its order. (Id.) By denying appellant’s motion for

reconsideration of the July 23, 2018 order, the trial court rendered the July 23,

2018 order final and appealable. While re-entering the July 23, 2018 order in

full would have been the better practice, it does not change the fact that as of

August 23, 2018, appellant was required to prepare and deliver a quitclaim

deed to Abdalla.

On September 7, 2018, appellant filed an amended notice of appeal

listing both August 23, 2018 orders, which is generally not acceptable, is not

authorized by statute or rule, and is discouraged. General Electric Credit

Corp. v. Aetna Cas. Sur. Co., 263 A.2d 448, 452 (Pa. 1970) (citations

omitted); Pa.R.A.P. 512. However, where, as here, appellant filed a timely,

albeit discouraged, appeal of multiple orders in an amended notice of appeal,

no fatal defect exists. TCPF Ltd. Partnership v. Skatell, 976 A.2d 571,

574 n.4 (Pa.Super. 2009). Appellant’s amended notice of appeal, in addition

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The trial court ordered appellant to file a concise statement of errors

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

complied. The trial court subsequently filed an opinion pursuant to Pa.R.A.P.

1925(a).

Appellant raises the following issues for our review:

1. Whether the [trial court] erred and abused its

discretion in denying [appellant’s] Petition to

Open/Strike the Default Judgment where there

was an obvious and glaring defect in the record,

where [Abdalla] pled and sought one amount for

damages in his verified complaint of record, but

took a default judgment for one and a half times

the amount pled in the verified complaint, with

no notice to [appellant], violating due process

requirements of the law?

2. Whether the [trial court] erred and abused its

discretion in denying [appellant’s] Motion for

Reconsideration of the [trial court]’s Order of

July 23rd, 2018, directing [appellant] to provide

a Quitclaim deed to [Abdalla], transferring

[appellant’s] interest in the property located at

827-829[] West 9th Street, Chester, PA, where

[Abdalla] failed to provide and pay for an

appraisal of the property within thirty days of

the date of an Order, as directed by the [trial

court], and where [appellant] objected to

providing a quit claim [sic] deed transferring his

interest to [Abdalla]?

Appellant’s brief at 3.

to the denial of the motion for reconsideration of the July 23, 2018 order to

deliver a quitclaim deed to Abdalla, also addressed the denial of his petition

to open and/or strike judgment, and was timely filed from the August 23,

2018 order.

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In his first issue, appellant contends that the trial court erred when it

denied appellant’s petition to open or strike the default judgment entered

against him. (Id. at 6.) Preliminarily, we note that petitions to open a default

judgment and strike a default judgment are “distinct remedies and generally

not interchangeable.” Green Acres Rehab. and Nursing Ctr. v. Sullivan,

113 A.3d 1261, 1270 (Pa.Super. 2015), quoting Stauffer v. Hevener, 881

A.2d 868, 870 (Pa.Super. 2005). Here, as noted supra, appellant filed a

motion to open the default judgment on August 9, 2018. Moreover, appellant,

Abdalla, and the trial court limited their analyses on this issue to a petition to

open default judgment. Accordingly, we shall limit our analysis to a petition

to open default judgment.

We begin by stating our standard of review of a denial

of a petition to open a default judgment:

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.’

Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa.Super.

2000) (citation omitted). This Court may, after a

review of the case, find an abuse of discretion if equity

clearly favored opening the judgment. Id. (citation

omitted). “An abuse of discretion is not a mere error

in judgment, but if in reaching a conclusion, the law is

overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill will, as shown by the evidence of

record, discretion is abused.” Id. (citation omitted).

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Generally speaking, a default judgment may be

opened if the moving party has (1) promptly filed a

petition to open the default judgment, (2) pleaded a

meritorious defense to the allegations contained in the

complaint, and (3) provided a reasonable excuse or

explanation for failing to file a responsive pleading.

Id. at 1281.

Seeger v. First Union Nat. Bank, 836 A.2d 163, 165 (Pa.Super. 2003).

We start our analysis with the first prong, whether appellant promptly

filed a petition to open the default judgment.

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

[timely.] Instead, the court must consider the length

of time between discovery of the entry of the default

judgment and the reason for delay.

....

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 Duckson v. Wee

Wheelers, Inc., [] 620 A.2d 1206 ([Pa.Super.] 1993)

(one day is timely); Alba v. Urology Associates of

Kingston, [] 598 A.2d 57 ([Pa.Super.] 1991)

(fourteen days is timely); Fink v. General Accident

Ins. Co., [] 594 A.2d 345 ([Pa.Super.] 1991 (period

of five days is timely).

Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa.Super. 2009)

(citation omitted); but see Allegheny Hydro No. 1 v. American Line

Builders, Inc., 722 A.2d 189, 193-194 (Pa.Super. 1998) (holding that a delay

in filing a petition to open default judgment of 41 days was untimely; collecting

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and setting forth cases holding that delays in filing a petition to open a default

judgment of 21 days and 37 days rendered those petitions untimely).

In the instant case, the trial court entered a default judgment against

appellant on July 20, 2016. Appellant filed his petition to open the default

judgment on August 9, 2018—over two years after the entry of the default

judgment. Appellant explained that the reason for the delay in filing his

petition to open the default judgment was due to his limited understanding of

the English language and because he was under the impression that his former

counsel had already filed a petition to open. (See notes of testimony, 8/23/18

at 10-13.)

We first turn to appellant’s contention that the delay in filing his petition

to open was due to his limited understanding of the English language. In

Kabanow v. Kabanow, 361 A.2d 721, 722-723 (Pa.Super. 1976) (en banc),

an en banc panel of this court held that difficulties with the English language

do not justify an opening of a default judgment when there is no satisfactory

explanation for a six-month delay after retaining counsel in filing a petition to

open a default judgment.3 In U.S. Bank N.A. v. Mallory, this court held that

a defendant’s failure to retain counsel, despite multiple notices to do so, is not

3 We note that the trial court stated that during the July 23, 2018 hearing,

appellant appeared to understand what was being said and that appellant’s

former counsel made no representation to the trial court that appellant did

not understand that English language and would require a translator. (Trial

court opinion, 10/16/18 at 12.)

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“a reasonable explanation or excuse necessary to open [a] default judgment.”

982 A.2d 986, 996 (Pa.Super. 2009), citing Seeger, 836 A.2d at 167

(“Excusable negligence must establish an oversight rather than a deliberate

decision not to defend.”).

Here, the record reflects that appellant was served with a copy of the

complaint on October 14, 2015.4 The complaint, pursuant to

Pa.R.Civ.P. 1018.1, included a notice to defend which contained language

providing appellant with information about retaining counsel. See also

Delaware County Local R.Civ.P. 1018.1 (establishing the agency to be named

in the notice from whom legal help can be obtained). Likewise, Abdalla mailed

appellant a notice of intention to enter a default judgment on April 25, 2016,

via certified mail, pursuant to Pa.R.Civ.P. 237.1.5 (See praecipe for entry of

judgment of default, 7/20/16, Docket No. 15.) The notice also contained

language providing appellant with information about retaining counsel. The

trial court entered a default judgment in favor of Abdalla and against appellant

on July 20, 2016.

4 The Delaware County Sheriff entered a process receipt and affidavit of return

indicating that an “agent or person in charge of [appellant’s] office or usual

place of business” accepted service at 1135 West 9th Street, Chester,

Pennsylvania. (See sheriff service process receipt and affidavit of return,

10/15/15; Docket No. 14.)

5 We note that Rule 237.1 requires only a certification that a written notice of

intention to enter a default judgment was mailed or delivered.

Pa.R.Civ.P. 237.1(a)(2), quoted by Erie Ins. Co. v. Bullard, 839 A.2d 383,

387 (Pa.Super. 2003).

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The record further reflects that despite multiple notices providing him

with information about retaining counsel, appellant failed to do so until

March 10, 2017, when his former counsel entered his appearance 6—nearly

eight months after the entry of default judgment. We, therefore, find that

appellant is not entitled to relief on his first issue. Kabanow, 361 A.2d at

722-723; U.S. Bank, 982 A.2d at 986.

Alternatively, even if appellant were to have timely retained counsel, a

delay in filing a petition to open the default judgment due to professional

negligence on the part of appellant’s former counsel does not justify

appellant’s delay in filing a petition to open a default judgment. Here,

appellant’s former counsel entered his appearance on March 10, 2017;

however, the petition to open was not filed until August 9, 2018. As noted by

the trial court, our supreme court rejected attorney negligence as a

justification for a delay in filing a petition to open a default judgment. Pappas

v. Stefan, 304 A.2d 143, 146 (Pa. 1973). Accordingly, any professional

negligence on the part of appellant’s former counsel does not justify

appellant’s two-year delay in filing a petition to open the default judgment.

Appellant next claims that the $273,352.51 in damages awarded is in

error because the “amount of damages must be the reasonable value of

6 We note that appellant’s former counsel erroneously entered his appearance

on behalf of Abdalla instead of his client, appellant. (See entry of appearance,

3/10/17.) We further note that our supreme court disbarred appellant’s

former counsel on July 30, 2019.

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[Abdalla’s] losses, if any, and must be for a ‘sum certain.’” (Appellant’s brief

at 7, citing King v. Fayette Aviation, 323 A.2d 286, 287 (Pa.Super. 1974).)

The Pennsylvania Rules of Civil Procedure require the prothonotary to

“assess damages for the amount to which the plaintiff is entitled if it is a sum

certain or which can be made certain by computation[.]”

Pa.R.Civ.P. 1037(b)(1). If damages cannot be made certain by computation,

“damages shall be assessed at a trial at which the issues shall be limited to

the amount of the damages.” Id.

Here, appellant claims that damages should be limited to $137,895

based on the face of the complaint. This claim is not supported by the record.

Indeed, Paragraph 15 of the complaint states that Abdalla invested

approximately $137,895 into the partnership formed between himself and

appellant. In Paragraph 45 of the complaint, Abdalla also alleges that

appellant converted or failed to account for partnership funds in the amount

of $76,352.51. These damages total $214,247.51. It is not readily apparent

from the face of the complaint from where the remaining $59,105 in damages

are derived.

We find that in the instant case, while the prothonotary did not err in

entering default judgment, the assessment of $273,352.51 in damages was

in error. See Maiorana v. Farmers & Merchants Bank, 466 A.2d 188,

190-191 (Pa.Super. 1983) (holding that “while the [p]rothonotary was

unauthorized to assess damages, it does not appear that the entry of the

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default judgment itself was unauthorized.”). The Maiorana court, however,

determined that the proper remedy in such a situation is to file a petition to

open the default judgment. Id. at 191. As noted in detail supra, appellant’s

petition to open the default judgment was not timely filed. Accordingly,

appellant is not entitled to relief.

In his second issue, appellant contends that the trial court erred when

it denied appellant’s motion for reconsideration of the trial court’s July 23,

2018 order directing appellant to provide a quitclaim deed to Abdalla.

(Appellant’s brief at 8.) In his brief, appellant argues that he was justified in

his failure to comply with the trial court’s order because Abdalla failed to obtain

and pay for an appraisal of the Property within 30 days of the order. (Id. at

9-10.)

It is well settled that failure to develop an argument with citation to

relevant authority, coupled with analysis of that authority, will result in waiver

of that argument on appeal. Burgoyne v. Pinecrest Cmty. Ass’n, 924 A.2d

675, 680 n.4 (Pa.Super. 2007) (citation omitted). Here, appellant fails to

include any references to relevant authority supporting his conclusion that

Abdalla’s alleged failure to comply with the trial court’s July 23, 2018 order

justifies appellant’s failure to comply with the order. Accordingly, appellant

waives his second issue on appeal.

Orders affirmed.

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Judgment Entered.

JosephD.Seletyn,Esq.

Prothonotary

Date: 5/26/2020

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