Donatelli, A. v. Haas, S.

J-A22020-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY L. DONATELLI AND : IN THE SUPERIOR COURT OF

MICHELE DONATELLI, HUSBAND : PENNSYLVANIA

AND WIFE :

:

:

v. :

:

:

SIDNEY G. HAAS, JR. : No. 59 WDA 2022

:

Appellant :

Appeal from the Order Entered December 21, 2021

In the Court of Common Pleas of Butler County Civil Division at No(s):

21-10409,

21-20894

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 22, 2022

Appellant, Sidney G. Haas, Jr., appeals from the December 21, 2021

Order entered in the Butler County Court of Common Pleas denying his petition

to open default judgment in this trespass action. After careful review, we

affirm.

The relevant facts and procedural history are as follows. On June 9,

2021, Appellees, Anthony L. Donatelli and Michele Donatelli, filed a Complaint

for Trespass alleging that Appellant, their neighbor, had been encroaching and

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* Retired Senior Judge assigned to the Superior Court.

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trespassing upon their property by storing heavy equipment on it.1 Appellees

attached to the complaint a survey report prepared by Graff Surveying, LLC

(“Graff”) verifying the property boundary line. Appellees sought to eject

Appellant from their property and to have a permanent injunction entered

against him.

On June 17, 2021, the Butler County Sheriff’s Department served

Appellant with the complaint by hand-delivery. The complaint included the

required Notice to Defend, informing Appellant that he must respond to the

complaint within 20 days after service or judgment may be entered against

him. Accordingly, Appellant had until July 7, 2021, to act in response to the

complaint. Appellant did not take any docketed action during this period to

respond to the complaint.

On July 8, 2021, Appellees’ counsel mailed to Appellant a Notice of

Praecipe to Enter Judgment by Default. Counsel also mailed a copy of the

notice to Attorney John P. Senich, an attorney allegedly engaged in

discussions with Appellant regarding possible representation in this case.

Attorney Senich did not, however, enter his appearance or file any documents

on Appellant’s behalf.

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1 Appellees had previously requested by letter dated May 10, 2021, that

Appellant remove the equipment and other items he was storing on Appellees’

property. Appellees noted in the letter that Appellant was present when their

surveyor, Graff Surveying, LLC, performed a survey to verify the location of

the property boundary line.

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On July 22, 2021, the Butler County prothonotary entered default

judgment against Appellant and sent Appellant a Notice of Entry of Default

Judgment. That same day, Appellees filed a Motion to Assess Damages and

for Equitable Relief in Enforcement of Judgment Against [Appellant].

On July 29, 2021, Appellant hand-delivered to the Butler County

prothonotary a letter dated July 23, 2021. In the letter, Appellant stated,

inter alia, that the trial court should dismiss all charges against him because

he never received a certified letter or written notice that a case had been filed

against him. The letter did not contain any proposed answer, new matter, or

preliminary objections to the complaint, or raise any meritorious defense to

the allegations asserted in the complaint.

Also on July 29, 2021, the trial court entered an order directing

Appellant to remove the heavy equipment and other items from Appellees’

property. The court scheduled a hearing on Appellees’ motion to assess

damages for November 5, 2021.

On September 23, 2021, more than two months after the entry of

default judgment, Appellant filed a Petition to Open Default Judgment. In the

petition to open, Appellant acknowledged that on June 17, 2021, he received

by personal service Appellees’ complaint with the attached notice to defend.

He asserted that, after receiving the complaint, he consulted Attorney Senich,

whom he mistakenly believed was representing him. He averred that, when

he received the July 8, 2021 notice of default, he continued to believe that

Attorney Senich was representing him. He explained that after finally realizing

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that Attorney Senich was not representing him, he sent the letter dated July

23, 2021, to the court addressing some of the allegations raised in the

complaint and in the motion to assess damages.

In support of his petition to open, Appellant claimed that his failure to

timely file an answer was excusable because he is an “older, pro se litigant

that did not understand the seriousness of what was happening” and that he

thought Attorney Senich was representing him. Petition, 9/23/21, at ¶ 19-

20. He also claimed that he had a meritorious defense, which he set forth in

an Answer and New matter, that he was not storing equipment on Appellees’

property, that the Graff survey was inaccurate, and that he possessed the land

in question through adverse possession.2 Appellant did not attach any

evidence supporting his claim that the Graff survey was inaccurate.

The next day, the court issued a rule to show cause directing Appellees

to file an answer to Appellant’s petition to open within 30 days, granting the

parties the opportunity to take depositions, and scheduling a hearing on the

petition.

On October 20, 2021, Appellees filed an answer to Appellant’s petition

to open raising disputed issues of material fact and asserting that Appellant’s

petition was untimely. Appellees also filed a reply to Appellant’s new matter,

including, as an exhibit, a letter from the prior owner of Appellees’ property,

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2 Appellant also raised a counterclaim for Intrusion Upon Seclusion, alleging

that Appellees used video cameras attached to their residence and business

to spy on Appellant.

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Gary L. Risch, Sr., acknowledging that he had permitted Appellant to “park

some of his vehicles on the rear side of the property,” denying that he had

given Appellant the property, and averring that Appellant was aware that Mr.

Risch had not given him the property.3

On October 29, 2021, Appellees deposed Appellant. Relevantly,

Appellant testified that he had previously been involved in “a dozen” lawsuits

and had been deposed before.4 He also testified that in some of those suits

he had represented himself and in others he had retained counsel. Appellant

explained that he was aware of the judgment entered against him but because

it was not a monetary judgment, he thought he “had to wait to see what

happened.”5 He further testified that he prepared and filed his own letter with

the prothonotary because Attorney Senich was not representing him.6

Appellant also testified that he had obtained a survey of his property in

the 1970s and that it differs from the Graff survey. He conceded that he

“technically can’t read” a survey and is not capable of comparing maps and

surveys because he is not a surveyor.7 Nevertheless, he concluded that

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3 See Letter from Gary L. Risch, undated.

4 N.T. Haas Deposition, 10/29/21, at 53-54.

5 Id. at 145.

6 Id. at 79-80, 84. See also id. at 89 (where Appellant testified that Attorney

Senich was not involved in this litigation because he “didn’t want to be

involved”).

7 See id. at 32, 114-116.

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because of the differences he observed between the surveys and his

comparison of the Graff survey to a Google map satellite image provided to

him by the Butler County tax office, the Graff survey was, inaccurate.

On November 17, 2021, the parties deposed Attorney Senich. Attorney

Senich testified that Appellant contacted him about the instant litigation in late

June or early July of 2021. He testified that Appellees’ counsel sent him a copy

of Appellees’ complaint and that same day he visited Appellant at home to

take pictures of existing property boundary markers and to gather more

information. At that time, Appellant provided him with a copy of the

complaint. Attorney Senich informed Appellant that he did not practice this

type of law but that he would take a look at the complaint. He also testified

that, at that time, he told Appellant that if the suit concerned assets owned

by Appellant’s son, whose estate Attorney Senich was representing, he could

be involved, but if not, “I can’t represent you here.”8 He testified that he did

not agree to represent Appellant at that point. He further testified that he

informed Appellees’ counsel that he did not represent Appellant. Attorney

Senich testified that shortly before he went on a one-week vacation that began

on July 17, 2021, he gave Appellant the names of other law firms to contact

to engage representation. He testified that on August 5, 2021, he confirmed

by letter to Appellant that he would not be representing him in this matter.

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8N.T. Senich Deposition, 11/17/21, at 13. See also id. at 17 (where Attorney

Senich testified that sometime just prior to July 17, 2021, he declined to

deliver a letter from Appellant to the court and reiterated to Appellant that “I

can’t represent you in this.”).

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Attorney Senich testified that he had ongoing conversations with Appellant

throughout the pendency of this matter and had asked Appellant to keep him

apprised of developments in this matter in case some of the heavy equipment

that Appellees alleged Appellant had located on their property belonged in

Appellant’s son’s estate.

On December 20, 2021, the court heard argument on Appellant’s

petition to open, following which it entered the order denying the petition.9

This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Whether the lower [c]ourt erred as a matter of law and/or abused

its discretion by denying Appellant’s Petition to Open Default

Judgment[?]

Appellant’s Brief at 4.

A.

“A petition to open a default judgment is an appeal to the equitable

powers of the court.” Smith v. Morrell Beer Distribs., Inc., 29 A.3d 23, 25

(Pa. Super. 2011) (citation omitted). The decision to deny a petition to open

a default judgment is within the discretion of the trial court and we will not

disturb the court’s decision absent an abuse of that discretion. Id.

Generally, a trial court may open a default judgment if the movant has:

“(1) promptly filed a petition to open the default judgment, (2) provided a

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9 The lower court entered this order on the docket on December 21, 2021.

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reasonable excuse or explanation for failing to file a responsive pleading, and

(3) pleaded a meritorious defense to the allegations contained in the

complaint.” Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175-76 (Pa.

Super. 2009). “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). “[T]he 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.” Kelly v. Siuma, 34 A.3d 86, 91 n.6 (Pa.

Super. 2011).

B.

Appellant first asserts that he promptly filed his petition. Appellant’s

Brief at 11. In support of his claim, he argues that the trial court should have

calculated the delay in filing the petition not from the date judgment had been

entered—July 22, 2021—but instead from either the day Attorney Senich sent

him a letter officially notifying Appellant that Attorney Senich would not

represent him—August 5, 2021—or from some time in “late August of 2021”

when Appellant learned, allegedly for the first time, from current counsel, that

a judgment had been entered against him. Id. at 11-12.

With respect to the first prong pertaining to timeliness of the petition to

open, “[t]he law does not establish a specific time period within which a

petition to open a judgment must be filed to qualify as time[ly].” Myers, 986

A.2d at 176 (citation omitted). “Instead, the court must consider the length

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of time between discovery of the entry of the default judgment and the reason

for the delay.” Id. (citation omitted).

This court has explained as follows:

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[, 1209] (Pa. Super.

1993) ([holding] one day [after default is taken] is timely); Alba

v. Urology [Assocs.] of Kingston, [] 598 A.2d 57[, 58] ([Pa.

Super.] 1991) ([holding] fourteen days [after judgment was

entered] is timely); Fink v. [Gen.] Accident Ins. Co., [] 594

A.2d 345[, 346] ([Pa. Super.] 1991) ([holding] five days [after

default judgment was entered] is timely).

Id. (citation omitted). See also Allegheny Hydro No. 1 v. Am. Line

Builders, Inc., 722 A.2d 189, 193-94 (Pa. Super. 1998) (holding a 41-day

delay in filing a petition to open a default judgment after default judgment

has been entered was untimely; collecting and setting forth cases holding

delays in filing a petition to open a default judgment of 21 days and 37 days

rendered those petitions untimely).

In light of the above case law, the trial court did not abuse its discretion

in calculating the delay in filing the petition to open from the date the

prothonotary entered the default judgment against Appellant and in

determining that in waiting 63 days after entry of the default judgment to file

his petition to open, Appellant did not timely file it.10

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10 Moreover, even if the trial court had miscalculated the delay and we

accepted Appellant’s claim that the delay was only 49 days, Appellant’s claim

would fail as a petition to open filed 49-days after entry of the default

judgment is similarly not prompt.

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C.

Appellant next argues that his delay in filing the petition to open and his

failure to file an answer were excusable because: (1) he thought Attorney

Senich was representing him; (2) he “did his best” to find another attorney;

(3) he was homebound during the relevant period, which “made retaining

counsel quite difficult”; and (4) he was pro se and “clearly did not fully

understand the consequences of a default judgment.” Appellant’s Brief at 12-

13.

With respect to Appellant’s claims that his delay was excusable, the

court found that the evidence presented by Appellant, namely his deposition

testimony and that of Attorney Senich, was “either far too vague for [the

c]ourt to draw any reasonable inferences therefrom, or, when not vague, did

not support a legitimate justifiable cause for the delay in filing the [p]etition.”

Trial Ct. Op., 3/4/22, at 9. In particular, the trial court highlighted Appellant’s

testimony regarding the Notice of Praecipe to Enter Default Judgment. The

court emphasized that Appellant testified first that, when asked whether he

had received the notice in the mail or prior to his deposition, he testified that

he had not. Later, however, Appellant admitted that he might have seen it

but if he did, he “didn’t look at it.” Id. (citing N.T. Haas Deposition at 132,

140). Appellant also conceded that he was aware that a judgment had been

entered against him, but because it was not a monetary judgment he decided

to “wait to see what happened.” Id. (citing Haas Deposition at 145). The

court also noted that the evidence demonstrated that even after Appellant

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determined he needed to obtain alternate counsel, he failed to act with

urgency.

The trial court also found that “the imprecise testimony given by

[Appellant] and Attorney Senich” coupled with Appellant’s testimony

evidencing that he “did not view this lawsuit with any degree of gravity . . .

did not support [Appellant’s] burden of demonstrating a reasonable excuse for

his failure to timely respond to the [c]omplaint[.]” Id. at 12. In reaching this

conclusion, the court emphasized Appellant’s vague testimony regarding when

he received documents and when he provided those documents to Attorney

Senich and Appellant’s testimony regarding his experience and sophistication

as a litigant in prior cases. The court determined that Appellant’s assertion

that he did not understand the seriousness of this lawsuit was entirely devoid

of credibility.

Following our review of the record, we conclude that the trial court did

not abuse its discretion or err as a matter of law in finding that Appellant’s

delay in filing both the petition to open the default judgment and an answer

to the complaint was not excusable.

D.

Last, Appellant argues that he asserted meritorious defenses to the

claims against him, i.e., (1) that the Graff survey was inaccurate and (2)

adverse possession. Appellant’s Brief at 14. He argues that he was required

only to assert defenses, not to prove them and, therefore, the trial court erred

when it found that Appellant had not proved these defenses. Id. at 14-15.

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Keeping our standard of review in mind, this Court has previously

described the meritorious defense prong as follows:

The requirement of a meritorious defense is only that a defense

must be pleaded that if proved at trial would justify relief. The

defendant does not have to prove every element of its defense,

however, it must set forth the defense in precise, specific and

clear terms.

Penn-Delco Sch. Dist. v. Bell Atl.-Pa, Inc., 745 A.2d 14, 19 (Pa. Super.

1999) (citations omitted, emphasis added).

Here, the trial court explained that Appellant failed to set forth his

defenses with specificity sufficient to demonstrate that, if proved, the defenses

would justify relief. In particular, the court found that Appellant’s testimony

regarding his belief that the Graff survey was inaccurate “lacked specificity as

to any inaccuracy in the survey.” Trial Ct. Op. at 13. The court also noted

that Appellant neglected to provide the court with documents, maps, surveys,

or satellite images to support his claim. It determined that Appellant’s

concession that he lacks training and is “unable to interpret surveys or

subdivision plans or compare satellite imaging to same” undermined his claim

that the Graff survey was incorrect based on his own reading of the survey

and maps. Id. at 14.

Last, with respect to Appellant’s adverse possession defense, the trial

court found that Appellant could not satisfy the hostility element necessary to

prove a claim for adverse possession. Id. at 15 (noting that Appellant did not

deny Appellees’ assertion in paragraph 6 of the complaint that their

predecessors in interest permitted Appellant to locate equipment on their

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property). Moreover, the court observed that Appellant did not testify or

allege with specificity as to what area or portion of Appellees’ property he

adversely possessed.

Following our review of the record, we conclude that the trial court did

not abuse its discretion in determining that Appellant did not assert with

sufficient precision, specificity, and clarity any defenses to Appellees’

complaint in trespass. Appellant is, thus, not entitled to relief.

E.

In sum, the trial court did not abuse its discretion or err as a matter of

law in denying Appellant’s petition to open default judgment where the petition

was not promptly filed and Appellant did not set forth any reasonable excuses

for his delay or meritorious defenses to Appellees’ claims.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2022

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