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Oswald v. WB Public Square Associates, LLC

Superior Court of Pennsylvania

November 7, 2013

ERIKA OSWALD Appellee
v.
WB PUBLIC SQUARE ASSOCIATES, LLC, INDIVIDUALLY AND T/D/B/A HARDWARE BAR Appellant

Appeal from the Order Entered of September 12, 2012 In the Court of Common Pleas of Luzerne County Civil Division at No.: 2010-12598

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and COLVILLE, J. [*]

OPINION

WECHT, J.

WB Public Square Associates, LLC ("Appellant"), appeals from the September 12, 2012 order in the Luzerne County Court of Common Pleas denying Appellant's petition to open and strike judgment. For the reasons set forth in this opinion, we reverse.

This case was commenced when Erika Oswald ("Appellee") filed a complaint alleging that Appellant was liable for the injuries that she sustained while "acting in her official capacity as a Wilkes-Barre City Police Officer." Appellee's Complaint, 9/15/2010, at 2. Specifically, Appellee alleged that Appellant is liable under theories of negligence and dram shop law for serving a "visibly and obviously intoxicated [person] at the time that he assaulted [Appellee]." Id. The trial court has summarized the remaining facts and procedural history of this case as follows:

This matter was initiated by a Complaint filed by [Appellee], on September 1[5], 2010[, ] against [Appellant], individually and t/d/b/a Hardware Bar. Service of the Complaint was made on September 20, 2010[, ] by the Luzerne County Sheriff.
No response to the Complaint was filed so Plaintiff served an Important Notice on [Appellant] on November 10, 2010 by United States First Class Mail. This Notice provided [Appellant] with an additional ten days to act before a judgment was entered. Because [Appellant] again failed to file a response, [Appellee] filed a Praecipe for Entry of Judgment by Default and a Default Judgment was entered in favor of [Appellee] and against [Appellant] on December 17, 2010.
On June 16, 2011, original counsel filed an Entry of Appearance on behalf of [Appellant]. Original counsel for [Appellant] then filed a Written Demand for Jury Trial. Approximately one year later, original counsel withdrew his appearance and current counsel entered hers for [Appellant]. On August 9, 2012, more than twenty-two months after the Complaint was served on [Appellant] and more than nineteen months after the Default Judgment was entered, current counsel filed a Petition to Open/Petition to Strike Judgment. [Appellee] responded to the Petition by filing an Answer and Brief on August 22, 2012. Oral Argument was held on September 10, 2012.

Trial Court Opinion ("T.C.O."), 9/12/2012, at 1-2.

On September 12, 2012, the trial court denied Appellant's petition as untimely. This timely appeal followed.[1]

Appellant raises the following issues for our consideration:

1. Should the Default Judgment be stricken where the record reflects a fatal defect in the Important Notice because it does not conform to Pa.R.C.P. 237.5, making the entry of judgment void ab initio?
2. Did the trial court err in denying the Petition to Strike Default where the record reflects improper service of the Complaint on the defendant corporation by providing same to a security person, not an officer of the corporation, at a location other than the premises where the Hardware Bar was located?
3. Did the trial court err in denying a Petition to Open Default and failing to consider all three criteria for opening a default where defendant pleaded numerous meritorious defenses to the allegations contained in the Complaint, where defendant provided a reasonable explanation and excuse for failing to file a response ...

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