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Kreidie v. Commonwealth

Commonwealth Court of Pennsylvania

March 10, 2017

Marwan Kreidie
v.
Commonwealth of Pennsylvania, Department of Revenue, Appellant

          Argued: February 7, 2017

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE DAN PELLEGRINI, Senior Judge

          OPINION

          PATRICIA A. McCULLOUGH, Judge

         The Commonwealth of Pennsylvania, Department of Revenue (the Department) appeals from the April 21, 2016 order of the Court of Common Pleas of Philadelphia County (the trial court), which denied the Department's motion to strike entry of default judgment, its petition to open default judgment, and its motion for a new trial.

         Facts and Procedural History

         Marwan Kreidie (Appellee) filed a two-count complaint against the Department on May 15, 2015, alleging discrimination in employment following his discharge from the Department's Bureau of Pennsylvania State Lotteries. (Reproduced Record (R.R.) at 15-16.)

         Appellee filed an affidavit of service of this complaint indicating service upon a Brenda Myles, who was labeled "Manager" and "a person authorized to accept service" at the Commonwealth of Pennsylvania, Department of Treasury (not Department of Revenue) at 700 Packer Avenue, Philadelphia, Pennsylvania, on May 22, 2015. There is no evidence that Appellee or his process server ever attempted to serve the Attorney General of Pennsylvania. There is nothing in the record to identify who Ms. Myles is and whether the Packer Avenue address was a site for the Department or just for the "Department of Treasury" as affirmed on the affidavit of service. (R.R. at 22.) However the Department has since conceded that the Packer Avenue address "does correspond with the street address for the Department of Revenue." (Brief for Appellant at 7, fn 2.)

         On August 3, 2015, Appellee sent a notice of praecipe to enter default judgment (commonly referred to as a "ten day notice") on the prescribed Pennsylvania form to the Department at the 700 Packer Avenue address. This notice was received by the Department on August 6, 2016. (R.R. at 28-31.) There is no evidence of any effort by Appellee to send the "ten day notice" to the office of the Attorney General. On September 11, 2015, a praecipe to enter default judgment was filed. In addition to judgment, the praecipe sought "a hearing to assess damages." (R.R. at 23-24.)

         Appellee attached an exhibit (Exhibit D) to the praecipe, which included a transcript of an e-mail exchange between his counsel and counsel for the Department. The first e-mail message was from Appellee's counsel on August 13, 2015, reading in pertinent part, "How long of an extension do you need for an answer/New Matter only?" (R.R. at 32.) The Department's counsel replied the same day that, "I would like 21 days because I have quite a few more depositions the next 2 weeks." Id. Appellee's counsel replied, "Agreed." Id.

          The prothonotary entered judgment twenty-nine days after the above email exchange, and on October 13, 2015, the trial court issued a notice scheduling a hearing on Monday, December 21, 2015, to assess damages on the judgment. (R.R. at 34.)

         On Friday, December 18, 2015, the Department electronically filed a petition to open judgment, which the court administrator rejected on December 21, 2015, because it needed to have been filed "in motion section." Accordingly, that petition was not before the trial court when it convened the hearing on assessment of damages. (R.R. at 39, 118-19, 121-22.)

         Appellee was the sole witness at the hearing. (R.R. at 35-62.) He testified about his employment with the Department from January 1, 2011, through March 5, 2011, what his pay and benefits totaled, and until what age he expected to work. He did not address the allegations in his complaint as to liability.[1]

         At the close of the hearing, the trial court asked both parties to submit proposed findings of fact and conclusions of law by January 8, 2016. (R.R. at 61-62.) Both sides availed themselves of this post-hearing opportunity (R.R. at 130-46) and the Department also submitted an affidavit from Linda Miller consisting of records and other evidence not adduced at the hearing. (R.R. at 147-74.) Miller was the Director of Human Resources for the Department. Miller's affidavit contradicted Appellee's testimony before the trial court because it alleged that Appellee's position with the Department ended effective March 1, 2011, but that he immediately commenced other Commonwealth employment the next day, attaching exhibits demonstrating the Commonwealth positions, the pay scales, and the levels of benefits. (R.R. at 147-74.)

         In the meantime, the Department filed a second petition to open judgment that was finally accepted for filing on December 23, 2015, which was opposed by Appellee and ...


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