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J-S30007-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
EXPERITY VENTURES, LLC, : IN THE SUPERIOR COURT OF
THRIVEST LEGAL FUNDING, LLC, : PENNSYLVANIA
MEDSOLVE FINANCIAL GROUP, LLC, :
LEGAL ASSISTANCE FUNDING II, :
LLC, LAF MEDICAL SERVICES SPV II, :
LLC, LAF MEDICAL SERVICES II, LLC :
:
:
v. : No. 2636 EDA 2024
:
:
CHAD ADLER, RICHARD BERMAN, :
LEGAL ASSISTANCE FUNDING, LLC, :
LAF MEDICAL SERVICES, LLC :
:
Appellants :
Appeal from the Order Entered September 9, 2024
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 220800239
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 19, 2025
Appellants, Chad Adler, Richard Berman, Legal Assistance Funding, LLC
(âLAFâ) and LAF Medical Services, LLC (âSurg-Assistâ), appeal from the
September 9, 2024 order denying their petition to open judgment. We affirm.
Appellees, Experity Ventures, LLC (âExperityâ), Thrivest Legal Fundings,
LLC (âThrivestâ), MedSolve Financial Group, LLC (âMedSolveâ), Legal
Assistance Funding II, LLC (âLAF IIâ), LAF Medical Services, SPV II, LLC (âLAF
SPVâ), and LAF Medical Services II, LLC (âLAF MedServices II), filed their initial
complaint on August 1, 2022, and subsequently filed an amended complaint
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S30007-25
on October 25, 2022. In their amended complaint, Appellees alleged that they
and Appellants â[were] in the business of litigation and medical receivables
fundingâ and that the parties entered into two agreements for this purpose.
Appelleesâ Amended Complaint, 10/25/22, at 3. Under the terms of the
agreements, Appellants presented various funding opportunities to Appellees
who, in turn, funded âthe opportunities that me[t] certain criteria.â Id.
Thereafter, Appellees were to recoup their expenditures according to the
âpayment allocation provisionsâ included within the agreements executed by
the parties. Id. Appellees, however, claimed that Appellants engaged in
various fraudulent practices, resulting in Appellees inability to âreceive[] or
supervise[]â repayment. Id. Thus, Appellees brought suit against Appellants
for fraud, conversion, breach of contract, unjust enrichment, and negligent
misrepresentation.
On December 2, 2022, Appellants responded to Appelleesâ amended
complaint by filing preliminary objections. Simultaneously, Appellees served
upon Appellants their first set of requests for production of documents on
November 28, 2022. Appellants, however, failed to timely comply with
Appelleesâ discovery requests. Therefore, on April 13, 2023, Appellees filed a
motion to compel and asked the trial court to enter an order requiring
Appellants to produce the requested documents and information. While
resolution of Appelleesâ motion to compel remained outstanding, the trial court
entered an order regarding Appellantsâ preliminary objections. In particular,
the trial court overruled each of Appellantsâ preliminary objections. See Trial
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J-S30007-25
Court Order, 5/17/23, at 1-2. Appellants did not file an answer to Appelleesâ
amended complaint. See Pa.R.C.P. No. 1028(d).
On June 6, 2022, the trial court convened a hearing to address
Appelleesâ outstanding motion to compel. Following that hearing, on June 23,
2023, the trial court entered an order tailoring Appelleesâ discovery requests.
The trial courtâs order states, in relevant part, as follows.
1. [Appellants] shall within [30] days of entry of this Order
provide [Appellees] with all financial information and
transactions pertaining to the 250 open, unmonetized cases
funded by [Appellees] from January 1, 2019 to the present
time.
2. Within [30] days from entry of this order, [Appellants] shall
provide [Appellees] with all letters relating to the distribution
of proceeds from settled cases that are now closed. These
letters [included] records of distribution of proceeds from
settled cases that are now closed. These letters [included]
records of distributions between [Appellants] and law firms
with whom [Appellants] have done business with since
January 1, 2019 relating to funding support for law firm
cases before they were settled or went to trial.
3. Within [30] days of entry of this Order, [Appellants] shall
provide [Appellees] with the full settlement sheets and date
of 1,000 closed cases as [Appellees] randomly select. These
randomly selected cases shall have closed between January
1, 2019 and the present time.
Trial Court Order, 6/26/23, at 1. Appellants failed to comply with the trial
courtâs order.
On August 3, 2023, Appellees filed a motion for sanctions against
Appellants, asking the trial court to, inter alia, order production of the
documents and communications set forth in its June 26, 2023 order for the
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J-S30007-25
second time and, if Appellantsâ did not comply, to issue sanctions pursuant to
Pa.R.Civ.P. 4019(c)(2). Appelleesâ Motion for Sanctions, 8/3/23, at 2.
Appellants did not contest Appelleesâ motion. On September 21, 2023, the
Honorable Ramy Djerassi granted Appelleesâ motion and directed Appellants
to âprovide full and complete productions to [Appellees] within ten [] days . .
. or [Appellants] will be precluded from raising any defenses to [Appelleesâ]
claims pursuant to Pa.R.Civ.P. 4019(c)(2).â Trial Court Order, 9/21/23, at *1
(unpaginated). Again, Appellants failed to comply with the trial courtâs order.
On March 1, 2024, Appellees served Appellants a 10-day notice of intent
to enter praecipe for judgment, alerting Appellants to the fact that they failed
to seek to file an answer to Appelleesâ amended complaint and that Appellees
would seek to enter judgment if Appellants failed to file an answer within 10
days. On March 10, 2024, by way of e-mail correspondence, Appelleesâ
counsel provided Appellants with an additional five days to file an answer, i.e.,
by March 15, 2024. In the interim, on March 14, 2024, the parties convened
for a settlement conference before the Honorable Gary S. Glazer. The parties
were unable to resolve the matter. Appellants did not file an answer to
Appelleesâ amended complaint on March 15, 2024. Thus, on April 3, 2024,
Appellees entered default judgment against Chad Adler and Richard Berman
and on April 9, 2024, Appellees entered default judgment against LAF and
Surg-Assist.
On May 6, 2024, Chad Adler and Richard Berman filed a petition for
relief from default. LAF and Surg-Assist did not participate in the petition.
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J-S30007-25
See Petition for Relief From Default, 5/6/24, at 2, ¶ 6 (âAlthough there are
[four d]efendants, default judgments were entered in this case against only
the [two] individual defendants â Chad Adler and Richard Berman â on April
3, 2024â). In their petition, Adler and Berman averred, in relevant part, the
following:
1. The petition [was] promptly filed [because] it was filed within
40 days from the date of default judgment.
2. The failure to [file an] answer [was] excusable because
1) [Adler and Berman], through counsel, have agreed that
[Appellees] have no damages against [Adler and Berman]
and because the parties agreed to stay the case for 60 days
from March 14, 2024 in order to enable [Adler and Berman]
to try to sell the open claims.
3. [Adler and Berman] have a meritorious defense because,
inter alia, all payments and claims have been accounted for.
Id. at 11-12 (numbering altered). Adler and Berman did not attach a
proposed answer to their petition. Instead, on June 6, 2024, they filed a
praecipe to supplement their May 6, 2024 petition, which included a proposed
answer to Appelleesâ amended complaint.
On July 9, 2024, the parties convened for a hearing on Adler and
Bermanâs petition. At the outset, the trial court clarified that the petition was,
in fact, a petition to open default judgment, rather than a petition to strike
default judgment.1 See N.T. Hearing, 7/9/24, at 4. At the hearing, it was
____________________________________________
1 The May 6, 2024 petition requested the trial court to âstrikeâ the default
judgment entered. See Petition, 5/6/24, at 17. The petition, however, did
not allege that a fatal defect appeared on the face of the record, rendering the
(Footnote Continued Next Page)
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J-S30007-25
established, eventually, that counsel for Adler and Berman also represented
LAF and Surge-Assist but mistakenly thought default judgment was only
entered against Adler and Berman. Id. at 53. Hence, counsel admitted that
LAF and Surge-Assist did not participate in filing the petition to open
judgment. Id.
Nonetheless, Appellantsâ counsel contended, first, that the reason for
the delay in filing an answer to Appelleesâ amended complaint was his belief
that, on March 14, 2024, the parties agreed to stay the matter. See id. at
18-19 (the court inquiring whether, âas a result of having that conversation
with Judge Glazer, [counsel thought] that he had to or did not have to answer
____________________________________________
default judgment invalid. See Petition, 5/6/24, at 1-17. Instead, the petition
discussed the legal authority relevant to a petition to open default judgment.
See id. at 11-12. Importantly,
A petition to strike a default judgment and a petition to open a
default judgment request distinct remedies and generally are
not interchangeable. A petition to open is an appeal to the
discretion of the trial court; hence, we cannot reverse the trial
court's determination absent a manifest abuse of discretion or
error of law. Conversely, a petition to strike a default judgment
should be granted where a fatal defect or irregularity appears
on face of record. A court may only look at the facts of record
at the time judgment was entered to decide if the record
supports the judgment. A petition to strike does not involve the
discretion of the court.
Erie Ins. Co. v. Bullard, 839 A.2d 383, 386 (Pa. Super. 2003) (internal
citations and quotation marks omitted). Because the substance of the petition
implicated a petition to open the default judgment, the trial court properly
perceived it as one seeking to open, not strike, default judgment. See id.
(addressing the âdispositive argumentâ which âraise[d] an issue that is
properly framed as a petition to strikeâ judgment even though the appellant
labeled the petition as a âPetition to Open and Vacate Judgment.â).
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J-S30007-25
a complaint?â Defense counsel indicting that his belief was based upon
Appelleesâ counselâs suggestion that they âstay the case for 60 days.â). This
allegation was contested by Appelleesâ counsel. He stated:
March 14th[,] we arrive before Judge Glazer. We have our
settlement conference. And during the settlement conference,
we made crystal clear that there [was] no extension to the
answer. And to memorialize that, [defense counsel] followed
up with me after the settlement conference on March 14th at
5:31 p.m., saying, Please let me know what we can do about
the answer.
If the stay was agreed to as [a temporary resolution reached
on March 14, 2024], I donât know why you would be writing
asking what we can do about the answer. He then again asked
to discuss the answer on March 16th. And on March 19th, I
wrote to him and I quote, Iâm unable to get an extension on
your time to answer the complaint.
***
On March 25th, now 11 days after the same settlement
conference, defense counsel writes me, âWe still need to discuss
the extension to the answer.â Which I previously told him six
days prior I had no further authorization to give them. We
waited longer to allow them more time to provide an answer.
Not giving a verbal extension but just waiting.
By April 3rd, no answer had been filed. So we entered a default
judgment against them and provided them notice.
Id. at 26-28. The aforementioned communications were attached to
Appelleesâ oppositional brief. See Appelleesâ Brief in Opposition, 5/28/24, at
Exhibits 13-16.
Next, the parties discussed the issue of Appelleesâ outstanding discovery
requests, as well as the propriety of the trial courtâs September 21, 2022 order
which indicated that, if Appellants failed to produce the documents outlined in
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J-S30007-25
its June 6, 2022 order, they could not present any meritorious defenses at
trial. The relevant exchange is as follows.
[Appelleesâ Counsel]: ⊠Mr. Adler has represented that he is
able to somehow have these providers give the money to him
and then he will be able to give it to us. The issue we [are]
having, your Honor, is that they have [not] provided us the
underlying documents to confirm that that is, in fact, the case.
They have given us Excel[] documents without providing any
substantiating documents and that was part of the issue in
discovery.
The court: Let me stop you.
So your client is not providing the documentary basis for his
collection efforts? That [is] a yes or no for me.
[Appellantsâ counsel]: Judge, we [have] never declined to
produce underlying information relating our spreadsheets. We
believe that our spreadsheets are 1000 percent accurate.
The court: That [is] not what I asked you.
Supporting documentation. Is there documentation other than
â
[Appellantsâ counsel]: I have it. I mean, I have it. In all these
shared spreadsheets, this is the first time that [Appelleesâ
counsel] has asked for it but I can get it to him because I have
underlying e-mails showing the status of all these cases.
The court: All right. This is all a derivative analysis of either
your client or counsel. Present this at a Frye2 hearing. And I
would need foundation before I would accept an opinion of what
the value of something is. It just seems that part of it has not
been provided to [Appellees].
Now, is that because they did [not] ask for it or you did [not]
promise it? How is it that this case like I said from when it first
started growing whiskers and your client has [not] provided
wholesome evidence of his efforts to collect[] these debts?
____________________________________________
2 Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
-8-
J-S30007-25
[Appellantsâ counsel]: I thought based on the information â
again, this is the first time I [am] hearing that they want
additional information relating to these claims. But I thought
based on the spreadsheets we [have] been producing since last
year, that that was the fulsome evidence they wanted. And
they agreed with us that the $1.2 million that they are not
saying that we owe them â
The court: That is their theory right now. Listen, you may
prevail on your defense if I open judgment. However, I [am]
just trying to figure who is doing what and what information has
been provided.
[Appelleesâ counsel]: Judge, I [would] like to be heard on that.
I like my client am frustrated. We tried to take Mr. Adlerâs
deposition. He did [not] give his deposition. The basis of the
preclusion order which I argued in September 2023 in front of
Judge Djerassi was this underlying information.
***
The court: ⊠[Y]ou need to answer the very specific question
that started this portion of the argument. And that is did you
provide all the information that has been requested? It [is] a
yes or no and you did [not] give me that yet.
[Appellantsâ counsel]: In terms of the spreadsheets, yes. In
other words, we never got a follow-up saying, Hey, Pat, the
spreadsheet looks good. Could you provide us the backup for
these calculations, which I have this is the first time â
The court: Slow down. Slow down.
Did your client appear for noticed deposition?
[Appellantsâ counsel]: No.
The court: So there [is] no way for the plaintiff to have
conducted discovery on this very topic other than through
communications of counsel.
[Appellantsâ counsel]: Judge, I do [not] recall receiving a
notice. I know we talked about depositions.
The court: Let me ask. Looking at plaintiffsâ counsel right now,
has either the request or the notice of deposition ever been
propounded to the defendant[,] Mr. Adler?
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J-S30007-25
[Appelleesâ counsel]: Yes. I [am] almost certain we provided
a notice of dep[osition]. We provided a notice of deposition to
opposing counsel, yes.
The court: Can you tell me without talking to your client in front
of me today why he did [not] appear? Because this seems to
be a significant part of the preclusion order [entered in
September 2023] which may to a certain extent [] handcuff me
as a part of the case?
[Appellantsâ counsel]: Judge, the impression and
understanding that I had from dealing with [opposing counsel]
was that the spreadsheets were sufficient. That that cleared up
all the uncertainty. And that is, in fact, how the discussion went
[during the settlement conference on May 14, 2024].
***
The court: Why was the preclusion order entered?
[Appellantsâ counsel]: For documents.
The court: You were [not] producing documents?
[Appellantsâ counsel]: That [is] correct.
[Appelleesâ counsel]: And the order says full and complete
answers to all discovery requests. We submitted [requests for
production of documents]. We spent the money on that. We
asked for his deposition. We wanted the [documents] before
we did the deposition and we got neither and we are sitting here
two years later.
[Appellantsâ counsel]: Judge, I got to say this is the first time
in six months that the plaintiffâs counsel has taken the position
that they do [not] know what [is] going on with the underlying
cases. I [have] been willing. As a matter of fact, I called
[opposing counsel] â
The court: I [am] sorry to interrupt you. I do [not] think that
[is] quite what he was saying. I think where I [am] at now, I
am really focusing on â and the principle as you well know is
the law of the case may preclude me from doing something that
[is] contrary to a litigated and adjudicated decision by Judge
Djerassi. Which is specifically on this point of not cooperating
with either oral deposition testimony under oath or producing
documents that have been requested [during discovery].
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Is there a dispute that there was no [requests for production of
documents]?
[Appellantsâ counsel]: No, sir. No, sir.
***
[Appellantsâ counsel]: No. We developed the spreadsheet and
produced the spreadsheet.
The court: That [is] not the document.
[Appellantsâ counsel]: Right. Judge, this case started as a fraud
case. You stole money and you gave us fraudulent cases. We
then produced a spreadsheet that said, Wait a second.
Everything that we bought we can account for. There [is] no
fraud. And that [is] the way it has gone up until we left Judge
Glazerâs chambers.
And by the way, yes, I did raise the issue of the fact that the
complaint was unanswered. But I did [not] want to end up
here. That [is] why I raised it.
The court: Welcome back.
[Appellantsâ counsel]: Not that I did [not] want to end up in
front of you, Judge. I did [not] want to end up litigating whether
or not there [was] a default. And true, my secretary did not file
a draft amendment â
The court: I [am] never going to allow you as a professional
and former colleague to attribute your secretary in anything
other than her good work.
[Appellantsâ counsel]: Fair enough, Judge.
The court: So letâs go back. You see where I [am] stuck as a
matter of law on a preclusion order that is based upon
non-compliance with discovery which is central to the basis for
this judgment. It [is] central to the behavior of your client when
you [are] responsibly acting as a client and supporting his
counselâs efforts. And as a result, is counsel able to be candid
with opposing counsel as well as the court? This is Houston.
We [have] a problem. How do I overcome Judge Djerassiâs
order by just the suggestion that you provided spreadsheets?
[Appellantsâ counsel]: The same way we dealt with it in front
of Judge Glazer. Because Judge Glazer asked [opposing
- 11 -
J-S30007-25
counsel], What do you want to do. [Opposing counsel] said,
We could sue them.
The court: You could do that.
[Appellantsâ counsel]: They can [not] provide defenses. We
can try to pay; blah, blah, blah.
The court: You could do all those things.
[Appellantsâ counsel]: But the bottom line, Judge, there [is] no
damages.
The court: Well, wait a minute. There [is] $2.27 million dollars
worth of damages.
[Appellantsâ counsel]: They are saying the money that was
misdirected was pocketed, which we did [not do]. We
accounted for it and we can account for it.
The court: Well, that may be your good faith belief as counsel;
right? But your client has [not] been put under oath. That [is]
a problem. Your client has [not] produced documents. That
[is] a problem. And this all goes to the meritorious defense and
the underlying default. That [is] a problem. As a matter of
law[,] we [are] looking at the issue of opening a default
judgment before I get to the assumptive case and the tort case.
Without rehashing it, again you [are] the moving party on the
default. I heard your argument at law. I want to make sure I
understand that the amount of moneys in dispute are now over
$2 million dollars. And also that has been propounded
discovery that has gone unanswered and there [is] a preclusion
order that is still enforced and in effect. I have not been asked
to vacate or reconsider any of Judge Djerassiâs orders. And I
have [not] heard today any argument that they were entered
in error or for some untoward reason.
So it is your understanding. Counsel, that [is] staring you in
the face. That order of Judge Djerassiâs is significant and it is
not something that any court enters lightly in litigation. It
seems to me the difficult[y] here is not of counselâs making but
rather in his zealous representation of his client. It depends on
his client to provide that information that I required and that
has [not] happened.
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J-S30007-25
[Appellantsâ counsel]: Judge, I can only tell you that we
thought the case was settled; okay?
The court: I[t] seems like it was [not], sorry to say. I [am] not
making fun of it. This is so serious.
Id. at 32-45 (emphasis and footnote added).
The trial court, thereafter, concluded the hearing. In so doing, the trial
court trial court stated:
I have no legal issues. The burden, first of all, has to be met
to open. And then one of the heavy factors I weigh is Judge
Djerassiâs previous order.
And aside from whether or not any of the discussions during a
settlement or mediation with Judge Glazer is admissible in any
context, nobody seems to have[,] other than the plaintiff[, any
evidence that there was a mutual agreement to stay the
proceedings, and plaintiff] moved this case forward to a
judgment. Your clientâs judgment to not appear for testimony.
Not produce documents that the Rule of Civil Procedure required
to be produced or objected to. Neither of those things have
happened.
And then we have a more troubling aspect of the refusal to allow
himself to be subjected to a deposition under oath. So I [will
consider all of that. There [is] a lot here. I [am] going to review
the previous orders of court and I [will] issue an order forthwith.
Id. at 52-53.
On August 16, 2024, the trial court entered an order which stated, in
relevant part, as follows:
It is further ORDERED that [Adlerâs and Bermanâs] Petition to
Open Default is GRANTED and the court strikes the entry of
Default as to all [Appellants].
[Appellants] shall file any pleadings responsive to [Appelleesâ]
Amended Complaint within [20] days of the date of this order.
- 13 -
J-S30007-25
Trial Court Order, 8/15/24, at 1. On August 29, 2024, Appellees filed a motion
for reconsideration, asking the trial court to reconsider its August 15, 2024
order opening default judgment. The next day, on August 30, 2024,
Appellants filed an answer to Appelleesâ amended complaint. On September
9, 2024, however, the trial court entered the following order:
AND NOW, this 9th day of September, 2024, upon consideration
of [Appelleesâ] Petition for Reconsideration of the Courtâs Order
dated August 12, 2024, and [Appellantsâ] response thereto, if
any, it is hereby ORDERED that [Appelleesâ] Petition for
Reconsideration is GRANTED.
IT IS HEREBY ORDERED, having reconsidered the Courtâs Order
dated August 12, 2024, that opens . . . the entry of default as
to all [Appellants], said Order is VACATED.
IT IS HEREBY FURTHER ORDERED [Appellantsâ] Petition to Open
Default Judgment is DENIED. The default judgment entered
against [Appellants] in this action shall remain imposed against
[them] and will not be disturbed.
Trial Court Order, 9/9/24, at 1. This timely appeal followed. 3
Appellants raise the following issues for our consideration. 4
1. Did the [trial] court [] abuse its discretion by refusing to . .
. open the default judgment?
2. Is a [trial] court limited to the petition and proposed answer
when determining whether [a petition] for relief from a
default judgment is based on a meritorious defense?
____________________________________________
3 The trial court did not order Appellants to file a concise statement pursuant
to Pa.R.A.P. 1925(b).
4 We have reordered the issues presented by Appellants on appeal for ease of
discussion and disposition.
- 14 -
J-S30007-25
3. Is a [trial] court[âs] discovery order precluding defenses the
same as an order entering default judgment?
4. Can a [trial] court enter a default judgment for the failure to
file an answer to a complaint when the answer has been
filed?
5. Can a [trial] court grant the relief requested in a [motion] to
reconsider an order [opening] a default judgment without
giving the other party an opportunity to respond[?]
Appellantsâ Brief at *3 (unpaginated).
On appeal, Appellants challenge the trial courtâs order granting
Appelleesâ motion for reconsideration, vacating its August 12, 2024 order and,
ultimately, denying their petition to open default judgment. Appellants aver
that, in reviewing a petition to open judgment, a trial court must âlook solely
at the petition and answer to determine if there is a defense to the case.â
Appellantsâ Brief at *22 (unpaginated). As such, Appellants argue that, by
considering the September 21, 2023 discovery order entered by Judge
Djerassi which precluded them from âraising any defenses to [Appelleesâ]
claims pursuant to Pa.R.Civ.P. 4019(c)(2),â the trial court erred as a matter
of law. Trial Court Order, 9/21/23, at *1 (unpaginated). In addition,
Appellants point to the fact that, unlike most instances of default judgment,
â[t]his is not a matter where a defendant did not appear or did not litigate the
case.â Appellantâs Brief at *31 (unpaginated). Instead, Appellants argue that
they âactively litigated this matter for several years,â including the filing of
preliminary objections. Id. Therefore, Appellants argue that â[e]quity
demands the opening of the present default judgment.â Id.
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J-S30007-25
This Court previously stated:
Unlike a petition to strike a judgment, âa petition to open a
judgment is an appeal to the equitable powers of the court.â
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. ⊠An abuse of discretion is not a mere error of
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 or the record, discretion is abused.
Roy by & through Roy v. Rue, 273 A.3d 1174, 1186-1187 (Pa. Super. 2022)
(internal citations omitted).
Under Pennsylvania law, âa default judgment may be opened if the
moving party has (1) promptly filed a petition to open the default judgment,
(2) provided a reasonable excuse or explanation for failing to file a responsive
pleading, and (3) pleaded a meritorious defense to the allegations contained
in the complaint.â Id. at 1187 (citation omitted). Importantly, this Court has
previously explained that, when considering a petition to open a judgment,
âmatters dehors the record filed by the party in whose favor the warrant is
given, i.e., testimony, depositions, admissions, and other evidence, may be
considered by the court.â Id., citing Resolution Trust Corp. v. Copley Qu-
Wayne Associates, 683 A.2d 269, 273 (Pa. 1996).
- 16 -
J-S30007-25
In its 1925(a) opinion, the trial court set forth its rationale for granting
Appelleesâ motion for reconsideration and, ultimately, for vacating its August
12, 2024 order and denying the petition to open default judgment. It stated:
Initially, the court granted the petition to open, having noted
that the docket revealed, despite a failure to answer, the parties
were fully engaged in litigating the action and were engaged in
vigorous discovery and discovery motion practice. [Appellants]
had not failed to appear, but had filed preliminary objections.
[Appellees] sought reconsideration, setting forth in detail[] the
factors necessary to satisfy an application to open a default and
demonstrating that [Appellants] had failed to meet the
requisites of those factors. The motion for reconsideration also
presented the court with the transcript of the oral argument.
The motion outlined how the petition to open was not timely, a
factor that the court did not consider because of the partiesâ
regular engagement in the litigation. However, the more
difficult obstacle, in the courtâs view on reflection, was the
requirement of a meritorious defense. [Appellees] pointed out
that the court had awarded sanctions for failure to comply with
its discovery orders, sanctions that appear to have taken
automatic effect upon a failure to comply within ten days. The
courtâs previous ruling, without the benefit of the transcript, did
not give full consideration or effect to the previous orders, which
bind this court as the law of the case. The orders preclude
[Appellants] from raising any defenses to [Appelleesâ] claim.
The courtâs colloquy at the hearing on the petition to open
examined defense counsel at length as to the preclusive effect
of these discovery orders. Upon review of the transcript, the
court determined that defense counsel had no real answer to
how those prior orders did not impact the ability to assert a
meritorious defense. Thus, the court determined that
[Appellees] had met the requirements for reconsideration in
pointing out that the courtâs order ignored the binding effect of
the prior orders, and the court granted reconsideration.
It is not for this court to agree or disagree with the substance[]
of the prior discovery orders. Having concluded that those
orders were binding, the court determined that its previous
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decision granting the petition to open was in error and vacated
the ruling.
Trial Court Opinion, 3/14/25, at *1-*2 (unpaginated).
We discern no abuse of discretion on the part of the trial court. Contrary
to Appellantsâ claims, our case law specifically permits a trial court to look to
âtestimony, depositions, admissions, and other evidenceâ when considering a
petition to open a judgment. Roy, 273 A.3d at 1187.5 Thus, the trial court
acted well within its discretion in considering the effect of the September 21,
2023 order on the pending litigation. Importantly, during the July 9, 2024
hearing, it was firmly established that Appellants failed to comply with the
terms of the order. See N.T. Hearing, 7/9/24, at 41 (Appellantsâ counsel
admitting that they did not produce the requested documentation to
Appellees). It was also established that Appellants never challenged the
propriety of the September 21, 2023 preclusion order. See id. at 44. Finally,
____________________________________________
5 Appellants cite Reisinger v. York Hosp., 2013 WL 11253933 *1 (Pa. Super.
2013) (non-precedential decision) to support their claim that the trial court
was required to look âsolely on the petition and answer and accompanying
briefsâ when determining whether to open judgment. See id. at *4.
Appellants reliance on Resinger is problematic for two reasons. First, it is a
non-precedential decision, issued in 2013, and therefore was improperly cited
to this Court. See Pa.R.A.P. 126(b) (allowing parties to cite an unpublished,
non-precedential memorandum decision issued by this Court if it is issued
after May 1, 2019). Second, and far more importantly, Resinger stands for
the exact opposite proposition than Appellants advocate. Indeed, in
Resinger, a panel of this Court reversed a trial courtâs order denying the
appellantâs petition to open and/or strike judgment of non pros because it
relied solely on the petition, answer, and accompanying brief and failed to
consider âadditional discoveryâ or conduct an evidentiary hearing considering
the âdisputed issues of material fact.â Reisinger, 2013 WL 11253933 at
*3-*4.
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Appellants did not present any evidence at the July 9, 2024 hearing to
demonstrate that the September 21, 2023 order was invalid. See id. By its
very terms, the September 21, 2023 order prevents Appellants from
presenting a defense to Appelleesâ claims. Hence, the trial court astutely
concluded that, considering the September 21, 2023 order, Appellants could
not tender a meritorious defense and, as such, default judgment was
appropriate. As it is well established, âif a petition to open a default judgment
fails to fulfill any one prong of the three-prong test, then the petition must be
denied. â[T]he trial court cannot open a default judgment based on the
âequitiesâ of the case when the defendant has failed to establish all three of
the required criteria.ââ Roy, 273 A.3d at 1188-1189 (citations omitted).
Before we conclude, however, we briefly address the various ancillary
arguments Appellants raise against the trial courtâs order. First, Appellants
point to the fact that, on August 30, 2024, they filed an answer to Appelleesâ
amended complaint, which the trial court directed them to do in its August 12,
2024 order opening default judgment. Because a âdefault judgment cannot
be entered when there is an answer on the record,â Appellants claim that the
subsequent entrance of default judgment constitutes an error of law.
Appellantâs Brief at *17 (unpaginated). This claim lacks merit. âAs a general
rule, when a court vacates a previously entered order, the legal status of a
case is the same as if the order never existed.â Reading City Dev. Auth. v.
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Lucabaugh, 829 A.2d 744, 749 (Pa. Commw. 2003).6 Hence, Appellantsâ
answer, filed pursuant to âan order [that] was a nullity from the outset,â is
also a legal nullity and cannot operate to prevent the trial court from entering
default judgment. Id.
Second, Appellants argue that the trial courtâs September 9, 2024 order
is âlegally invalidâ because the trial court âdid not provide [Appellants] an
opportunity to respond to [Appelleesâ motion] for reconsideration before it
granted the relief requested and entered a default judgment.â Appellantâs
Brief at *17-*18 (unpaginated). More specifically, Appellants contend that,
under Pennsylvania Rule of Civil Procedure 208.37 and Philadelphia Local Rule
____________________________________________
6 âAlthough the decisions of the Commonwealth Court are not binding on this
Court, we may look to them for their persuasive value.â Commonwealth v.
Brown, 240 A.3d 970, 973 n.3 (Pa. Super. 2020) (citation omitted).
7 Pennsylvania Rule of Civil Procedure 208.3 states, in relevant part, as
follows:
(a) Except as otherwise provided by subdivision (b), the court
shall initially consider a motion without written responses or
briefs. For a motion governed by this subdivision, the court
may not enter an order that grants relief to the moving party
unless the motion is presented as uncontested or the other
parties to the proceeding are given an opportunity for an
argument.
(b) A court, by local rule, numbered Local Rule 208.3(b), may
impose requirements with respect to motions listed in the rule
for the filing of a response, a brief or both. Where a response
is required, any party opposing a motion governed by Local Rule
208.3(b) shall file the response within [20] days after service
of the motion, unless the time for filing the response is modified
by court order or enlarged by local rule.
Pa.R.C.P. 208.3(a)-(b).
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of Civil Procedure 208.3(a),8 the trial court was required to wait for Appellantsâ
response to Appelleesâ motion for reconsideration before entering its
September 9, 2024 order. We note, however, that under 42 Pa.C.S.A. § 5505,
a âtrial court has broad discretion to modify or rescind an order, and this power
may be exercised sua sponte.â Haines v. Jones, 830 A.2d 579, 584 (Pa.
Super. 2003). Moreover, as âa motion for reconsideration is addressed to the
sound discretion of the trial court, the trial court is obviously in the best
position to decide if additional testimony, briefs or argument are necessary to
the court in reassessing its original order.â Moore v. Moore, 634 A.2d 163,
167 (Pa. 1993). It is apparent that the trial court, in its discretion, determined
that it did not need additional briefing or argument to adjudicate Appelleesâ
motion for reconsideration. Because review and consideration of a motion for
reconsideration is a matter solely within the discretion of the trial court, we
decline Appellantsâ invitation to reverse the trial courtâs September 9, 2024 on
this basis. See Bollard & Associates, Inc. v. PA Associates, 223 A.3d
698, 705 n.5 (Pa. Super. 2019) (declining to consider that the trial court
âcommitted reversible error by ruling prematurely on the [motion] for
reconsideration before any answer was due.â).
____________________________________________
8 Philadelphia Local Rule of Civil Procedure 208.3(a) allows a trial court to
initially consider âmotion for reconsiderationâ without a written response by
the opposing counsel. Phila. Co. R.C.P. 208(a). It provides, however, that
âthe assigned judge may enter a preliminary order vacating the order in
question pending receipt of the response to the motion.â Id. at
208(a)(3) (emphasis added).
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For the foregoing reasons, we affirm the trial courtâs September 9, 2024
order denying Appellantsâ petition to open judgment.
Order affirmed.
Date: 11/19/2025
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Case Information
- Court
- Pa. Super. Ct.
- Decision Date
- November 19, 2025
- Status
- Precedential