Opinion
1293 CD. 2019
08-30-2021
City of Philadelphia v. Bryan Neely, Appellant
OPINION NOT REPORTED
Submitted: February 19, 2021
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge.
MEMORANDUM OPINION
CHRISTINE FIZZANO CANNON, JUDGE.
Bryan Neely (Neely) appeals from the July 31, 2019 order of the Court of Common Pleas of Philadelphia County (trial court) denying his petition to open the May 14, 2019 default judgment (Petition) entered in favor of the City of Philadelphia (City) imposing a $1,138,000 fine against Neely. The default judgment followed Neely's failure to respond to a complaint filed against him (Complaint) by the City alleging violations of The Philadelphia Code of General Ordinances (Code)on Neely's property located at 1261 Point Breeze Avenue, Philadelphia (the Premises). Upon review, we affirm the trial court's denial of the Petition, vacate the trial court's $1,138,000 judgment award, and remand for further proceedings to determine an appropriate fine.
Phila., Pa., Code §§ 1-101 to 22-1409 (2020).
I. Background
In April 2017, the Philadelphia Department of Licenses and Inspections (Department) issued Neely a notice of violation, informing him that the Premises had been declared unsafe pursuant to Section PM-108.1 of the Code and that he was required to repair or demolish the structure within 30 days. Complaint, Exhibit A, Final Warning/Unsafe Building, 4/20/17 (Notice) at 1, Reproduced Record (R.R.) at 20a. The Notice advised Neely as follows:
The Philadelphia Property Maintenance Code, also referred to as Subcode "PM," is located within Title 4 (The Philadelphia Building Construction and Occupancy Code) of the Code. Section PM-108.1 of the Code provides:
When a structure or equipment is found by the [C]ode official to be unsafe, or when a structure is found unfit for human occupancy, or is found unlawful, such structure shall be condemned pursuant to the provisions of this code.Phila., Pa., Code § PM-108.1. Section PM-108.1.1 of the Code further specifies:
An unsafe structure is one that is found to be dangerous to the life, health, property or safety of the public or the occupants of the structure . . . because such structure . . . is so damaged, decayed, dilapidated, structurally unsafe or of such faulty construction or unstable foundation, that partial or complete collapse is possible.Phila., Pa., Code § PM-108.1.1.
Although titled 'Final Warning, Unsafe Building,' the Notice was the first issued against Neely by the Department in the present matter. See Notice, R.R. at 20a. Further, the City refers to the Notice as the 'Initial Violation Notice and Order' in its Complaint. See Complaint at 3, ¶ 9, R.R. at 14a.
Fines shall be imposed from 04/20/17 and shall be assessed in the amount of $150 to $2000 per violation each and every day the violation remains uncorrected.
Your failure to correct the violations may result in the revocation or suspension of certain licenses and permits.
Your failure to correct the violations may also result in the City filing a legal action against you to obtain compliance, an injunction, and the imposition of fees and fines.
Notice at 1-2, R.R. at 20a-21a. Neely did not correct the alleged violation.
In June 2018, the Department issued Neely another warning (Final Warning) deeming the Premises unsafe pursuant to Section PM-108.1.4 of the Code. Complaint, Exhibit B, Final Warning/Unsafe Building, 4/20/17 (Final Warning) at 1, R.R. at 23a. The Department directed Neely to obtain all permits required by the City and warned that failure to bring the Premises into compliance within 30 days could result in the City taking action to address the Code violations at his expense. Id. The Department reiterated its warning regarding the accrual of fines and reinspection fees. See Final Warning at 1-2, R.R. at 23a-24a. Neely again failed to remedy the Code violations. Complaint at 3, ¶ 10, R.R. at 14a.
Pursuant to Section PM-108.1.4 of the Code, "[a]n unlawful structure is one found in whole or in part . . . [to have been] erected, altered or occupied contrary to law." Phila., Pa., Code § PM-108.1.4.
Neely did not file an administrative appeal from either of the notices of violation. See Complaint at 3, ¶ 13, R.R. at 14a. In April 2019, the City filed the Complaint against Neely seeking injunctive relief and requesting that the trial court order Neely to pay a fine of $2,000 for each day the Premises remained out of compliance with the Code. Complaint at 4-5, R.R. at 15a-16a. The City averred that, as of the date of filing, Neely had accrued $1,138,000 in cumulative statutory fines for the Code violations identified in the Notice. Complaint at 5, ¶ 23, R.R. at 16a. Further, the City sought $2,400 in reinspection fees, plus any additional fees it might incur conducting subsequent reinspections of the Premises in accordance with Section A-901.12.2 of the Code, Phila., Pa., Code § A-901.12.2. Complaint at 5-6, ¶¶ 25-28, R.R. at 16a-17a. As required by Rule 1018.1 of the Pennsylvania Rules of Civil Procedure, the Complaint was endorsed with a Notice to Defend advising Neely to consult an attorney and providing contact information for the Philadelphia Bar Association's lawyer referral and information service. Notice to Defend, R.R. at 7a; see Pa.R.C.P. No. 1018.1.
Section A-601.3 of the Code designates violation of Section PM-108 as a Class III offense, and mandates that such violations "shall be subject to the maximum fine set forth in subsection 1-109(3) of [t]he [] Code." Phila., Pa., Code § A-601.3(13). Section 1-109(3)(e) provides for a maximum fine of $2,000 for each Class III offense committed on or after January 1, 2009. Phila., Pa., Code § 1-109(3)(e). Section A-601.4 of the Code further provides that "[e]ach day that a violation continues after issuance of a notice or order shall be deemed a separate offense." Phila., Pa., Code § A-601.4.
The City explained that Neely accrued the $1,138,000 aggregate statutory fine over the course of 669 days at $2,000 per Class III Code violation, with each day constituting a separate violation. See Complaint at 5, ¶ 23, R.R. at 16a; see also Phila., Pa., Code §§ 1-109(3)(e); A-601.4.
In April 2019, the trial court issued a Rule to Show Cause with a return/hearing date of July 2, 2019. Rule to Show Cause, 4/3/19, R.R. at 26a. The trial court stated that the purpose of the hearing was to determine whether to enter any orders against Neely for failure to maintain the Premises in accordance with the Code. Id. The trial court advised Neely that failure to attend the July 2, 2019 hearing could result in the imposition of fines or the entry of other appropriate orders. Id.
Neely did not respond to the Complaint. See Trial Ct. Op. at 2, R.R. at 118a. On May 1, 2019, despite the trial court's scheduling of a hearing, the City sent Neely a 10-day notice of praecipe for default judgment via certified mail, again suggesting that Neely retain counsel and providing contact information for the Philadelphia Bar Association's lawyer referral and information service. See Praecipe for Default Judgment at 1, R.R. at 27a (citing Pa.R.C.P. No. 237.1(2)); Notice of Praecipe for Default Judgment, R.R. at 33a. Neely still did not respond to the Complaint.
Rule 237.1(2) of the Pennsylvania Rules of Civil Procedure provides that a notice of praecipe for entry of judgment by default shall contain a certification that a written notice of intention to file the praecipe was mailed or delivered after the failure to plead to a complaint and at least 10 days prior to the filing of the praecipe to the party against whom judgment is to be entered and to the party's attorney of record, if any. Pa.R.C.P. No. 237.1(2).
On May 14, 2019, the City filed a praecipe for entry of judgment by default against Neely in the amount of $1,138,000, and the trial court entered the judgment the same day. Praecipe for Default Judgment at 1, R.R. at 27a; Trial Ct. Docket at 2, R.R. at 2a. The prothonotary for the trial court provided notice to the parties of the entry of the default judgment in accordance with Rule 236(a)(2) of the Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 236(a)(2). See Trial Ct. Docket at 2, R.R. at 2a.
Rule 1037(b)(1) of the Pennsylvania Rules of Civil Procedure provides:
The prothonotary shall 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, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages.Pa.R.C.P. No. 1037(b)(1).
On July 2, 2019, the trial court held the hearing on the Rule to Show Cause. Transcript of Testimony (T.T.), 7/2/19 at 7, R.R. at 41a. Neely's counsel stated that he had just learned of the entry of the default judgment against his client one day prior, on July 1, 2019, and counsel for the City agreed to a continuance to permit Neely's counsel to file the Petition. Id. at 4, R.R. at 40a. Neely's counsel filed the Petition the following day. Trial Ct. Docket at 2, R.R. at 2a; Petition at 1-7, 7/3/19, R.R. at 48a-54a. Neely provided an affidavit in support of the Petition, acknowledging that he received the City's notice of praecipe for default judgment on or about May 1, 2019. Neely Affidavit at 1, ¶ 4, R.R. at 64a; see also Petition at 2, ¶ 6, R.R. at 49a. Neely further averred that, sometime thereafter, he telephoned and spoke with Brendan Philbin, Esquire (Attorney Philbin) to discuss his concerns about the notice. Neely Affidavit at 1, ¶ 4, R.R. at 64a. Neely alleged that Attorney Philbin informed him he "would be ok" if he "continued to act quickly" to bring the Premises into compliance and if he "had permits in place by the . . . July 2, 2019 hearing[.]" Id. at 2, ¶ 5, R.R. at 65a. Neely further attested that Attorney Philbin failed to explain the risk of a default judgment or to advise him to retain counsel and to respond immediately to the Complaint. Id. at 2, ¶ 6, R.R. at 65a. Neely asserted that he was not aware that a default judgment was entered on May 14, 2019, although he does not specifically deny receipt thereof. Id. at 2, ¶ 8, R.R. at 65a. Neely attested that during the week of June 11, 2019, he secured counsel to represent him at the July 2, 2019 hearing. Id. at 2, ¶ 9, R.R. at 65a. Neely averred that he did not inform his counsel of the default judgment at that time because he was not aware of it. Id.
Neely fails to specify whether he contacted Attorney Philbin before or after entry of the default judgment by the trial court on May 14, 2019. See Neely Affidavit at 1-2, ¶¶ 4-8, R.R. at 64a-65a.
Attorney Philbin was listed as counsel for the City in the notice of praecipe for default judgment. See R.R. at 33a. The City denied Neely's averment regarding his phone call with Attorney Philbin, asserting that after reasonable investigation it lacked sufficient knowledge or information to form a belief as to the truth of the averment. See City's Response to Neely's Petition at 2, ¶¶ 6-8, R.R. at 75a.
On July 31, 2019, the trial court entered an order denying Neely's Petition. Trial Ct. Order, 7/31/19, R.R. at 91a. Neely filed an appeal from that order.
"A lower court's ruling refusing to open a default judgment will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion." Schultz v. Erie Ins. Exchange, 477 A.2d 471, 472 (Pa. 1984). "An abuse of discretion exists when the trial court renders a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias or ill will." King v. Pittsburgh Water & Sewer Auth., 139 A.3d 336, 345 (Pa. Cmwlth. 2016).
A. Trial Court's Refusal to Open the Default Judgment
"Generally, default judgments are not favored." Kennedy v. Black, 424 A.2d 1250, 1252 (Pa. 1981). The purpose of a default judgment is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim. Peters Twp. Sanitary Auth. v. Am. Home & Land Dev. Co., 696 A.2d 899, 902 (Pa. Cmwlth. 1997) (citing Kennedy, 424 A.2d at 1252). To succeed in opening a default judgment, a petitioner must first establish: (i) the petition to open the default judgment was promptly filed; (ii) he has a reasonable excuse for failing to answer the complaint; and (iii) he has a meritorious defense to the action. Pa. Off. of Att'y Gen., Bureau of Consumer Prot. v. Lubisky, 88 A.3d 328, 334 (Pa. Cmwlth. 2014). These three factors "should be evaluated in light of all the circumstances and equities of the case." Id. "A petition to open a judgment is addressed to the equitable powers of the court and is a matter of judicial discretion." Schultz, 477 A.2d at 472. However, a trial court may only open a default judgment based on the equities of the case when the defendant has first established all three of the required criteria. Lubisky, 88 A.3d at 334.
Regarding the first requirement for opening a default judgment, Neely asserts that he promptly filed his Petition on July 3, 2019, just two days after his attorney learned of the judgment on July 1, 2019. See Neely's Br. at 7 & 12-14. The City argues that Neely's Petition was not prompt, as Neely admits receiving the City's notice of praecipe for default judgment in early May of 2019 and fails to establish an adequate reason for filing his petition 50 days after entry of default judgment on May 14, 2019. See City's Br. at 10-13.
"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." Castings Condo. Ass'n, Inc. v. Klein, 663 A.2d 220, 223 (Pa. Super. 1995); see also Lubisky, 88 A.3d at 334 (citing Ruczynski v. Jesray Constr. Corp., 326 A.2d 326, 328 (Pa. 1974)).
Promptness of a petition to open a default judgment is measured from the date that notice of entry thereof is received. Ruczynski, 326 A.2d at 328; Sales & Mktg. Grp., Inc. v. Pa. Hum. Rels. Comm'n (Pa. Cmwlth., No. 198 C.D. 2017, filed Jan. 4, 2018), slip op. at 6-7 (affirming denial of petition to open default judgment because "the timeliness of a petition to open judgment is measured from the date that notice of the entry of the default judgment is received," notwithstanding defendant's assertion that it filed the petition within one month after its attorney discovered the default judgment). Here, Neely attested that he was not aware that the default judgment was entered on May 14, 2019. See Neely Affidavit at 2, ¶ 8, R.R. at 65a; see also Neely's Br. at 12. Neely asserts that he promptly filed his Petition on July 3, 2019, just two days after his attorney discovered the default judgment on July 1, 2019. See Neely's Br. at 7 & 12-14. Although the prothonotary sent Neely written notice of the entry of default judgment on May 14, 2019, whether and when Neely received notice of the entry of default judgment is not apparent from the record. However, the Petition was filed roughly 50 days after the entry of judgment.
This Court's unreported memorandum opinions issued after January 15, 2008 may be cited for their persuasive value. 210 Pa. Code § 69.414(a).
Courts have deemed delays of less than 50 days excessive. See McCoy v. Pub. Acceptance Corp., 305 A.2d 698, 700 (Pa. 1973) (delay of "two and one-half weeks can hardly be considered prompt"); Flynn v. Am. W. Airlines, 742 A.2d 695, 698 (Pa. Super. 1999) (defendant offered no explanation why petition to open was not filed until 24 days after receiving notice thereof); B.C.Y., Inc. Equip. Leasing Assocs. v. Bukovich, 390 A.2d 276, 278 (Pa. Super. 1978) ("Even though a delay of 21 days is not excessive, it can hardly be considered prompt."). Further, "[i]n cases where [] appellate courts have found a 'prompt' and timely filing of [a] petition to open a default judgment, the period of delay has normally been less than one month." U.S. Bank N.A. v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009).
Here, as explained above, the record does not establish when Neely received notice of the judgment. Thus, we are unable to determine from the record whether Neely promptly filed the Petition. However, in light of our disposition of the other two factors, the lack of clarity in the record concerning this factor is not fatal to our ability to dispose of this appeal.
To satisfy the second requirement for opening a default judgment, a petitioner must establish that his failure to respond to a complaint was due to excusable negligence, i.e., "an oversight rather than a deliberate decision not to defend." Seeger v. First Union Nat'l Bank, 836 A.2d 163, 167 (Pa. Super. 2003) (citation and quotation marks omitted). Neglect is not excusable where a petitioner "has failed to show that [he or she] acted in a manner which would reasonably result in the protection of legal interests." Chester Township v. Steuber, 456 A.2d 669, 671 (Pa. Cmwlth. 1983) (citation and quotation marks omitted).
Here, Neely asserts that Attorney Philbin informed him he "would be ok" if he acted promptly to remedy the violations and to obtain the necessary permits by the July 2019 hearing. Id. at 2, ¶ 5, R.R. at 65a. As noted above, the City denied Neely's allegation regarding his purported phone call with Attorney Philbin. See supra note 9; City's Response to Neely's Petition at 2, ¶¶ 6-8, R.R. at 75a. Moreover, even assuming the veracity of Neely's recounting of the conversation, Attorney Philbin's alleged statement did not excuse Neely's failure to respond to the Complaint. Neely does not allege that Attorney Philbin stated Neely could refrain from responding to the Complaint or that the City would forego pursuing default judgment if Neely obtained permits and remedied the violations prior to the hearing. Attorney Philbin's purported statement that Neely "would be ok" if he addressed the Code violations was equivocal; it may have been intended merely to convey that such action by Neely would halt the accrual of statutory fines once the violations were remedied. Thus, Neely's alleged mistaken assumption regarding his obligations and the ramifications of his inaction following his conversation with Attorney Philbin does not excuse his failure to respond to the Complaint. Cf. McEvilly v. Tucci, 362 A.2d 259, 261-62 (Pa. Super. 1976) (affirming denial of petition to open default judgment where defendants sent plaintiffs a letter expressing the mistaken assumption that plaintiffs would not require defendants to file an answer or otherwise plead due to pending settlement negotiations, and then unjustifiably relied on plaintiffs' lack of response as an indication of plaintiffs' intent to forego pursuing a default judgment).
Neely's counsel asserted at the July 2019 hearing that "we do have our permits in place" and that "the [Premises] will be demolished very soon." T.T., 7/2/19 at 8, R.R. at 41a. Counsel for the City noted that a permit was issued to Neely four days prior to the hearing. See id. at 10, R.R. at 42a.
Further, both the notice to defend appended to the Complaint and the notice of praecipe for default judgment clearly and conspicuously advised Neely to retain counsel immediately and provided contact information for a lawyer referral service. See Notice to Defend, R.R. at 7a; Notice of Praecipe for Default Judgment at 1, R.R. at 33a. "[A] defendant's failure to engage an attorney is not in and of itself a sufficient excuse for failure to answer a complaint. . . . It is a defendant's responsibility to respond to, and not ignore, a claim." Duffy v. Gerst, 429 A.2d 645, 651 (Pa. Super. 1981). Neely's failure to contact counsel until the week of June 11, 2019, roughly two months after accepting service of the Complaint and more than five weeks after receiving the 10-day notice of praecipe for default judgment does not constitute excusable negligence, as such inaction could not reasonably protect Neely's legal interests. Cf. Mallory, 982 A.2d at 996 (affirming denial of mortgagor's petition to open a default judgment entered following mortgagor's failure to file a responsive pleading in a foreclosure action, where, despite numerous notices to secure counsel, mortgagor did not do so until approximately three months after the complaint was filed and six weeks following entry of judgment); Steuber, 456 A.2d at 672 (affirming denial of township's petition to open default judgment entered on the basis of the township's failure to defend against a personal injury action, where the township's failure to hire legal counsel for 18 months or to take other necessary action "indicate[d] that the township did not reasonably protect its legal interests"). We agree with the City that Neely failed to provide a reasonable excuse for his failure to respond to the Complaint.
Regarding the third requirement for opening a default judgment, "[t]he requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief. The defense does not have to prove every element of its defense; however, it must set forth the defense in precise, specific and clear terms." Easton Condo. Ass'n, Inc. v. Nash, 127 A.3d 856, 858 n.5 (Pa. Cmwlth. 2015) (quoting Seeger, 836 A.2d at 166) (brackets omitted); see also Duffy, 429 A.2d at 652 ("In deciding whether a petitioner has shown a meritorious defense, . . . we do not decide whether the defense will prevail, but only whether it will be sufficient to take the case to the jury, if the judgment is opened and the petitioner permitted to defend the claim.").
Here, Neely contends that he possesses a meritorious defense because the aggregate fine of $1,138,000 imposed by the trial court is "a gross and ludicrous amount" that exceeds the City's power under Section 1-100 of the City's Home Rule Charter and Section 17 of the First Class City Home Rule Act, 53 P.S. § 13131;constitutes an excessive fine in contravention of Article I, Section 13 of the Pennsylvania Constitution, Pa. Const. art. I, § 13, and the Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII; and violates his due process rights. See Neely's Br. at 15-23. The City counters that Neely's purported defense does not address the Code violations, but rather challenges the amount of the fine, such that any potential relief would be limited to a hearing regarding the amount of the statutory fine. See City's Br. at 14.
Philadelphia adopted its home rule charter under the terms of the First Class City Home Rule Act on April 17, 1951; it went into effect on January 7, 1952.
Act of April 21, 1949, P.L. 655, as amended, 53 P.S. §§ 13101-13157.
We agree with the City that Neely's excessive fines challenge fails to establish a meritorious defense to the Code violations. Neely's failure to appeal either the Notice or the Final Warning resulted in a deemed admission of the Code violations on the Property. See City of Philadelphia v. Broad & Olney All., LP, 238 A.3d 540 (Pa. Cmwlth. 2020) (property owner admitted the charged violations of the Code by failing to appeal the notice of violation); City of Philadelphia v. DY Props., LLC, 223 A.3d 717, 725 (Pa. Cmwlth. 2019), appeal denied, 236 A.3d 1052 (Pa. 2020) ("it [was] undisputed that [building owner] violated the Code" where building owner failed to appeal either the first or the second notice of violation issued by the City).
As Neely fails to satisfy any of the prerequisites for opening a default judgment, we conclude that the trial court did not abuse its discretion in refusing to open the default judgment. See Schultz, 477 A.2d at 472; Lubisky, 88 A.3d at 334.
B. Excessiveness of Judgment Amount
Neely argues that one reason why the trial court should have opened the judgment was because the amount of the default judgment was excessive. As discussed in the previous section, we agree with the trial court that the default judgment itself was properly entered. Nevertheless, we conclude that the trial court erred in refusing to consider Neely's challenge to the propriety of the judgment amount, which required a separate determination even though the default judgment was not opened.
First, we reject the City's assertion that Neely waived his excessive fines argument by failing to respond to the Complaint. Unless a party defaults on the basis of inaction following some initial participation in a matter, questions of waiver in the context of a petition to open judgment by default necessarily pertain to whether a petitioner raised an issue in the petition to open the judgment. See, e.g., Mother's Rest. Inc. v. Krystkiewicz, 861 A.2d 327, 337 (Pa. Super. 2004). Here, Neely challenged the aggregate fine as excessive on several bases in his first filing in the instant action, the Petition. See Petition at 6-7, ¶¶ 23 & 26, R.R. at 53a-54a. Thus, we disagree with the City's assertion that Neely waived his challenge to the amount of the fine.
In his concise statement of errors complained of on appeal (Concise Statement), Neely asserted the fine was excessive for four separate reasons: it was a gross abuse of the City's power; it violated the constitutional prohibition against excessive fines in Article I, Section 13 of the Pennsylvania Constitution, Pa. Const. art. I, § 13; it violated the similar prohibition against excessive fines in the Eighth Amendment to the United States Constitution, U.S. Const. amend. VIII; and it violated due process because it was "irrational, unreasonable, and punitive in nature" (citing Commonwealth v. Hegenstaller, 699 A.2d 797 (Pa. Cmwlth. 1997)), as well as "'grossly out of proportion' with the severity of the wrong committed" (quoting Commonwealth v. Strunk, 582 A.2d 1326, 1331 (Pa. Super. 1990)). Concise Statement, ¶¶ 3-6, R.R. at 114a-15a. However, despite having directed the filing of the Concise Statement, the trial court, in its subsequent opinion pursuant to Pa. R.A.P. 1925(a), did not give serious consideration to the issues raised. Instead, the trial court simply disposed of the issues in four identical paragraphs in which it cited the City's authority to impose fines under its applicable ordinance. See R.R. at 125a-29a.
The Pennsylvania Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed . . . ." Pa. Const. art. I, § 13.
The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed . . . ." U.S. Const. amend. VIII. The Excessive Fines Clause of the Pennsylvania Constitution is coextensive with the Eighth Amendment to the United States Constitution. See Commonwealth v. Real Prop. & Improvements Commonly Known as 5444 Spruce St., 832 A.2d 396, 399 (Pa. 2003).
"[I]f a sentence imposed is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment." Borough of Kennett Square v. Lal, 643 A.2d 1172, 1175 (Pa. Cmwlth. 1994) (citing Commonwealth v. Martin, 477 A.2d 555, 557 (Pa. Super. 1984) (emphasis added)); see also Tesauro v. Perrige, 650 A.2d 1079, 1081 (Pa. Super. 1994) ("[t]he decision to grant, or not to grant, a new trial based on the excessiveness of a jury verdict is within the sound discretion of the trial court," and denial of a request for a new trial will be upheld on appeal unless the verdict is "so grossly excessive that it shocks the court's sense of justice"). Thus, where the amount of a fine is challenged, the trial court must determine the propriety of that amount as well as the statutory authority for imposition of a fine. For example, "[t]o determine whether the [E]xcessive [F]ines [C]lause has been violated, '[a] court must consider whether the statutory provision imposes punishment; and if so, whether the fine is excessive.'" City of Philadelphia v. Okamoto (Pa. Cmwlth. No. 51 C.D. 2019, filed Apr. 29, 2020), slip op. at 10 (quoting 5444 Spruce Street, 832 A.2d at 399). "The touchstone of the constitutional inquiry under the Excessive Fines Clause is the principle of proportionality: The amount of the [fine] must bear some relationship to the gravity of the offense that it is designed to punish." United States v. Bajakajian, 524 U.S. 321, 334 (1998); see also Commonwealth v. Eisenberg, 98 A.3d 1268, 1279-80 (Pa. 2014) ("[b]y its plain language, the [Excessive Fines C]lause employs a concept of proportionality; the difficulty is articulating a principle by which to measure excessiveness or proportionality"). As our Supreme Court has explained:
The primary purpose of a fine or a penalty is twofold: to punish violators and to deter future or continued violations. Since it serves not only as a punishment but also as a deterrent, the amount of the fine can be raised to whatever sum is necessary to discourage future or continued violations, subject, of course, to any restriction imposed on the amount of the fine by the enabling statute or the Constitution.Id. at 1283 (quoting Commonwealth v. Church, 522 A.2d 30, 34 (Pa. 1987)) (brackets omitted). Further, "[a] trial court should weigh mitigating and aggravating factors that include: the history and character of the defendant; the nature and circumstances of the offense; and the defendant's attitude." Okamoto, slip op. at 10 (citing Lal, 643 A.2d at 1175). However, "[our Supreme Court] and [this] Court have rejected the notion that there must be strict proportionality between the harm resulting from the offense and the penalty imposed." Eisenberg, 98 A.3d at 1281. Thus, a fine "violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense." Bajakajian, 524 U.S. at 334. Moreover, a fine may be deemed unconstitutionally excessive where "the amount . . . [is] so great as itself to be confiscatory and beyond the bounds of all reason and justice." Church, 522 A.2d at 34; see also Lal, 643 A.2d at 1175 (holding, in case involving defendant's accrual of fines due to violations of borough's property maintenance code, that "if a sentence imposed is within the statutory limits, there is no abuse of discretion unless the sentence is manifestly excessive so as to inflict too severe a punishment").
Here, Neely specifically averred that the fine imposed by the City was unconstitutionally excessive. Notably, the City implicitly agrees that a determination on this issue is required, notwithstanding the entry of a default judgment. The City argues that "the record is not ripe for a final resolution of []Neely's excessive fines challenge," asserting "that issue requires weighing the amount of the penalty against the gravity of the offense," including evidence regarding the public safety hazard posed by the Premises, which the City contends it did not previously have the opportunity to present before the trial court. City's Br. at 15 (citing Eisenberg, 98 A.3d at 1281).
Facially, the amount of the fine here is so large that it could well shock the conscience of a court. The City was authorized to impose a fine of $150 to $2,000 per day; it imposed the maximum daily fine allowable, and it did so for 669 days as of the date the Complaint was filed and sought ongoing fines to an undetermined date, without providing any evidence of the propriety or necessity of such a massive fine. Even though Neely failed to establish facts entitling him to open the default judgment, we conclude that, at a minimum, the trial court was required to analyze separately the issues bearing on the propriety of the fine amount, taking evidence if necessary. See Commonwealth v. Halstead, 79 A.3d 1240, 1247 (Pa. 2013) (vacating imposition of fines stemming from property owner's violation of borough's property maintenance ordinance and remanding the matter to the trial court to re-evaluate whether the fines were excessive and to take additional evidence, if warranted; holding that "the trial court limited its analysis and did not consider a broader range of factors," such that "this Court [could not] make a meaningful evaluation of the question of whether the trial court imposed a penalty that was too severe"). The trial court, however, began and ended its analysis at its conclusory determination that the fine was authorized under the ordinance, without considering Neely's asserted reasons as to why it was excessive. By so doing, the trial court committed legal error and abused its discretion. See Lal, 643 A.2d at 1175.
Moreover, the entry of a default judgment does not alter our analysis. Although the City requested entry of judgment by default for $1,138,000, this amount was not ascertainable as a sum certain in its Complaint. See Praecipe for Default Judgment, R.R. at 27a; Complaint at 4-5, R.R. at 15a-16a; Pa.R.C.P. No. 1037(b)(1). Even though the City averred in its Complaint that Neely had accrued $1,138,000 in fines under the Code as of the date of the filing of the Complaint, the City requested, in its prayer for relief, only that Neely pay a fine of $2,000 for the cited Class III Code violations for each day the violations remained uncorrected. See Complaint at 5, R.R. at 16a. Thus, damages should have been assessed in a separate proceeding pursuant to Pa.R.C.P. No. 1037(b)(1). See Maiorana v. Farmers & Merchs. Bank, 466 A.2d 188, 190 (Pa. Super. 1983) (assessment of damages directed by the prothonotary was not authorized by Pa.R.C.P. No. 1037(b)(1), where "complaint did not express a claim for a sum certain or a sum which could be made certain by computation"). The Superior Court has explained:
Once the prothonotary has entered the default judgment, the next step involves the determination of the appropriate remedy for the opponent's default. In those actions at law where the amount of damages may be ascertained from the pleadings, an assessment of damages will accompany the prothonotary's entry of the default judgment. See Pa.R.C.P. [No.] 1037(b)(1). In those instances where the amount of legal damages is not certain or where the plaintiff has sought equitable relief, the trial court has the independent obligation to fashion the appropriate relief at a future date.Krystkiewicz, 861 A.2d at 335 (emphasis added).
We emphasize that this requirement for a separate determination of the damage amount neither affects nor is affected by the validity of the underlying default judgment. The factors set forth in Lubisky regarding opening a default judgment-prompt filing of a request, a reasonable excuse for failing to answer the complaint, and a meritorious defense to the action, 88 A.3d at 334-are separate from the trial court's obligation to determine the correct amount of the judgment. As our Supreme Court has explained, in an appeal from entry of a default judgment, remanding the matter "to have the proper amount [of the fine] determined by a new trial granted solely for that purpose . . . [does] not furnish justification for disturbing the default judgment itself." Baraonfski v. Malone, 91 A.2d 908, 910 (Pa. 1952) ("where a default judgment has been entered [pursuant to former Pa.R.C.P. No. 1047] against a defendant for want of an appearance the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages; such assessment is a proceeding ancillary to, but distinctly apart from, the entry of the judgment by default"); see also Reaves v. Knauer, 979 A.2d 404, 412 (Pa. Cmwlth. 2009) (although entry of default judgment was proper, prothonotary was not authorized to assess damages where complaint did not specify a sum certain or include facts from which prothonotary could calculate damages in accordance with Pa.R.C.P. No. 1037(b)(1)).
Here, as discussed above, although the City's praecipe for entry of the default judgment stated a specific dollar amount, its damages were not in fact reduced to a sum certain, nor did the Complaint specify a definite fine. Therefore, the trial court was required to conduct a separate proceeding to determine the proper amount of the judgment. Accordingly, we vacate the trial court's judgment only as to the amount of the fine, and we remand this matter to the trial court for consideration of the appropriate amount of the fine to be imposed.
III. Conclusion
For the reasons discussed above, we affirm the trial court's refusal to open the default judgment. However, we vacate the amount of the judgment and remand to the trial court for further proceedings concerning the appropriate fine amount, consistent with this opinion.
ORDER
AND NOW, this 30th day of August, 2021, the July 31, 2019 order of the Court of Common Pleas of Philadelphia County (trial court) denying the petition of Bryan Neely to open the default judgment entered against him is AFFIRMED. The amount of the judgment is VACATED, and the matter is REMANDED to the trial court for further proceedings to determine an appropriate fine.
Jurisdiction is relinquished.