Opinion
772 WDA 2022 J-A18043-24
12-17-2024
JOHNNA L. VIGNONE, ADMINISTRATRIX OF THE ESTATE OF LOUIS VIGNONE, DECEASED v. PHILLIP L. CLARK, ADMINISTRATOR PENDENTE LITE FOR THE ESATE OF ERIC M. KORTZ, DECEASED Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered June 7, 2022 In the Court of Common Pleas of Allegheny County Civil Division at No(s): No. GD-22-002730
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
BENDER, P.J.E.
Appellant, Phillip L. Clark, administrator pendente lite for the estate of Eric M. Kortz, deceased, appeals from the trial court's June 7, 2022 order, which denied the petition for relief from default judgment that was filed by Mr. Kortz. After careful review, we affirm.
It appears that Mr. Clark's first name is misspelled in the caption. Instead of "Philip," the record reflects it should be spelled "Phillip." We have amended the caption accordingly.
Background
Trial Court Proceedings On March 11, 2022, Appellee, Johnna L. Vignone, administratrix of the estate of Louis Vignone, deceased, filed a complaint against Mr. Kortz, asserting a claim on behalf of Mr. Vignone's estate under the Survival Act, 42 Pa.C.S. § 8302, and a claim on behalf of herself and her three children under the Wrongful Death Act, 42 Pa.C.S. § 8301. She alleged her late husband, Mr. Vignone, worked as a United States Postal Service Mail Carrier, and that they previously resided in a home in the Sheraden section of the City of Pittsburgh for 32 years, where they raised their three children. Complaint, 3/11/22, at ¶¶ 4(a), 8, 9. When the Vignones lived in Sheraden, Mrs. Vignone stated that Mr. Kortz and members of his family resided in a home that was across the back alley from the Vignones' property. Id. at ¶ 10. According to Mrs. Vignone, "[i]n the [s]pring of 2017, [Mr. Kortz] began a pattern of falsely accusing the Vignone family of trespassing and engaging in criminal activity on his property…." Id. at ¶ 11. Mrs. Vignone conveyed that she and her husband decided they "could no longer live with the constant harassment by" Mr. Kortz, so they sold their home and moved 14 miles away to Moon Township in June of 2018. Id. at ¶ 12.
Mrs. Vignone's name is spelled "Johnna" elsewhere in the record, including on the trial court docket, the complaint, and her appellate brief. We therefore amend the caption to conform with this spelling.
Despite the Vignones' moving, Mrs. Vignone said that, in October of 2020, Mr. Kortz "drove his van 11 miles to a location on [Mr. Vignone's] postal delivery route in Collier Township, stopped [Mr. Vignone's] postal vehicle[,] and complained (falsely) that [the Vignones' sons] had recently been in their former residence in Sheraden." Id. at ¶ 13. Later, in January of 2021, Mrs. Vignone said that Mr. Kortz "drove his van 14 miles to [the Vignones'] Moon Township neighborhood and repeatedly drove by their home." Id. at ¶ 15. Further, in May and June of 2021, Mrs. Vignone alleged that Mr. Kortz "drove his van and again stopped [Mr. Vignone] on his route in Collier Township, twice, filming [Mr. Vignone] and threatening jail." Id. at ¶ 16.
According to Mrs. Vignone, Mr. Kortz's "thoughts and actions became more bizarre and delusional, including an incident where he shot off a firearm within his own home, resulting in the police taking and involuntarily committing him to … an inpatient treatment center for the severely mentally ill…." Id. at ¶ 17. She said that Mr. Kortz was treated with medication and other modalities, and his treating mental health professionals advised him that "it was necessary for him to continue to treat appropriately and take medication in order to control his symptoms, which included a desire to hurt or kill members of the Vignone family." Id. at ¶ 18. Nonetheless, Mrs. Vignone claimed that Mr. Kortz "negligently failed and/or refused to participate in appropriate treatment for his symptoms[,]" and his psychiatric symptoms worsened. Id. at ¶ 19; see also id. at ¶ 20.
Mrs. Vignone alleged that, in late September of 2021, Mr. Kortz again drove his van and followed Mr. Vignone while he was delivering mail on his postal route. Id. at ¶ 21. Then, on October 7, 2021, Mrs. Vignone stated that Mr. Kortz "again confronted [Mr. Vignone] while he was on his route … in Collier Township…, [and] shot him multiple times while [Mr. Vignone] was in his postal truck, resulting in [his] death." Id. at ¶ 22. Mrs. Vignone stated that, after Mr. Vignone's death, she learned that Mr. Kortz had the "delusional belief that members of the upstanding and law[-]abiding Vignone family had used cyanide to poison [Mr. Kortz] and his father." Id. at ¶ 23. Mrs. Vignone claimed that her husband's "death was the direct result of [Mr. Kortz's] failure and/or refusal to undergo the recommended treatment, causing his psychiatric symptoms to worsen and [Mr. Kortz] to engage in the shooting without consciously and/or knowingly expecting or intending that result." Id. at ¶ 24. Alternatively, Mrs. Vignone averred that her husband's "death and the resultant damages to his [e]state were caused by [Mr. Kortz's] intentional actions in shooting and killing [Mr. Vignone]." Id. at ¶ 25.
The docket includes a sheriff's return, filed on April 7, 2022, noting that Mr. Kortz was served with Mrs. Vignone's complaint on March 29, 2022. On May 12, 2022, Aaron Sontz, Esquire - an Assistant Federal Public Defender - simultaneously filed two motions in response to the complaint.
First, Attorney Sontz filed a motion for leave to enter a special appearance on Mr. Kortz's behalf in this civil case. He explained that the Federal Public Defender was appointed to represent Mr. Kortz after a criminal complaint was filed against him in the United States District Court for the Western District of Pennsylvania, alleging violations of 18 U.S.C. §§ 1111 and 1114 (Murder of a United States Employee), and 18 U.S.C. §§ 924(c)(1)(A)(i) and (iii) (Possession of a Firearm in Furtherance of a Crime of Violence and Carrying, Use, Discharge of a Firearm in Relation to a Crime of Violence). Motion for Leave to Enter Special Appearance, 5/12/22, at ¶¶ 5-6. Subsequently, Attorney Sontz stated that a two-count indictment was filed against Mr. Kortz: Count 1 of the indictment alleged a violation of 18 U.S.C. §§ 1111 and 1114, and Count 2 alleged a violation of 18 U.S.C. §§ 924(c)(1)(A)(i), (ii), (iii), and 924(j)(1). Id. at ¶ 7. According to Attorney Sontz, Mr. Kortz entered a plea of not guilty at his arraignment, and later learned that the government would not be seeking the death penalty. Id. at ¶¶ 8, 10. Attorney Sontz acknowledged that Mrs. Vignone's complaint included a notice to defend, alerting Mr. Kortz that he "must take action within twenty (20) days after the complaint and notice were served by entering a written appearance, personally or through an attorney, and by filing with the court any defenses or objections to the claims set forth against him." Id. at ¶ 3. He explained that, on April 18, 2022, his co-counsel contacted Mrs. Vignone's attorney, and Mrs. Vignone's counsel agreed to a ten-day extension. Id. at ¶ 4. Attorney Sontz said he was not moving to appear generally to defend Mr. Kortz in the civil matter, but instead sought to "enter a special, limited appearance, for the limited purpose of filing, presenting[,] and arguing a motion to stay the [civil] proceedings while the [federal criminal] matter is pending." Id. at ¶ 12. He said the motion for stay aimed "to preserve the status quo without injuring Mr. Kortz's right to due process of law in this matter or his constitutional privilege against self-incrimination in the federal matter[,]" and "does not seek to assert any substantive or procedural defenses, all of which are nonetheless preserved." Id. at ¶ 11.
Second, Attorney Sontz filed the aforementioned motion for stay of the proceedings pending resolution of Mr. Kortz's federal criminal case. Citing Kessee v. Dougherty, 230 A.3d 1128 (Pa. Super. 2020), he stated that a court must consider certain factors in deciding whether to grant a stay in a civil case pending the resolution of a related criminal case, and concluded that the balance of the factors weighed in favor of staying the civil matter until Mr. Kortz's federal criminal case was resolved. Motion for Stay, 5/12/22, at ¶¶ 14-15; see also id. at ¶¶ 16-25 (evaluating the factors).
As discussed further below, although Attorney Sontz filed these two motions on May 12, 2022, he did not present them in motions court until May 31, 2022. With respect to these motions, under the Allegheny County Civil Division Local Rules, "[a] motion may be presented only after service of the copy of the motion and notice of the date, time, and location of presentation on all other parties." Allegheny Cty. Civ. Fam. R. 208.3(a)(2). Further, "[e]xcept in cases of emergency, or with consent of all other parties, the date of presentation shall be at least ten (10) days after service of a copy of the motion and the notice of the date of presentation." Id. The General Motions Judge hears motions daily, but does not schedule the date or time of presentation; instead, the moving party selects the date and time for presentation. Id. at 208.3(a)(6)(b)(i). See also Mrs. Vignone's Brief at 18-19 (discussing the local rules).
On May 17, 2022, Mrs. Vignone filed a praecipe for default judgment. Claiming that Mr. Kortz failed to file a pleading responding to the complaint within the required time, she requested that judgment be entered in her favor and against Mr. Kortz on liability only, with damages to be assessed at trial. Mrs. Vignone also stated that, pursuant to Pa.R.Civ.P. 237.1(a)(2)(ii), she mailed written notice of her intention to file the praecipe for default judgment to Mr. Kortz at least ten days prior to the date of the filing of her praecipe. See Praecipe for Entry of Judgment by Default, 5/17/22. The prothonotary sent notice of the default judgment on May 18, 2022, pursuant to Pa.R.Civ.P. 236. See Trial Court Docket Entry, 5/17/22; Trial Court Docket at 3 (listing judgment for Mrs. Vignone and against Mr. Kortz); see also Pa.R.Civ.P. 236 (explaining, inter alia, that the prothonotary shall immediately give written notice of the entry of an order or judgment to each party).
Mrs. Vignone filed a response in opposition to Attorney Sontz's motion for leave to enter special appearance on May 18, 2022. Among other things, she contended that the default judgment was appropriately entered where Mr. Kortz did not file any defenses or objections within the ten-day period following Mrs. Vignone's notice that she intended to enter default judgment, and she disputed that Mr. Kortz would suffer undue hardship if a stay were not granted. Response in Opposition to Motion for Leave to Enter Special Appearance, 5/18/22, at ¶¶ 2(b), 4. She averred that immediately after Mr. Vignone's shooting and death, Mr. Kortz "turned himself in[to] local police authorities, confessing he had performed those acts[,]" and she claimed that "the physical and witness evidence is otherwise overwhelming" in the federal criminal case against Mr. Kortz. Id. at ¶ 4(c), (d). Mrs. Vignone, moreover, said that because default judgment was entered on liability, the only issues that remained were the amount of damages to be awarded against Mr. Kortz in favor of Mr. Vignone's estate and survivors, making discovery unnecessary. Id. at ¶ 4(f). As such, she asked that the court deny Attorney Sontz's motion for leave to enter special appearance, which she claimed would also result in the denial of the proposed motion for stay of proceedings. Id. at 5.
Mrs. Vignone also explained that "the only potential asset available to satisfy a money judgment entered against" Mr. Kortz "would be execution upon the home solely owned by [Mr. Kortz] (presuming [he] would not engage in a fraudulent conveyance of the property…), with no one likely being available and willing to maintain and preserve the property while [the judicial and execution] process could be completed[.]" Response in Opposition to Motion for Leave to Enter Special Appearance at ¶ 1(c). Mrs. Vignone stated that Mr. Kortz's counsel advised that Mr. Kortz "failed to keep homeowner's liability insurance in effect on the date of the killing…." Id. at ¶ 1(b).
On May 27, 2022, Attorney Sontz filed a petition for relief from default judgment on Mr. Kortz's behalf. Therein, inter alia, he recounted that Mr. Kortz filed a motion for stay on May 12, 2022, which he stated the petition "incorporates by reference and supplements[.]" Petition for Relief from Judgment by Default ("Petition"), 5/27/22, at ¶ 5. After citing Pa.R.Civ.P. 237.3, he explained that the May 12, 2022 motion for stay "was intended by Mr. Kortz to operate as a stay of the timing requirements in which he must file preliminary objections and/or an answer, and further proceedings[,]" or, in the alternative, "as a stay of the timing requirements in which he may file a petition for relief from judgment by default without attached proposed preliminary objections and/or a proposed answer, and further proceedings." Id. at ¶¶ 9, 10 (unnecessary capitalization omitted). He conveyed that he attached the motion for stay to the petition in lieu of the preliminary objections and/or an answer. Id. at ¶ 10. He continued that, under Pa.R.Civ.P. 1029(e), Mr. Kortz "may file a general denial except that he must specifically deny the following averments: averments relating to the identity of the person by whom a material act was committed…." Id. at ¶ 11. He stated that, "[a]t this time, Mr. Kortz is not prepared to make a specific denial of any averment relating to the identity of the person by whom a material act was committed" as doing so could "potentially violate his privilege against self-incrimination…." Id. at ¶ 12. As a result, he insisted that, "[a]s argued in the [m]otion for [s]tay…, Mr. Kortz is entitled to a stay of the civil case pending the resolution of the federal criminal case." Id. at ¶ 13. To the extent a valid default judgment was entered, he requested that the court open the default judgment and stay the civil proceedings, including the time in which Mr. Kortz must file an answer and/or preliminary objections. Id. at ¶ 14.
As discussed further infra, Rule 237.3 states, in relevant part, that "[a] petition for relief from a judgment … by default entered pursuant to Rule 237.1 shall have attached thereto a copy of the complaint, preliminary objections, and/or answer which the petitioner seeks leave to file. All grounds for relief shall be raised in a single petition." Pa.R.Civ.P. 237.3(a). Further, "[i]f the petition is filed within ten days after the entry of a default judgment on the docket, the court shall open the judgment if one or more of the proposed preliminary objections has merit or the proposed answer states a meritorious defense." Pa.R.Civ.P. 237.3(b)(2). Mr. Kortz also noted that no Pennsylvania Rule of Civil Procedure "controls a motion to stay proceedings pending the resolution of a related federal criminal case[,]" but averred that "as argued in the motion for stay…, the … Superior Court has adopted a 6-part balancing test, and the application of that test justifies a stay in the civil case." Petition at ¶ 8.
In a footnote in the petition, Attorney Sontz disputed that the default judgment was validly entered, arguing that the motion for stay was filed before the praecipe for entry of default judgment and, if Mr. Kortz is entitled to a stay, the stay must include the filing of preliminary objections and/or an answer. Id. at ¶ 14 n.1. He provided no legal authority to support this assertion.
On May 31, 2022, Attorney Sontz presented the motion for leave to enter a special appearance and the motion for stay in motions court. On June 2, 2022, the Honorable Daniel D. Regan entered an order denying Attorney Sontz's motion for leave to enter special appearance. That same day, Judge Regan also entered an order denying without prejudice the motion for stay. The orders issued by Judge Regan did not set forth the reasons for his decisions.
There is no transcript of these proceedings.
On June 2, 2022, Attorney Sontz entered a general appearance on behalf of Mr. Kortz. Thereafter, on June 6, 2022, Mrs. Vignone filed an answer to Mr. Kortz's petition for relief from default judgment. Among other things, Mrs. Vignone contended that Attorney Sontz did not present the motion for leave to enter special appearance or the motion for stay before the motions court until May 31, 2022. Answer to Petition for Relief from Default Judgment, 6/6/22, at ¶ 5(a), (d). She argued that the May 12, 2022 motion for stay did not operate as a stay of the time remaining for Mr. Kortz to respond to Mrs. Vignone's notice of intent to take default judgment, and pointed out that Mr. Kortz did not attach preliminary objections and/or an answer to his petition for relief from default judgment. Id. at ¶¶ 7, 9. She also claimed that Mr. Kortz and his counsel's choice "to not simply assert his privileges against self-incrimination in a timely responsive pleading, and/or their choice and/or error in failing to timely and appropriately raise the issue of a potential stay before default judgment was granted, do not entitle [Mr. Kortz] to a special exemption" from the requirements for opening a default judgment. Id. at ¶ 12 (citing Pa.R.Civ.P. 237.3). See also id. at ¶ 9 ("[Attorney Sontz] filed, but did not present, the motion for stay…. [H]e failed to obtain either an extension of time until the motion could be considered, or present it on an emergency basis….") (unnecessary capitalization omitted). Additionally, she contended that because default judgment was entered, the only issues that remained were the amount of damages to be awarded, thereby eliminating Mr. Kortz's need for a stay pending the resolution of the criminal proceedings. Id. at ¶ 8.
On June 7, 2022, Attorney Sontz presented the petition for relief from default judgment in motions court. There, Attorney Sontz argued, among other things, that:
My client is presently indicted in [f]ederal [c]ourt for the murder of Mr. Vignone. He can't answer the complaint that's been filed in [c]ivil [c]ourt without either pleading the Fifth Amendment which would be tantamount to an admission in [c]ivil [c]ourt or presenting or just denying that Mr. Kortz is responsible for the death of Mr. Vignone.
So, basically, in order for us to file an answer in this matter, we would have to make a decision about how we're going to defend the criminal case[,] and we would also be precluding certain defenses that are available to us in the criminal case.
For example, in the criminal case, we can defend the case by arguing a theory of imperfect self-defense, self-defense, or we can argue a mental infirmity defense such as insanity, or we can simply put the government to its burden of proof and make them prove that Mr. Kortz is actually the person who is responsible for the death of Mr. Vignone[;] we have not conceded that death [sic]. And as I've noted in the [m]otion to [s]tay and [p]etition for [r]elief, Mr. Kortz has entered a plea at the arraignment in this case of not guilty, so he's pled not guilty. It's our position that that plea of not guilty should be sufficient to present to the court a meritorious defense which to prove at a trial would be sufficient to justify the relief that we are requesting which is opening the default judgment.N.T., 6/7/22, at 3-4. In addition, Attorney Sontz advanced that a court can "look past the technical requirements" for a petition to open a judgment because such a petition is "addressed to the court's equitable balance." Id. at 6.
At this proceeding, Attorney Sontz did not specifically discuss the factors a court should consider in deciding whether to grant a stay in a civil case pending the resolution of a related criminal case. See Kessee, supra.
That same day, on June 7, 2022, the Honorable Alan D. Hertzberg entered an order denying Mr. Kortz's petition for relief from default judgment. The order issued by Judge Hertzberg did not provide the rationale for his decision.
On June 25, 2022, Attorney Sontz filed a motion for reconsideration and, on July 5, 2022, he filed a notice of appeal on Mr. Kortz's behalf. Confusingly, the notice of appeal stated that the appeal was taken from the order entered on June 6, 2022. However, no order was entered - or dated - June 6, 2022.
Judge Hertzberg did not rule on the motion for reconsideration. Judge Hertzberg indicated that Mr. Kortz "failed to serve the motion for reconsideration on me and I was unaware of it before the 30[-]day deadline to modify or rescind the order had expired." Trial Court Opinion ("TCO"), 9/6/22, at 5 n.2 (citing 42 Pa.C.S. § 5505).
Judge Hertzberg directed Mr. Kortz to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and he timely complied. Judge Hertzberg issued a Rule 1925(a) opinion on September 6, 2022.
Appellate Proceedings
On December 1, 2022, Mr. Kortz's counsel at the time - Assistant Federal Public Defender Jake D. Morrison, Esquire - filed an appellant's brief.
Therein, he raised the following questions for our review:
1. Did the trial court abuse its discretion when it denied Mr. Kortz's motion to stay proceedings, after misapplying the multi-factor balancing test adopted by this Court in Kessee by requiring Mr. Kortz to show a strong likelihood that he would win his criminal case; misinterpreting other stay factors; and relying on inaccurate factual inferences not supported by any record evidence?
2. Did the trial court abuse its discretion when it denied Mr. Kortz's petition to open the default judgment solely because he did not attach a draft answer to his petition, where Mr. Kortz instead attached a copy of his stay motion, and his petition otherwise demonstrated that the balance of equities favored relief; that he was acting in good faith; and that he was entitled to stay upon reopening?
Mr. Kortz's Brief at 6. On January 3, 2023, Mrs. Vignone filed an appellee's brief.
While this appeal was pending, Mr. Kortz passed away. On January 17, 2023, Attorney Morrison filed a notice of Mr. Kortz's death. That same day, Attorney Morrison filed an application to withdraw as Mr. Kortz's counsel. As a result of Mr. Kortz's death, Attorney Morrison explained that all pending criminal charges against Mr. Kortz were dismissed. Application to Dismiss, 1/17/23, at ¶ 4. He opined that Mr. Kortz's request for a stay pending the outcome of the criminal proceedings was therefore moot, but that the issue of whether the trial court should have opened the default judgment to allow for a stay would not be mooted by Mr. Kortz's death if a proper party exists for substitution. Id. at ¶ 8.
The record indicates that Mr. Kortz died of cancer on January 2, 2023. His criminal case had not yet been resolved at the time of his death.
Thereafter, on January 24, 2023, Mrs. Vignone filed an application to dismiss Mr. Kortz's appeal. She claimed, inter alia, that "the sole purpose of [Mr.] Kortz'[s] petition to open the default judgment was to obtain a stay during the pendency of the criminal proceedings[,]" and that because Mr. Kortz's motion for stay is moot, "his petition seeking opening of the default judgment for the sole purpose of presenting and asserting the stay motion is likewise moot." Application to Dismiss, 1/24/23, at ¶¶ 2, 3 (emphasis in original). She also argued that none of the exceptions to the mootness doctrine apply. Id. at ¶¶ 7-10.
On February 6, 2023, Attorney Morrison filed an answer to Mrs. Vignone's application to dismiss. Therein, among other things, he disputed Mrs. Vignone's claim that the appeal was moot, arguing that "the issue of whether the trial court erroneously refused to open the default judgment is not moot[,]" and that because "the effect of dismissing this appeal would be to leave the default judgment in place on remand, the issue has direct relevance to Mr. Kortz's hypothetical estate (as well as to [Mrs.] Vignone's purported claims against it)." Answer to Motion to Dismiss Appeal for Mootness, 2/6/23, at ¶ 14.
On March 17, 2023, this Court denied Attorney Morrison's application to withdraw without prejudice to his right to raise the issue before the trial court. We also denied without prejudice Mrs. Vignone's application to dismiss. We stayed all proceedings in this Court and remanded for any party to file a suggestion of death with the trial court, and for the trial court to make determinations as to the veracity of Mr. Kortz's death, whether any estate needs to be raised and letters of administration granted, and whether any successors in interest exist. See Order, 3/17/23. The trial court thereafter transmitted a supplemental record, which indicated, among other things, that Mr. Clark is serving as the administrator pendente lite for Mr. Kortz's estate.Mr. Clark stated that he "has determined that the expenditure of [e]state assets on this matter is not justified and relies upon the record created by" Mr. Kortz's former counsel, including the February 6, 2023 answer to Mrs. Vignone's application to dismiss. See Response to Renewed Motion to Dismiss for Mootness, 11/27/23, at ¶ 1.
Mr. Clark is a licensed attorney in Pennsylvania.
Analysis
Notice of Appeal
We first address the ambiguity around which order Mr. Kortz appealed. As mentioned supra, on July 5, 2022, Mr. Kortz filed a notice of appeal, claiming that he was appealing from the order entered on June 6, 2022. The record shows that no order was entered on - or dated - June 6, 2022. Adding to this confusion, a notice of appeal filed on July 5, 2022 would have been timely filed for both Judge Regan's June 2, 2022 orders and Judge Hertzberg's June 7, 2022 order. Moreover, Mr. Kortz served both Judge Hertzberg and Judge Regan with his notice of appeal; included issues in his Rule 1925(b) statement relating to both Judge Regan's order denying without prejudice his May 12, 2022 motion for stay and Judge Hertzberg's order denying his petition for relief from default judgment; argued why this Court has jurisdiction over orders denying petitions to open a default judgment and orders denying motions for stay in his appellate brief; and advanced arguments to this Court seemingly related to both orders.
The 30-day appeal period for Judge Regan's June 2, 2022 orders would have ended on Saturday, July 2, 2022, and the following Monday, July 4, 2022, was a legal holiday. See Pa.R.A.P. 903 (stating the general rule that a notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken); see also 1 Pa.C.S. § 1908 ("Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation."); Pa.R.A.P. 107 (effective July 1, 1976-Dec. 31, 2023) ("Chapter 19 of Title 1 of the Pennsylvania Consolidated Statutes (rules of construction) so far as not inconsistent with any express provision of these rules, shall be applicable to the interpretation of these rules and all amendments hereto to the same extent as if these rules were enactments of the General Assembly.").
Problematically, if Mr. Kortz intended to appeal both Judge Regan's June 2, 2022 order denying without prejudice the motion for stay and Judge Hertzberg's June 7, 2022 order denying his petition for relief from default judgment, he had to file separate notices of appeal from each order, as neither order is a final order given that the issue of damages remains outstanding. See Pa.R.A.P. 341(b) (defining final order as, inter alia, an order that disposes of all claims and of all parties); Rohm and Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010) ("[A] notice of appeal filed from the entry of the final order in an action draws into question the propriety of any prior non-final orders. Once an appeal is filed from a final order, all prior interlocutory orders become reviewable.") (cleaned up); see also Pa.R.A.P. 311(a)(1) (stating that an interlocutory appeal as of right may be taken from an order refusing to open a judgment); Pa.R.A.P. 313(a) ("An appeal may be taken as of right from a collateral order of a trial court or other government unit."); Kessee, 230 A.3d at 1131-33 (determining that an order denying a request to stay civil proceedings pending resolution of a related criminal case met the collateral order doctrine). He failed to do so, and we therefore must determine which order was appealed.
For the following reasons, we construe the notice of appeal as being from Judge Hertzberg's June 7, 2022 order. First, in the brief filed by Mr. Kortz, he identified the order in question as Judge Hertzberg's June 7, 2022 order denying his petition for relief from default judgment. See Mr. Kortz's Brief at 3; see also Pa.R.A.P. 2115(a) ("The text of the order or other determination from which an appeal has been taken or which is otherwise sought to be reviewed shall be set forth verbatim immediately following the statement of jurisdiction."). Second, Judge Hertzberg authored a Rule 1925(a) opinion, pointing out that Mr. Kortz's concise statement included a claim relating to Judge Regan's order denying without prejudice his motion for stay, but noting that his "notice of appeal is from only one order dated June 6,2022, which I believe is actually my order dated June 7, 2022…." TCO at 2 n.1. In response, Mr. Kortz did not request to file an amended notice of appeal, clarifying that he intended to appeal from Judge Regan's June 2, 2022 order. Third, Mr. Kortz attached a request for transcript form to the notice of appeal, requesting that the June 7, 2022 proceedings - where he presented his petition for relief from default judgment to Judge Hertzberg - be transcribed. Finally, in the civil docketing statement filed with this Court, Mr. Kortz identified the "[d]ate of judgment or order appealed from" as June 7, 2022. Civil Docketing Statement, 7/20/22, at 1 (unnumbered). Based on the foregoing, we construe Mr. Kortz's appeal as relating to Judge Herzberg's June 7,2022 order, and limit our review accordingly.
Mootness
We next consider whether Mr. Kortz's death has mooted this appeal. We conclude his appeal from Judge Hertzberg's June 7, 2022 order is not moot. "[A]n issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect." Commonwealth v. Nava, 966 A.2d 630, 633 (Pa. Super. 2009) (citation omitted). If this Court concludes that Judge Hertzberg should have opened the default judgment and stayed the proceedings, this Court could, among other things, reverse his order, allowing the parties to litigate the issue of liability. Thus, because we can enter an order that has legal force and effect, this appeal is not moot.
Petition for Relief from Default Judgment
As set forth above, our review is limited to Judge Hertzberg's June 7, 2022 order denying Mr. Kortz's petition for relief from default judgment. With respect to Mr. Kortz's request to open the default judgment and enter a stay, Judge Hertzberg stated that - in contravention of our Rules of Civil Procedure - Mr. Kortz "failed to attach preliminary objections or an answer to the petition and instead attempted to shoehorn a [motion] to stay as a satisfactory pleading to be attached to the petition. [Mr. Kortz] failed to present any attempt at a meritorious defense." Id. at 5.
We recognize that Judge Hertzberg's Rule 1925(a) opinion also addressed whether a stay was warranted. However, with respect to whether a stay should have been granted, Mr. Kortz's Rule 1925(b) statement only challenged Judge Regan's decision to deny a stay. See Pa.R.A.P. 1925(b) Statement, 7/26/22, at ¶ 1 ("The trial court erred when it denied without prejudice the motion for stay…, which was filed on May 12, 2022. The court denied the motion for stay … without applying the balancing test established in Adelphia Communications Sec. Litig., No. 02-1781, 2003 WL 22358819 at *2 (E.D. Pa. May 13, 2003), as adopted by the Pennsylvania Superior Court in Kessee…. Under that test, a stay should have been granted. Because the court did not explain the basis for its decision, Mr. Kortz is unable at this time to further explain why the decision was in error.") (emphasis added; unnecessary capitalization omitted); cf. id. at 2 ("The trial court erred when [it] denied the petition for relief from judgment by default, which was filed on May 27, 2022. The motion for stay … was filed before the default judgment was docketed, and the default judgment should not have been entered while the motion for stay … was pending. By filing the motion for stay…, Mr. Kortz clearly indicated that he intended to defend the civil suit, at least to the extent that he requested a stay until the resolution of the criminal case…. Even if the default judgment had been appropriately entered, Mr. Kortz promptly filed a petition for relief…. The petition … substantively complied with [Pa.R.Civ.P.] 237.3…. Because the court did not explain the basis for its decision, Mr. Kortz is unable at this time to further explain why the decision was in error. He notes that a motion for reconsideration of the denial of the petition for relief from judgment, which asked the court to reopen the judgment and enter a stay, was filed on June 25, 2022. That motion remains pending.") (unnecessary capitalization omitted); see also Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."); Trial Court Order, 7/5/22, at 1 (single page) (cautioning that "any issue not properly included in the statement timely [filed] and served … shall be deemed waived"). Again, Mr. Kortz did not file a separate notice of appeal from Judge Regan's June 2, 2022 order denying without prejudice the motion for stay, and we do not consider that decision further.
Upon review, Mr. Kortz fails to convince us that Judge Hertzberg abused his discretion in determining that the default judgment should not be opened. This Court has explained that:
We point out that Mr. Kortz did not file a petition to strike the default judgment, challenging its validity. See Roy by and through Roy v. Rue, 273 A.3d 1174, 1181 (Pa. Super. 2022) ("A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record. [A] petition to strike is not a chance to review the merits of the allegations of a complaint. Rather, a petition to strike is aimed at defects that affect the validity of the judgment and that entitle the petitioner, as a matter of law, to relief.") (citation omitted).
It is well settled that a petition to open a default judgment is an appeal to the equitable powers of the court, and absent an error of law or a clear, manifest abuse of discretion, it will not be disturbed on appeal. An abuse of discretion occurs when a trial court, in reaching its conclusions, overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will.US Bank N.A. v. Mallory, 982 A.2d 986, 994 (Pa. Super. 2009) (citation omitted).
"Generally speaking, a 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." Id. at 994-95 (citations and footnote omitted). With respect to opening default judgments, Pennsylvania Rule of Civil Procedure 237.3 also sets forth, in relevant part, the following:
(a) A petition for relief from a judgment of non pros or by default entered pursuant to Rule 237.1 shall have attached thereto a copy of the complaint, preliminary objections, and/or answer which the petitioner seeks leave to file. All grounds for relief shall be raised in a single petition.
***
[(b)](2) If the petition is filed within ten days after the entry of a default judgment on the docket, the court shall open the judgment if one or more of the proposed preliminary objections has merit or the proposed answer states a meritorious defense.Pa.R.Civ.P. 237.3. "Rule 237.3 does not change the law of opening judgments." Note to Pa.R.Civ.P. 237.3. Instead, it "supplies two of the three requisites for opening such judgments by presupposing that a petition filed as provided by the rule is timely and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in the entry of the judgment." Id. Our Court has stated that, "if a petition to open a default judgment fails to fulfill any one prong of the three-prong test, then the petition must be denied." Roy, 273 A.3d at 1188-89 (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." Id. at 1189 (citation omitted). See also Dumoff v. Spencer, 754 A.2d 1280, 1283 (Pa. Super. 2000) (rejecting the appellant's argument that the late filing of the petition to open default judgment did not prejudice the appellee, opining that "prejudice is not a separate element examined by the courts when [the a]ppellant did not establish all three requirements of the test to open the default judgment") (citation omitted).
Under both the traditional three-prong test and Rule 237.3, the petitioner must set forth a meritorious defense by way of either an answer or preliminary objections. This is the only prong at issue. Although Mr. Kortz did not file either an answer or preliminary objections, Mr. Kortz argued that Judge Hertzberg should have "balanced the equities and opened the default judgment." Mr. Kortz's Brief at 37. He advanced that he and his counsel "did not act dilatorily or in bad faith, and his default was not the result of any attempt to avoid these proceedings or impede [Mrs. Vignone's] ability to ultimately establish a claim." Id. at 41. Citing various cases, he also claimed that this Court has "cautioned that it is inappropriate for trial courts to deny relief from a default judgment based only on litigants' noncompliance with the 'attached pleading' requirement of Rule 237.3." Id. at 39-40. Moreover, to the extent possible without waiving his right against self-incrimination, Mr. Kortz stated that he raised a meritorious defense. Id. at 42. Specifically, he said that the motion for stay that was attached to his petition set forth that he had entered a plea of not guilty at his federal arraignment. Id. at 43.
Mr. Kortz cited case law stating that courts have frequently opened default judgments where the petition is promptly filed and a reasonable excuse for the delay is presented. See Mr. Kortz's Brief at 39 (citing Moyer v. Americana Mobile Homes, Inc., 368 A.2d 802, 805 (Pa. Super. 1976)); see also Moyer, 368 A.2d at 804 ("Before the discretion of the court will be exercised to open a default judgment in a trespass action the petition to open must be filed promptly and the delay must be reasonably explained or excused. If the equities are otherwise clear, a meritorious defense need not be demonstrated.") (citation and footnote omitted). However, our Court subsequently determined that every petition to open a default judgment must also demonstrate a valid defense. See Wolfskill v. Egan, 504 A.2d 326 (Pa. Super. 1986).
Mrs. Vignone acknowledges that Mr. Kortz filed his petition to open within ten days of the entry of default judgment, and that Rule 237.3 "presupposes that any such petition filed within [ten] days of entry of default judgment is presumed to be timely filed and with reasonable explanation or legitimate excuse for the inactivity or delay resulting in entry of the judgment." Mrs. Vignone's Brief at 21; see also id. at 21 n.6; accord TCO at 4-5 (stating that Mr. Kortz failed to present a meritorious defense).
In support, along with some published cases, Mr. Kortz cited multiple unpublished, non-precedential memorandum decisions of this Court filed before May 1, 2019. We do not consider these cases. See Pa.R.A.P. 126(b) (stating that only unpublished non-precedential memorandum decisions of the Superior Court filed after May 1, 2019, may be cited for their persuasive value).
Assuming arguendo that we can overlook that Mr. Kortz did not attach either an answer or preliminary objections to his petition, we still do not conclude that he has raised a meritorious defense. To the extent Mr. Kortz maintained that his attached motion for stay stated that he had pled not guilty in the federal proceedings, thereby raising a meritorious defense, we disagree. This Court has explained:
This argument was not raised in the petition, but was made by Attorney Sontz at the June 7, 2022 proceeding.
The 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.
Merely asserting in a petition to open default judgment that one has a meritorious defense is insufficient. The moving party must set forth its meritorious defense. If any one of the alleged defenses would provide relief from liability, the moving party will have pled a meritorious defense and will have satisfied the third requirement to open the default judgment.Seeger v. First Union Nat. Bank, 836 A.2d 163, 166 (Pa. Super. 2003) (cleaned up; emphasis added). See also Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23, 28 (Pa. Super. 2011) (determining that the appellants did not set forth a meritorious defense where they alleged in their petition that they have "a strong defense for this matter and it is highly likely that plaintiff will not prevail on his case in chief"); Castings Condominium Ass'n v. Klein, 663 A.2d 220, 224 (Pa. Super. 1995) (concluding that the defendant did not establish a meritorious defense where the plaintiff alleged numerous factual details, and the defendant did not refute any of the allegations with particularity but instead summarily stated that she denied any wrongdoing). Mr. Kortz's bare assertion that he pled not guilty in federal court is not precise, specific, or clear. Instead, it is akin to vaguely claiming that one has a meritorious defense or summarily denying any wrongdoing.
We recognize that - when Mr. Kortz filed his petition - he claimed that he was unable to answer the complaint with any more specificity, given his pending criminal matter. See Petition at ¶¶ 11-12; N.T. at 3-4, supra. However, by the time Judge Hertzberg ruled on the petition for relief from default judgment, Judge Regan had already denied without prejudice the motion for stay, which Mr. Kortz had attached to and incorporated in his petition. As discussed supra, Mr. Kortz did not appeal Judge Regan's decision, nor did he persuade Judge Regan to reconsider his order and enter a stay after Attorney Sontz had entered a general appearance. Further, Mr. Kortz's petition for relief from default judgment requested that Judge Hertzberg open the judgment and then enter a stay. Petition at ¶ 14 ("Mr. Kortz respectfully seeks to reopen the judgment by default and stay the civil proceedings including the time in which he must file an answer and/or preliminary objections."). This request for relief is reiterated in his appellate brief. Mr. Kortz's Brief at 45 ("Mr. Kortz respectfully requests that the [c]ourt reverse the trial court and remand, with instructions to open the default judgment and grant Mr. Kortz's motion to stay proceedings pending the outcome of his federal criminal case."). Yet, the law supports that, to open the default judgment, Mr. Kortz must first present a meritorious defense.
Again, the record is not clear as to why Judge Regan denied without prejudice the motion for stay. Mr. Kortz suggested that it was because Judge Regan denied Attorney Sontz's motion for leave to enter special appearance. Mr. Kortz's Brief at 35-36. See also Response in Opposition to Motion for Leave to Enter Special Appearance at 5 (Mrs. Vignone's asking that the "motion for leave to enter special appearance… be denied, which, sub silentio, would result in the denial of the proposed motion for stay of proceedings") (unnecessary capitalization omitted).
We acknowledge that Attorney Sontz's motion for reconsideration, filed on June 25, 2022, sought reconsideration of both Judge Regan and Judge Hertzberg's orders. However, Judge Hertzberg said Attorney Sontz failed to serve him with this motion, and that he was unaware of it until after the appeal was taken. See TCO at 5 n.2. This raises the question of whether the motion was properly served on Judge Regan. Mr. Kortz did not address this service issue in his brief. In any event, though, the docket shows that Judge Regan did not rule on the motion for reconsideration.
Accord N.T. at 17 (Attorney Sontz's arguing before Judge Hertzberg, "And in the motion to stay, I think the balance of the factors clearly falls in favor of the stay. So, if the court does reach the merits of the motion to stay, I think clearly Mr. Kortz is entitled to it, even though it would be interfering with [Mrs. Vignone's] ability to proceed with the civil matter.") (emphasis added; unnecessary capitalization omitted).
We repeat that this Court has stated that "[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." See Roy, 273 A.3d at 1189 (citation omitted); Seeger, 836 A.2d at 167 (same); see also ABG Promotions v. Parkway Pub., Inc., 834 A.2d 613, 618 (Pa. Super. 2003) ("In addition to evaluating whether a party has met the burden of the tripartite test, a court is also to balance the equities when considering whether to grant a [p]etition to [o]pen a default judgment. This Court has recognized that where some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a watertight compartment. A court should, instead, consider each part in light of all the circumstances and equities of the case.") (cleaned up; emphasis added). Because Mr. Kortz failed to show a meritorious defense, we cannot conclude that Judge Herzberg abused his discretion in refusing to open the default judgment and enter a stay. Accordingly, we affirm his June 7, 2022 order.
Order affirmed.
Judgment Entered.