Nancy Maggio v. Veritas Global Protection Services, Inc.

Nancy Maggio v. Veritas Global Protection Services, Inc.

 

Civil Action-Law-Breach of Contract-Vehicle Warranty-Default Judgment-Petition to Open Judgment-Relocation of Defendant without Notice to Plaintiff-Service of Process-Jurisdictional Issue-Prompt Filing-Excuse for Timely Response

 

Plaintiff purchased a vehicle and a warranty contract from Defendant in 2020.  After Plaintiff experienced problems with her vehicle, she filed a claim under the warranty with Defendant.  Defendant denied the claim.  Plaintiff subsequently filed a Complaint for Breach of Contract and related claims.  The Complaint was served upon Defendant at the address listed in the original warranty contract.  Plaintiff filed a Praecipe for Default Judgment after Defendant failed to respond to the Complaint, which was served upon Defendant at the same address listed in the original warranty contract.  Defendant filed a Petition to Open Judgment on the basis that Plaintiff did not execute service of her Complaint.

 

*.  The decision to grant or to deny a petition to open default judgment is within the sound discretion of the trial court.

 

*.  To be successful, a petition to open a judgment must meet all of the following criteria: (1) the petition to open judgment must be filed promptly; (2) the failure to appear or to file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense.

 

*.  In determining the promptness of the filing of a petition to open judgment, the period of delay normally has been less than one (1) month.

 

*.  The issue of improper service must be addressed before considering legal criteria regarding a petition to open a judgment.

 

*.  If valid service has not been effectuated, the judgment should be opened, as the court has no jurisdiction over the defendant and is without power to enter a judgment against that defendant.

 

*.  Defendant was not denied proper service of the Complaint where the Complaint was served upon Defendant by certified mail at the address listed in the warranty contract and no other address was communicated to Plaintiff for service of process.

 

*.  In considering the criteria to permit opening of a judgment, Defendant’s Petition to Open Judgment was not filed promptly where over two (2) months elapsed from the time of service of the Praecipe for Default Judgment against Defendant.

 

*.  Defendant’s excuse that it moved its offices in 2021 without providing Plaintiff its address fails to constitute a legitimate explanation for the delay that caused the entry of the default judgment.

 

L.C.C.C.P. No. 2021-00796, Opinion by Bradford H. Charles, Judge, January 23, 2023.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

                                                                                      

NANCY MAGGIO,                                      :

Plaintiff                                                                      :

                                                                                    :

                                                                                    :

1. :           2021-00796

                                                                                    :

VERITAS GLOBAL PROTECTION                    :

SERVICES, INC.,                                        :

Defendant                                                                  :          

                                                                                    :

                                                                                    :

ORDER OF COURT

 

AND NOW, this 23^rd day of January, 2023, the Defendant’s Motion to Open Judgment is hereby DENIED.

 

 

BY THE COURT:

 

__________________________J.

BRADFORD H. CHARLES

BHC/oeh

cc:        Court Administration (order only)

Corey Lamoureux, Esq.// 1601 Cornwall Road Lebanon, PA 17042

Robert Walter, Esq.//   411 7^th Ave. Ste. 1400 Pittsburgh, PA 15219

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

                                                                                      

NANCY MAGGIO,                                      :

Plaintiff                                                                      :

                                                                                    :

                                                                                    :

1. :           2021-00796

                                                                                    :

VERITAS GLOBAL PROTECTION                    :

SERVICES, INC.,                                        :

Defendant                                                                  :          

                                                                                    :

                                                                                    :

APPEARANCES

 

 

COREY LAMOUREUX, ESQ.                                           For Plaintiff

 

ROBERT WALTER, ESQ.                                     For Defendant

 

 

 

 

OPINION BY CHARLES, J.,  January 23, 2023

            When a petition to open judgment is delayed and the petitioner does not provide a reasonable explanation as to why he/she did not promptly file the petition, a Trial Court is within its discretion to deny the petition. In the case before us, the Defendant, a corporation, gave an address in its service contracts which listed its principal place of business. When it moved from Kansas to Arizona, it did not notify its customers that it moved. In today’s Opinion, we hold that moving halfway across the country without notifying customers of an address change is not a reasonable excuse for a corporation to avoid default judgment.

1. FACTS

Nancy Maggio (hereafter, “PLAINTIFF”), a resident of Lebanon County, PA purchased a vehicle in 2020. In addition to the purchase of a vehicle, PLAINTIFF also purchased a warranty contract from Veritas Global Protection Services (hereafter, “DEFENDANT”). Shortly after purchasing the vehicle, PLAINTIFF experienced a multitude of issues, causing the vehicle to become inoperable. PLAINTIFF filed a warranty claim with DEFENDANT, who denied her claim.

PLAINTIFF filed a Complaint on November 9, 2021, alleging Breach of Contract, Unjust Enrichment, and a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. PLAINTIFF served the Complaint to the address that was provided in multiple locations throughout the original warranty contract, 5350 College Boulevard Overland Park, KS 66211. Specifically, the warranty contract states:

1. Administrator means Veritas Global Protection Services, INC, a company located at 5350 College Blvd, Overland Park, KS 66211 with phone number (888) 572-4310.
2. We, Us, Our means the entity who is obligated to perform under the Contract (the “obligor”). The obligor of this Contract is Central Administrative Service Corporation, INC, a Company located at 5350 College Blvd, Overland Park, KS 66211 with phone number (888) 572-4310.

See Service Contract at Section I, ¶¶ 1, 9. PLAINTIFF issued a Ten-Day Notice to DEFENDANT on December 8, 2021. DEFENDANT failed to file a response to PLAINTIFF’s Complaint, and on December 23, 2021, PLAINTIFF filed a Praecipe for Default Judgment. The Praecipe for Default Judgment was served on DEFENDANT at the same Overland Park, KS address on January 3, 2022.

On March 7, 2022, DEFENDANT filed a Petition to Open Judgment[1], arguing that PLAINTIFF did not properly effectuate service. We held Oral Argument on October 7, 2022. During Oral Argument, DEFENDANT represented that its address had changed in 2021, so it never received a copy of the Complaint. Additionally, DEFENDANT conceded that it did not inform PLAINTIFF of its change of address.

At the conclusion of Oral Argument, we discussed with the parties our apprehension concerning this case. We indicated that opening judgment in this case may be prejudicial to PLAINTIFF due to the arbitration clause defense that was raised in DEFENDANT’s Petition. Additionally, we indicated our general belief that a Defendant should be given an opportunity to defend him/herself. We suggested to the parties that we would delay an Opinion in this case to give them an opportunity to negotiate a possible resolution that would include a caveat DEFENDANT would not pursue the arbitration clause defense. No stipulation has been entered by the parties to date. Accordingly, we author this Opinion in support of our decision to deny DEFENDANT’s Petition to Open Judgment.

 

1. DISCUSSION

A petition to open a judgment is an appeal to the equitable powers of the court. First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 485 A.2d 1086 (Pa. 1984). The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court. Smith v. Morrell Beer Distributors, Inc., 29 A.3d 23 (Pa. Super. 2011). Ordinarily, if a petition to open a judgment is to be successful, it must meet the following test: (1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense. McCoy v. Public Acceptance Corp., 305 A.2d 698 (Pa. 1973); Liquid Carbonic Corp. v. Cooper & Reese, Inc., 416 A.2d 549 (Pa. Super. 1979).

Initially, we are instructed by our Appellate Courts to address the issue of improper service before considering any of the three factors set forth above. See Digital Communications Warehouse, Inc. v. Allen Investments, LLC, 223 A.3d 278, 288 (Pa. Super. 2019)(“However, where the party seeking to open a judgment asserts that service was improper, a court must address this issue before considering any other factors.”). As our Supreme Court has explained:

If valid service has not been made, then the judgment should be opened because the court has no jurisdiction over the defendant and is without power to enter a judgment against him or her. In making this determination, a court can consider facts not before it at the time the judgment was entered.

Cintas Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 919 (Pa. 1997) (citations omitted).

In the case of Roy by and through Roy v. Rue, 273 A.3d 1174 (Pa. Super. 2022) appeal denied, No. 121 EAL 2022 (Pa. 2022), our Superior Court affirmed a Trial Court’s decision to deny a petition to open judgment based upon alleged improper service because there existed no reason to suspect that the appellant’s address had changed between the alleged incident and the entry of default judgment. In Roy, a “bar fight” broke out which caused Mr. Roy to enter a vegetative state and eventually die. Ms. Roy filed multiple claims of negligence and battery against the bar and Mr. Rue. Pertinently, the complaint was delivered to Mr. Rue’s mother’s home. When Mr. Rue did not reply, a praecipe for default judgment was filed, and the trial court entered default judgment in favor of Ms. Roy. Mr. Rue filed a petition to open default judgment thereafter. He argued that he was not residing at the address in which the complaint was addressed because he was in prison and/or at another address during the relevant times of the action.

The Superior Court found Mr. Rue’s argument unpersuasive and affirmed the Trial Court’s decision to deny his petition. Specifically, the Court noted:

In considering the service issue, the trial court concluded “the complaint was served to [Mr. Rue’s]…address on Teesdale Street, where service was accepted by [Mr. Rue’s] mother.” Thus, the trial court rejected Mr. Rue’s contention that he was not properly served with the complaint; but rather, the trial court’s holding suggested the Teesdale Street residence was Mr. Rue’s residence and his mother accepted service for him at the residence.

Moreover, we conclude there is ample evidence in support of the trial court’s conclusion. For example, in her answer in opposition to Mr. Rue’s petition to open, Ms. Roy attached as an exhibit the public records from the LexisNexis database, which revealed that Mr. Rue’s last known address, as of May of 2010, was the Teesdale Street residence. Further, to demonstrate the address pertained to Mr. Rue (and not just to his father), Ms. Roy’s exhibit provided information regarding Mr. Rue’s date of birth and social security number.

Further, we note that, in his petition to open, Mr. Rue failed to establish an alternate address where he was living when Ms. Roy served the complaint in March of 2011. He asserted he “believes” he was living at an address on Craig Street or at the St. Ive’s Apartment Complex. However, aside from expressing uncertainty as to where he may have been living in March of 2011, Mr. Rue provided no utility bills, lease, deed, or other documents to shed light on the matter. He also provided no affidavit from a roommate or landlord. Although Mr. Rue presented the trial court with affidavits from his mother, father, and sister, all of whom summarily asserted Mr. Rue did not live at the Teesdale Street residence, the affidavits shed no light on an alternate address where Mr. Rue allegedly lived in March of 2011.

Based on the aforementioned, the trial court properly considered the evidence presented by the parties and did not abuse its discretion in finding Ms. Roy properly served the complaint on Mr. Rue’s mother, “an adult family member with whom [Mr. Rue] resides[.]” Accordingly, Mr. Rue is not entitled to relief on this claim.

Roy, supra at 1188 (citations omitted).

Turning to the preliminary issue before us, we are unconvinced that DEFENDANT was denied proper service of the Complaint. The initial contract between PLAINTIFF and DEFENDANT lists the Overland Park, KS address in multiple locations, including throughout the definition section of the parties’ original contract. There is no other address which DEFENDANT lists as its address in this contract. In light of this, we must conclude that the Overland Park, KS location was Defendant’s principal place of business.

PLAINTIFF served DEFENDANT by certified mail. This is an approved method of service for an out-of-state defendant. See Pa.R.C.P. 403. We therefore find that service was made at the correct address and in the correct manner.

Turning now to the three-prong test we are instructed to employ pursuant to McCoy, we are reminded 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. Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175-76 (Pa. Super. 2009).

As to the first prong, DEFENDANT’s Petition has not been promptly filed. In cases where the appellate courts have found a “prompt” and timely filing of the petition to open a default judgment, the period of delay has normally been less than one (1) month. See Duckson v. Wee Wheelers, Inc., 620 A.2d 1206 (Pa. Super. 1993) (one day is timely); Alba v. Urology Associates of Kingston, 598 A.2d 57 (Pa. Super. 1991) (fourteen days is timely); Fink v. General Accident Ins. Co., 594 A.2d 345 (Pa. Super. 1991) (period of five days is timely). In the case sub judice, DEFENDANT filed his Petition on March 7, 2022. This is over two (2) months after DEFENDANT was served with the Praecipe for Default Judgment. Because more than twice the amount of time has elapsed than what our Appellate Courts suggest is “timely”, we find that DEFENDANT’s Petition has failed to satisfy the first prong.

With respect to the second requirement of a justifiable excuse, courts look to the specific circumstances of the case to determine whether the petitioner offered a legitimate explanation for the delay that caused entry of a default judgment. Myers, supra at 176. “While some mistakes will be excused, … mere carelessness will not be….” Bahr v. Pasky, 439 A.2d 174, 177 (Pa. Super. 1981).

DEFENDANT argues that it moved in 2021 and therefore never received PLAINTIFF’s Complaint. We find this unpersuasive. DEFENDANT is a corporation that is made up of a President, Chief Executive Officer, and General Counsel. See https://veritasprotection.com/about-us/our-team/. DEFENDANT boasts, “… we have grown from our humble beginnings into a company that employs over 50 people and generates over $100,000,000 per year in annual revenue.” https://veritasprotection.com/about-us/our-story/. Simply stated, DEFENDANT holds itself out to the public as a sophisticated corporation—this is not a case of a lay or unrepresented entity. A sophisticated corporation such as this cannot simply move halfway across the country without notifying its customers and then argue that it never received service because it moved. It is unreasonable for an entity such as this, who employs a licensed attorney, to fail to notify its customers when it moves from Kansas to Arizona.[2] Accordingly, DEFENDANT cannot prevail on the second prong.

Finally, we conclude that DEFENDANT set forth a meritorious defense. The requirement of a meritorious defense is only that a defense must be pleaded that if proved at trial would justify relief. Alexander v. Jesray Construction Company, 346 A.2d 566 (Pa. Super. 1975). In this case, DEFENDANT raises five (5) defenses in its Preliminary Objections, namely that the original contract has an arbitration agreement which would preclude PLAINTIFF from filing a civil cause of action. If proven true, DEFENDANT would be entitled to relief by raising this defense. Accordingly, DEFENDANT satisfies the third prong.

DEFENDANT fails two of the three prongs we are instructed to employ when considering a motion to open judgment. Because the failure of just one prong precludes a petitioner from relief, see Myers, supra, DEFENDANT is not entitled to relief.

III.       CONCLUSION

A Trial Court is instructed to grant a petition to open judgment when the petition is promptly filed; the failure to file an answer is excused; and when a petitioner provides a meritorious defense to the complaint. When a petitioner fails just one of these prongs, a Trial Court is within its discretion to deny the petition.

In the instant case, DEFENDANT argues that it can avoid judgment because it changed its professional address just before PLAINTIFF filed her Complaint. We find this excuse unreasonable, as a corporation such as this should employ the due diligence to notify its customers of an address change. An Order establishing the above will be entered today’s date.

 

 

 

 

 

 

 

 

[1] DEFENDANT’s Petition is titled “Petition to Open Judgment”, however, it is referred to as a Petition to Open or Strike Judgment twice in the body of the Petition. There is no mention of a Petition to Strike judgment throughout the remainder of this litigation. A petition to open a default judgment and a petition to strike a default judgment seek distinct remedies and are generally not interchangeable. Stauffer v. Hevener, 881 A.2d 868, 870 (Pa. Super. 2005). Unlike a petition to strike a judgment, “a petition to open a judgment is an appeal to the equitable powers of the court.” Mother’s Restaurant Inc. v. Krystkiewicz, 861 A.2d 327, 336 (Pa. Super. 2004) (en banc). Given DEFENDANT makes little reference to a petition to strike, we believe that this was a typographical error. In the event that this was not a typographical error, we believe that any specific issue concerning service is better answered by the Court in addressing it in the context of a petition to open judgment. See Roy, infra at 1189(“To the extent Mr. Rue challenges the accuracy of the factual averment in the record as to his ‘correct’ address, we note such an issue is more properly considered in a proceeding to open the judgment and not to strike it.”) Accordingly, we will deny any argument that DEFENDANT may have proffered to strike judgment in today’s Opinion.

[2]  We also find it curious as to how DEFENDANT would have been made aware that default judgment was entered against them if it no longer operates out of its Kansas location.