         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Terraces at East Falls Condominium :
Association                        :
                                   :
             v.                    : No. 736 C.D. 2016
                                   : SUBMITTED: October 7, 2016
East Falls Terraces, LLC,          :
                   Appellant       :


BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE JOSEPH M. COSGROVE, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE HEARTHWAY                          FILED: January 27, 2017

            East Falls Terraces, LLC (East Falls) appeals from an order of the
Philadelphia County Court of Common Pleas denying its Petition to Open Default
Judgment (Petition). We affirm.


            East Falls owns a number of condominium units within the Terraces
at East Falls Condominium Association (the Association). On January 28, 2014,
the Association filed a statement of claim in municipal court for unpaid
condominium dues and related charges for Unit 301, 3343 Conrad Street in
Philadelphia (Unit 301), which is owned by East Falls. The claim was twice
dismissed without prejudice due to lack of service of notice. After reinstatement of
the claim, the Association filed an affidavit of service on June 10, 2014, stating
that on June 3, 2014, service of process had been made at Unit 301 to a white, 28-
year-old unidentified female.           The Association’s claim was considered at a
municipal court hearing on June 23, 2014.                 Counsel for the Association was
present, but no representative of East Falls appeared at the hearing. One week
later, the municipal court entered a default judgment against East Falls in the
amount of $6,154.33. Notice of the judgment was mailed by the municipal court to
Unit 301 on June 30, 2014.              The Association began to garnish rents from
condominiums owned by East Falls in December 2014 to satisfy the judgment. On
May 21, 2015, having collected all money due, the Association dissolved the
garnishment and marked the judgment satisfied.


               East Falls filed a petition to open judgment in the municipal court on
April 14, 2015. The petition averred that East Falls had not received service of the
statement of claims. Concluding the “the defense lacked merit,” the municipal
court denied East Falls’ petition on April 18, 2015.


               East Falls then filed a petition to open judgment in the court of
common pleas on June 9, 2015. East Falls maintained that it did not receive notice
of the statement of claim and that the judgment should be opened. The court of
common pleas found that the circumstances did not warrant an opening of the
judgment and denied East Falls’ petition on July 2, 2015. This appeal followed.1



       1
         We review a denial of a petition to open a judgment to determine whether the court
exercised an abuse of discretion. Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175 (Pa.
Super. 2009). An abuse of discretion occurs when a trial court overrides or misapplies the law,
exercises manifestly unreasonable judgment, or exercises partiality, prejudice, bias, or ill will in
reaching its conclusions. Id.


                                                 2
             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). To open a judgment, the moving party must show that
(1) the petition to open was promptly filed; (2) the failure to appear or file a timely
answer must be excusable; and (3) the moving party must show a meritorious
defense. Cintas Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 919 (Pa.
1997). The trial court will not open a default judgment based on the equities of a
case unless the moving party shows all three factors.         Seeger v. First Union
National Bank, 836 A.2d 163 (Pa. Super. 2003). However, when the moving party
asserts improper service, a court must address service before addressing any other
factor. Id. If improper service exists, then the judgment must be opened because
the court lacks jurisdiction against the moving party. Id.


             Fundamentally, notice must “be reasonably calculated to inform
interested parties of the pending action.” Pennsylvania Coal Mining Association v.
Insurance Department, 370 A.2d 685, 692-93 (Pa. 1977).              In this case, the
Association filed an affidavit of service on June 10, 2014, documenting personal
service upon an unidentified adult at Unit 301 on June 3, 2014. The affidavit does
not provide the name of the person served, but it does describe the age, height,
weight, race and sex of the recipient. The affidavit was made subject to the
criminal penalties set forth in section 4904 of the Crimes Code, 18 Pa. C.S. § 4904.


             The municipal court and court of common pleas accepted this
affidavit as sufficient credible evidence of service reasonably calculated to inform
East Falls of the proceeding to collect outstanding condominium dues. East Falls’


                                          3
contrary protestations do not demonstrate any abuse of discretion with respect to
notice regarding the statement of claim.


             A petition to open a judgment must be filed promptly. Cintas, 700
A.2d at 919. The timeliness is determined by reference to the date that the notice
of judgment is received. Ruczynski v. Jesray Construction Corporation, 326 A.2d
326, 328 (Pa. 1974). The record shows that the default judgment was mailed to
Unit 301 on June 30, 2014. East Falls filed its petition with the municipal court on
April 14, 2015, more than nine months later. We find no abuse of discretion in the
determination by the court of common pleas that East Falls failed to file its petition
to open promptly.


             A petition to open must also plead a reasonable excuse for its failure
to appear or answer in the underlying action. Cintas, 700 A.2d at 919. East Falls
claims that it did not appear or answer because it did not receive notice. As
discussed above, we discern no abuse of discretion in the determination of the
court of common pleas that service was sufficient in this case. Consequently, we
conclude that East Falls has failed to present an adequate excuse for its absence
from the underlying litigation.


             The third element required for a successful petition to open judgment
is the pleading of a meritorious defense for the underling action. Id. A careful
review of East Falls’ petition to open judgment reveals that it is completely void of
even a hint of any potential defense to the allegation that East Falls owed




                                           4
condominium dues to the Association. East Falls also has failed to meet the third
prong required in a petition to open judgment.


            For the above reasons, we affirm.




                                      __________________________________
                                      JULIA K. HEARTHWAY, Judge




                                         5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Terraces at East Falls Condominium :
Association                        :
                                   :
             v.                    : No. 736 C.D. 2016
                                   :
East Falls Terraces, LLC,          :
                   Appellant       :


                                  ORDER


            AND NOW, this 27th day of January, 2017, the order of the
Philadelphia County Court of Common Pleas is affirmed.




                                    __________________________________
                                    JULIA K. HEARTHWAY, Judge
