J-A18028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ROBERT L. REICHLE, AS POWER              IN THE SUPERIOR COURT OF
ATTORNEY FOR EMILY REICHLE                            PENNSYLVANIA
MARY JUANITA LIPTAK, PETITIONER




APPEAL OF: ROBERT L. REICHLE

                                                     No. 426 WDA 2017


                    Appeal from the Order February 10, 2017
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): GD-17-000769


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                     FILED OCTOBER 27, 2017

       Robert L. Reichle appeals, pro se, from the order of the Court of

Common Pleas of Allegheny County which denied his petition to open/strike.1

Upon careful review, we affirm.

       This matter involves two separate proceedings, only the latter of which

is currently before us. The first, a surcharge action, was brought before the

Orphans’ Court Division. That record is not before this Court, but the facts

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1
  In his notice of appeal, Reichle purports to appeal from two orders: the
February 10, 2017 order denying his petition to open/strike and the March 2,
2017 order denying his motion for reconsideration. Pennsylvania case law is
clear that the refusal of a trial court to reconsider a final decree is not
reviewable on appeal. Provident Nat. Bank v. Rooklin, 378 A.2d 893,
897 (Pa. Super. 1977). Rather, an appeal properly lies from the underlying
final order. We have amended the caption accordingly.
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and circumstances are relevant here.       We have gleaned the following

background from the memorandum decision issued by this Court in affirming

the surcharge order entered in the Orphans’ Court. See Reichle v. Liptak,

802 WDA 2015 (Pa. Super. filed 8/24/16) (unpublished memorandum

decision).

      On February 2, 2005, Emily Reichle (“Principal”) executed a power of

attorney granting her son, Appellant Reichle, the power to act as her agent.

Id. at 1.    On April 29, 2013, Principal’s daughter, Appellee Mary Juanita

Liptak, filed in the Allegheny County Orphans’ Court a petition for citation

seeking an order directing Reichle to file an account of his agency. Id. On

May 16, 2013, the court entered an order directing Reichle to file an

account.     When Reichle did not comply, sanctions were imposed, fines

accumulated and incarceration was threatened.       Id. at 2.   Reichle finally

filed his account on January 2, 2014, and Liptak filed objections. Id.

      The matter proceeded to trial, after which, on January 16, 2015, the

Orphans’ Court entered an order imposing a surcharge against Reichle in the

amount of $497,215.11. Id. Reichle appealed the surcharge order, raising

issues of standing, laches, and the statute of limitations; it appears that

Reichle did not challenge the propriety of the surcharge itself.   This Court

affirmed on August 24, 2016.     See id.   Reichle did not seek allowance of

appeal to our Supreme Court.

      At some point in the proceedings, Principal died. The record does not

indicate when Principal died, and her estate was never made a party to

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these proceedings.    Indeed, it does not appear that an estate was ever

raised.

      On January 13, 2017, Liptak filed a praecipe to enter judgment on a

non-jury verdict in the civil division for purposes of execution. On January

31, 2017, Reichle filed a petition to open/strike the judgment, purportedly

pursuant to Pa.R.C.P. 2959, in which he asserted that any right to enforce

the underlying judgment “inures to the Executor or personal representative

of any estate in an Orphan[s’] Court proceeding in the name of Emily

Reichle.” Petition to Open/Strike, 1/31/17, at ¶ 12. Reichle also relied upon

Pa.R.C.P. 206.4, asserting that the judgment “on its face has no legal basis”

and should thus be stricken. Id. at ¶ 16. Reichle asserted that Liptak and

her counsel:

      are and were aware of the Superior Court decision that
      specifically delineates that the rights under the surcharge were
      those of the decedent Emily Reichle, as Principal, against Robert
      L. Reichle, as agent-in-fact; and . . . have intentionally
      attempted to “bootstrap” a surcharge entered in favor of Emily
      Reichle, as Principal, against her son Robert L. Reichle, as her
      agent-in-fact to a judgment in favor of Ma[r]y Juanita Liptak
      against Robert L. Reichle.

Id. at 14 (emphasis in original).

      By order dated February 10, 2017, the trial court denied Reichle’s

petition to open/strike.   On February 15, 2017, Reichle filed a motion for

reconsideration, which the court denied on March 2, 2017. In doing so, the

court concluded that Reichle’s purpose in moving to open/strike the

judgment was “to re-litigate the surcharge proceedings which had been

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decided against him and sustained on appeal” and that the surcharge order

was a final judgment which was properly transferred to the civil division for

execution. Memorandum Order, 3/2/17, at 2. This timely appeal follows, in

which Reichle raises the following issues for our review:

      1. The court’s refusal to open/strike the judgment entered by
         Mary Juanita Liptak and refusal to grant [r]econsideration
         were errors as a matter of law because [Reichle] acted
         without undue delay in seeking to open or strike the
         judgment entered and asserted an unassailable and
         meritorious defense to the judgment entered and otherwise
         complied with the mandates of Schultz v. Erie Insurance
         Exchange, 477 A.2d 471 (Pa. 1984).

      2. The court’s refusals to open/strike the judgment entered by
         Mary Juanita Liptak and/or to grant reconsideration on that
         refusal or to set [a] hearing to develop [a] factual basis for
         addressing the opening/striking of the Liptak judgment,
         constituted an erroneous endorsement of the entry of the
         surcharge/judgment in favor of [Reichle’s] mother as the
         equivalent of a judgment for [Reichle’s] sister, thereby
         resulting in an unconstitutional taking of [Reichle’s] property
         in violation of [Reichle’s] constitutional rights of protection of
         property or proprietary interests, without the procedural due
         process rights having been afforded [Reichle].

Brief of Appellant, at 15.

      Reichle first asserts that the trial court erred in refusing to grant his

petition to open/strike because he acted without undue delay, asserted a

meritorious defense, and otherwise complied with the mandates of Schultz.

Reichle is entitled to no relief.

      In seeking to open/strike the judgment in this matter, Reichle relied

upon rules of court pertaining to the striking or opening of judgments by

confession and default judgments. Likewise, Schultz concerns the opening

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of a default judgment. This matter, however, involves a judgment entered

on a non-jury verdict that has been affirmed on appeal. As such, none of

the rules of court invoked by Reichle is relevant to the instant matter and

they provide no basis for opening or striking the judgment entered in this

case.2

       Reichle’s second and final claim asserts that the court’s refusal to

strike or open the judgment constitutes an unconstitutional taking of his

property without due process of law.           This argument is patently meritless.

The basic elements of procedural due process are adequate notice, the

opportunity to be heard, and the chance to defend oneself before a fair and

impartial tribunal having jurisdiction over the case.          Commonwealth v.

Turner, 80 A.3d 754, 764 (Pa. 2013). Here, judgment was entered on a

surcharge order issued following a full hearing on the merits. Reichle was

provided notice and an opportunity to be heard in the Orphans’ Court, which

possesses jurisdiction over all matters pertaining to the exercise of powers

____________________________________________


2
  Even if we were to apply the framework of Rule 2959, Reichle would be
entitled to no relief. A petitioner seeking to open a default judgment must
establish prima facie grounds to open judgment before a rule to show cause
may issue to compel a response. Pa.R.C.P. 2959(b). Such a prima facie
showing must include a demonstration that: (1) the petition has been
promptly filed; (2) a meritorious defense can be shown; and (3) the failure
to appear can be excused. Schultz, 477 A.2d at 472. Here, Reichle does
not dispute the propriety of the underlying surcharge, which is the sole basis
for the judgment. Thus, he is unable to demonstrate a meritorious defense,
as required under Schultz, and his claim must fail.




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by agents acting under powers of attorney as provided in Chapter 56 of the

Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 5601 et seq. Reichle

filed an appeal to this Court, which affirmed the surcharge, and declined to

seek allowance of appeal to the Supreme Court. He cannot now assert that

he has been deprived of procedural due process.3

       Order affirmed. Application for relief denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017



____________________________________________


3
  We agree with Reichle that there exists a possible ambiguity as to the
identity of the judgment creditor. In her brief, Liptak asserts that she,
individually, is the rightful judgment creditor, because she was allegedly the
co-owner, either by joint tenancy or right of survivorship, of the accounts
from which Reichle wrongfully withdrew money using his authority as agent
under Emily Reichle’s power of attorney. Reichle, on the other hand, argues
that the Estate of Emily Reichle is entitled to the surcharge. Based on the
certified record before us, which does not include the underlying Orphans’
Court proceedings, we have no means by which to ascertain the identity of
the party properly entitled to enforce the judgment against Reichle.
Ultimately, it would be for the personal representative of Emily Reichle’s
estate, if and when appointed, to challenge Liptak’s entitlement to the funds
in question. That issue, however, is not properly before us.




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