J-A28030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FEDERAL NATIONAL MORTGAGE                            IN THE SUPERIOR COURT OF
ASSOCIATION                                                PENNSYLVANIA

                             Appellee

                      v.

THOMAS KAISER AND TIMOTHY KAISER

                             Appellants                  No. 3368 EDA 2014


                Appeal from the Order Entered October 6, 2014
               In the Court of Common Pleas of Chester County
                    Civil Division at No(s): 2013-04661-RC


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                             FILED JANUARY 12, 2016

      Appellants, Thomas and Timothy Kaiser, appeal from the order entered

on October 6, 2014, by the Honorable Edward Griffith, Court of Common

Pleas of Chester County, which denied Appellants’ petition to open default

judgment. We affirm.

      Plaintiff,   Federal    National    Mortgage   Association   (“Fannie   Mae”),

commenced the underlying action in ejectment against Appellants after

becoming the record owner of Appellants’ former property through a sheriff’s

sale. The trial court denied Appellants’ preliminary objections. Fannie Mae

subsequently filed a motion for summary judgment. On February 11, 2014,

the trial court entered an order granting Fannie Mae’s motion for summary

judgment for Appellants’ failure to respond. Appellants did not file an appeal

from the order within thirty days; thus, the order became final on March 13,
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2014. See Pa.R.A.P. 903(a); Simpson v. Allstate Ins. Co., 504 A.2d 335,

338 (Pa. Super. 2006) (en banc).

      On July 30, 2014, 169 days after entry of the summary judgment

order, Appellants filed an emergency petition to stay execution and a

petition to open default judgment.     In their petition to open, Appellants

averred, “[a] default judgment for failure to file was entered on February 10,

2014, for Defendant’s failure to plead a response to the Plaintiff’s Motion for

Summary Judgment.”        Defendants’ Petition to Open Default Judgment,

7/30/14, at ¶ 1. The trial court subsequently entered an order staying all

proceedings. Following a hearing, the trial court lifted the stay and entered

an order denying Appellants’ petition to open. This timely appeal followed.

      On appeal, Appellants contend that the trial court erred in denying

their petition to open. Specifically, Appellants claim that Fannie Mae did not

have standing to bring the underlying ejectment action; thus, the trial court

should have opened judgment so that the issue could be re-litigated.

      Upon receipt of Appellants’ notice of appeal, this Court noted that, on

its face, the appeal appeared to be untimely filed under Pa.R.A.P. 903(a),

which requires that a notice of appeal “be filed within 30 days after the entry

of the order from which the appeal is taken.”

      Accordingly, this Court entered a rule to show cause order, which

stated as follows.

      This appeal has been taken from the order entered on October 6,
      2014 denying the defendants’ motion to open the judgment. In
      the instant case, the final, appealable order may be the order

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     entered on February 10, 2014 granting summary [judgment].
     See Pa.R.A.P. 341(b)(1) (final order is one that disposed of all
     claims and parties). Once a final order or judgment is entered,
     an appeal must be filed within 30 days and it is not subject to
     collateral attack by virtue of a petition to open or strike.
     Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222 (Pa.
     Super. 2002). The notice of appeal was filed on November 5,
     2014. Therefore, this appeal may be untimely because the
     notice of appeal was not filed within thirty days of February 10,
     2014. See Pa.R.A.P. 903(a) (notice of appeal shall be filed
     within 30 days after the entry of the order from which the appeal
     is taken); Pa.R.A.P. 108(b) (date of entry of a civil order is the
     day on which the clerk makes a notation on the docket that
     notice of the entry of the order has been sent pursuant to
     Pa.R.Civ.P. 236(b)).

     The appellants are directed to show cause as to why this appeal
     should not be quashed. This response is to be filed with this
     court within ten days with service upon all interested counsel.
     Failure to respond to this order within the time specified and as
     directed may result in quash of this appeal without further
     notice.

Rule to Show Cause Order, 1/22/15.

     Appellants filed a response to the order to show cause. Therein, they

argued that “[t]he judgment rendered against [them] is final, however,

‘extraordinary cause’ permits said judgment to be attacked collaterally.”

Response to Order to Show Cause, 2/2/15, at ¶ 2. Specifically, Appellants

argued that the extraordinary cause present in this case is that their former

attorney failed to file a response to Fannie Mae’s motion for summary

judgment, thereby unjustifiably prejudicing them. See id., at ¶ 6.

     Initially, we note that Appellants’ contention that a “default judgment”

was entered against them is incorrect. See Pa.R.C.P. 237.1(a)(1). Rather,

summary judgment was entered due to Appellants’ failure to respond to

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Fannie Mae’s summary judgment motion. See Pa.R.C.P. 1035.3. With that

misunderstanding cleared up, we proceed to the merits.

      A petition to open is an appeal to the court’s equitable powers. See

Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa. Super. 2004). A court’s

authority to open judgments entered in contested matters is more

circumscribed than its ability to open judgments entered by default or

confession. See Simpson, 504 A.2d at 337. In this case, Appellants did

not file an appeal of the summary judgment order. Rather, they collaterally

attacked the summary judgment order once it was final by filing a petition to

open judgment.

      “Generally, judgments regularly entered in adverse proceedings cannot

be opened or vacated after they have become final, unless there has been

fraud or some other circumstance so grave or compelling as to constitute

‘extraordinary cause’ justifying intervention by the court.” Id. (citation and

internal quotation marks omitted).    “Extraordinary cause ‘is generally an

oversight or action on the part of the court or the judicial process which

operates to deny the losing party knowledge of the entry of final judgment

so that the commencement of the running of the appeal time is not known to

the losing party.’”   Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d

1222, 1225 n.4 (Pa. Super. 2002) (citation omitted). We review a refusal to

open a judgment for an abuse of discretion.      See Graziani, 856 A.2d at

1223 (citation omitted).


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       Appellants needed to establish fraud or extraordinary cause as a

reason to compel the trial court to open the judgment.        Appellants do not

even    allege   fraud;   however,   they   do   allege   extraordinary   cause.

Specifically, Appellants claim that extraordinary cause exists because their

former attorney failed to file a response to Fannie Mae’s motion for summary

judgment. This fact does not constitute extraordinary cause because it does

not pertain to an oversight or action on the part of the court or the judicial

process. Thus, Appellants cannot establish extraordinary cause.

       In sum, the trial court did not commit an abuse of discretion in

refusing to open the judgment.       Accordingly, we affirm the order denying

Appellants’ petition to open.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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