J-A05001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ADAM HERBERT                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

LILIYA KHOLYAVKA

                          Appellant                No. 3157 EDA 2010


              Appeal from the Order Entered September 29, 2010
             In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 1486 April Term 2010


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

MEMORANDUM BY GANTMAN, P.J.:                       FILED MARCH 17, 2015

      Appellant, Liliya Kholyavka, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying her petitions to

open/strike a default judgment entered in favor of Appellee, Adam Herbert.

We affirm.

      The trial court set forth the relevant facts and procedural history of

this appeal as follows:

         On April 12, 2010, [Appellee] filed a Complaint for
         Declaratory Judgment against [Appellant]. The Complaint
         alleges that [Appellant] and [Appellee] had entered into an
         Agreement of Sale for real property. [Appellant] placed
         $6,000 in escrow as a down payment towards the
         purchase. The Agreement states that if [Appellant] failed
         to close, [Appellee’s] remedies were limited to retaining
         the down payment. [Appellant] was notified in 2002 that
         the Agreement was terminated due to [Appellant’s] failure
         to close. [Appellee] declared a forfeiture of the deposit
         monies and notified [Appellant] of her right to mediation.
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         [Appellant] did not respond. [Appellant] was served with
         the Complaint on April 17, 2010 by personal service.
         [Appellant] did not file a response and a default judgment
         was entered on June 1, 2010. On August 16, 2010,
         [Appellant] filed both a Petition to Strike and Petition to
         Open the default judgment.        This court denied both
         Petitions on September 29, 2010.

(Trial Court Opinion, filed January 25, 2011, at 1-2). On October 29, 2010,

Appellant filed a notice of appeal. The appeal was subsequently stayed on

May 18, 2011, due to Appellant filing for bankruptcy protection earlier in

May 2011.      The Bankruptcy court ultimately dismissed the matter on

February 28, 2012. Following notice to this Court on June 27, 2014, of the

bankruptcy case dismissal, this Court vacated the stay on July 24, 2014, and

permitted the appeal to proceed.

      Appellant raises the following issues for our review:

         DID NOT THE TRIAL COURT ERR BY ITS FAILURE TO
         EXERCISE JUDICIAL DISCRETION IN LIGHT OF THE
         SELLER’S FAILURE TO JOIN THE ESCROW HOLDER IN THE
         ACTION?

         DID NOT THE TRIAL COURT ERR BY REFUSING TO STRIKE
         OFF THE DEFAULT JUDGMENT IN ABSENCE OF JOINDER
         OF AN INDISPENSABLE PARTY?

         DID NOT THE TRIAL COURT ERR BY REFUSING TO OPEN
         THE JUDGMENT AND LET THE BUYER IN FOR A DEFENSE
         BASED UPON SELLER’S AND BUYER’S AGREEMENT TO
         MEDIATE ANY DISPUTE OR CLAIM?

(Appellant’s Brief at 4).

      In issues one and two combined, Appellant asserts all persons having

an interest in the proceedings who would be affected by the declaratory


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judgment must be made parties to the action. Specifically, Appellant argues

the real estate broker (“Broker”), acting as escrow agent, was required to be

made a party to the declaratory judgment action. Appellant avers Broker is

an indispensable party because the relief sought in the action is an order

requiring Broker to surrender the escrow funds to Appellee.            Appellant

believes the failure to join Broker is a jurisdictional defect, and scheduling an

assessment of damages hearing following entry of the default judgment

exceeded the jurisdiction of the court, absent joinder of Broker.       In other

words, Appellant contends the failure to join Broker in the action deprives

the court of subject matter jurisdiction, because Broker has an interest

affected by the declaration.    Appellant asserts the judgment by default in

this declaratory judgment action must be struck as there was no joinder of

Broker, which constitutes a fatal defect on the face of the record. Appellant

claims the default judgment is void, because the trial court lacked subject

matter jurisdiction. Appellant avows the issue of failure to join Broker as an

indispensable party can be raised for the first time on appeal, even though

Appellant did not present it to the trial court.

      In issue three, Appellant directs our attention to paragraph “29” of the

Agreement for Sale, titled “MEDIATION.”            Appellant contends she and

Appellee elected to include the mediation clause in their agreement, and as a

result, mediation is a necessary first step before any judgment could be

entered.   Additionally, Appellant asserts the trial court misinterpreted the


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intent of the mediation clause and incorrectly disregarded its effect upon the

judicial proceeding.   Appellant concludes the default entered should be

struck, the order denying Appellant’s motion to strike/open the default

judgment should be reversed, and the case should be remanded for further

proceedings. We disagree.

      “Our standard of review regarding [a]ppellant’s petition to strike

default judgment is well settled.      Appellant’s first issue questions the

applicability of a Pennsylvania Rule of Civil Procedure to the instant case. As

this presents us with a question of law, our standard of review is de novo

and our scope of review is plenary.”          Oswald v. WB Public Square

Associates, LLC, 80 A.3d 790, 793 (Pa.Super. 2013) (citing Skonieczny v.

Cooper, 37 A.3d 1211, 1213 (Pa.Super. 2012)).

      A petition to strike a default judgment operates as a demurrer to the

record, and the court must grant the petition whenever some fatal defect

appears on the face of the record. PNC Bank v. Bolus, 655 A.2d 997, 999

(Pa.Super. 1995). “[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.”   Oswald, supra at 794 (quoting

City of Philadelphia v. David J. Lane Advertising, Inc., 33 A.3d 674,

677 (Pa.Cmwlth. 2011)) (internal quotation marks omitted). A fatal defect

on the face of the record denies a prothonotary the authority to enter the


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judgment. Erie Ins. Co. v. Bullard, 839 A.2d 383, 388 (Pa.Super. 2003).

If a prothonotary enters judgment without authority, that judgment is void

ab initio. Id. (holding non-compliance with rule governing service of intent

to take default judgment rendered judgment void ab initio).

      “When deciding if there are fatal defects on the face of the record for

the purposes of a petition to strike a [default] judgment, a court may only

look at what was in the record when the judgment was entered.”           Cintas

Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 90, 700 A.2d 915,

917 (1997) (citation omitted). Failure to adhere to the Pennsylvania Rules

of Civil Procedure regarding service of process is a facially fatal defect. Id.

at 91, 700 A.2d at 917-18 (stating: “Service of process is a mechanism by

which a court obtains jurisdiction of a defendant, and therefore, the rules

concerning service of process must be strictly followed.      …   Without valid

service, a court lacks personal jurisdiction of a defendant and is powerless to

enter judgment against him or her. … Thus, improper service is not merely

a procedural defect that can be ignored when a defendant subsequently

learns of the action against him or her.      …    [T]he fact of service is the

important thing in determining jurisdiction and…proof of service may be

defective or even lacking, but if the fact of service is established jurisdiction

cannot be questioned”).

      The grant or denial of a petition to open a default judgment is a matter

of judicial discretion. Schultz v. Erie Ins. Exchange, 505 Pa. 90, 477 A.2d


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471 (1984).      A petition to open a default judgment is an appeal to the

court’s equitable powers, and absent an error of law or an abuse of

discretion, this Court will not disturb that decision on appeal.          Reid v.

Boohar, 856 A.2d 156 (Pa.Super. 2004).

          Judicial discretion requires action in conformity with law on
          facts and circumstances before the trial court after hearing
          and consideration. Consequently, the court abuses its
          discretion if, in resolving the issue for decision, it
          misapplies the law or exercises its discretion in a manner
          lacking reason.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000)

(internal citations omitted). Where a petition to open a default judgment is

not filed within ten (10) days of entry of the default judgment, 1 the movant

must (1) promptly file a petition to open, (2) offer a justifiable excuse for

the delay that caused the default, and (3) aver a meritorious defense that, if

proved at trial, would afford the defendant relief. Reid, supra at 160. To

succeed, the petitioner must meet all three requirements. US Bank N.A. v.

Mallory, 982 A.2d 986, 995 (Pa.Super. 2009); Duckson v. Wee Wheelers

Inc., 620 A.2d 1206 (Pa.Super. 1993). In other words, if the petitioner fails

to meet even one requirement for opening the default judgment, the court

can deny relief without even considering arguments made with regard to the
____________________________________________


1
  Rule 237.3(b) of the Pennsylvania Rules of Civil Procedure provides: “If the
petition [for relief from the default judgment] is filed within ten days after
the entry of the judgment on the docket, the court shall open the judgment
if the proposed complaint or answer states a meritorious cause of action or
defense.” Pa.R.C.P. 237.3(b).



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two other requirements.     Id. at 1209.   If the petitioner has made some

showing as to all three prongs of the test, then the court is entitled to

consider each point in light of all the “circumstances and equities of the

case.”    Id.    Courts “must determine       whether    there   are   equitable

considerations which require that a defendant, against whom a default

judgment has been entered, receive an opportunity to have the case decided

on the merits.” Id. at 1208.

      With respect to the first requirement that the petitioner promptly file a

petition to open, courts do not “employ a bright line test”; courts focus “on

two factors: (1) the length of the delay between discovery of the entry of

the default judgment and filing the petition to open judgment, and (2) the

reason for the delay.” Flynn v. America West Airlines, 742 A.2d 695, 698

(Pa.Super. 1999). Given an acceptable reason for the delay, one month or

less between the entry of the default judgment and the filing of a petition for

relief from the judgment typically meets the time requirement for a prompt

filing of a petition for relief. Myers v. Wells Fargo Bank, N.A., 986 A.2d

171, 176 (Pa.Super. 2009).     See also US Bank N.A., supra (comparing

cases and rejecting as tardy eighty-two day interval between default

judgment and petition for relief).

      With respect to the second requirement, 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 the default


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judgment. Id. “While some mistakes will be excused, …mere carelessness

will not be….”   Bahr v. Pasky, 439 A.2d 174, 177 (Pa.Super. 1981).       In

Flynn, for example, the petitioner’s unintentional failure to act, due to a

defective mail receipt system, was not considered a legitimate explanation

for the delay that caused entry of the default judgment.    Flynn, supra at

699. Finally, as to asserting a meritorious defense, the petitioner must aver

facts which if proved at trial would justify relief.   See Duckson, supra.

Significantly, “A petition for relief from a judgment of…default entered

pursuant to Rule 237.1 shall have attached thereto a verified copy of the

complaint or answer which the petitioner seeks leave to file.”     Pa.R.C.P.

237.3.

      “An indispensable party is one whose rights are so directly connected

with and affected by litigation that he must be a party of record to protect

such rights.” CRY, Inc. v. Mill Service, Inc., 536 Pa. 462, 468, 640 A.2d

372, 375 (1994) (citing Scherbick v. Community College of Allegheny

County, 479 Pa. 216, 220, 387 A.2d 1301, 1303 (1978)). Therefore, the

absence of the indispensable party renders any court’s order or decree null

and void for lack of jurisdiction. CRY, Inc., supra at 468, 640 A.2d at 375.

Important considerations in the determination of who are indispensable

parties include, but are not limited to, the nature of the absent party’s

interest relating to the claim and whether that interest is essential to the

merits of the issue.   Id. at 468, 640 A.2d at 375 (citing Mechanicsburg


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Area School Dist. v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981)).

“If no redress is sought against a party, and its rights would not be

prejudiced by any decision in the case, it is not indispensable with respect to

the litigation.”   Grimme Combustion, Inc. v. Mergentime Corp., 595

A.2d 77, 81 (Pa.Super. 1991), appeal denied, 530 Pa. 644, 607 A.2d 254

(1992).   Under the totality of the circumstances, the principal inquiry is

whether justice requires the presence of the absent party.         CRY, Inc.,

supra at 469, 640 A.2d at 375. The issue of failure to join an indispensable

party can be raised for the first time on appeal or sua sponte by the

reviewing court. Hart v. O’Malley, 647 A.2d 542, 549 (Pa.Super. 1994),

affirmed, 544 Pa. 315, 676 A.2d 222 (1996).

      Instantly, Appellant failed to identify a specific right of Broker that

would be affected or impinged by the declaration of judgment in this case,

except to identify Broker as the person holding and required to release the

funds. Broker was not a party to the real estate transaction. Broker’s role

has been and is simply one of facilitation. Broker must release the escrowed

funds to either one party or the other eventually, depending on the outcome

of the case. Broker has no personal interest in or right to the money held in

escrow; Broker is simply a disinterested stake-holder awaiting the court’s

instructions to release the funds.    Absence of Broker as a party in the

present action in no way affects the authority and legality of the default

judgment.      Instead, Broker should welcome the protection of court


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instructions to disperse the funds so Broker will not be at risk to pay twice.

Based on the circumstances of this case, we conclude Broker is not an

indispensable party to the present action. Therefore, Appellant’s issues one

and two merit no relief.

      With regard to Appellant’s issue three, on the alleged binding nature of

the mediation clause in the Agreement of Sale, the trial court reasoned as

follows:

           [Appellant] does not challenge service of the complaint nor
           raise any irregularity on the face of the record.
           [Appellant’s] only argument to strike default judgment is
           that [Appellee] failed to avail [himself] of required
           mediation before filing suit and entry of the default
           judgment.     This court does not agree.         While the
           Agreement contains a mediation provision, it states as
           follows;

             Buyer and Seller will try and resolve any disputes or
             claim that may arise from the Agreement through
             mediation in accordance with the Rules and
             Procedures of the Home Seller/Home Buyer Dispute
             Resolution System. Any agreement reached through
             a mediation…will be binding.

           See Section 29 of Agreement.

           It appears that mediation is not required by the
           Agreement, as the language states that the parties “will
           try” to resolve the disputes by mediation. There is no
           language that mandates mediation before [] filing an
           action and/or the entry of a default judgment. Clearly,
           this is not a defect that warrants default judgment [to] be
           stricken.

                                   *     *      *

           [Appellant] filed her Petition approximately seventy-five
           days after entry of the default judgment. [Appellant] fails

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         to offer any reason for her…failure to answer the
         Complaint.     Finally, [Appellant] does not assert a
         meritorious defense [or] attach a proposed Answer to the
         Complaint. The only argument put forth by [Appellant] is
         that the Agreement of Sale contained a mandatory
         mediation clause. As previously stated, any reference to
         mediation in the Agreement was voluntary and not
         mandated.

(Trial Court Opinion at 2-4).       We accept the court’s rationale on the

voluntary nature of the mediation clause. Further, when Appellee declared

the forfeiture of the deposit money for Appellant’s failure to close on the

transaction, Appellee notified Appellant of her right to invoke mediation.

Appellant did not respond. Thus, Appellant then or now cannot argue failure

to mediate as a ground to strike or open the judgment.

      Moreover, Appellant failed to follow the applicable rules of court, where

Appellant did not attach to her petition to open a verified copy of the answer

to the complaint she wished to file. Appellant’s failure in this respect is more

than merely a procedural defect that the court can ignore, because this

particular error impinged on Appellee’s rights. See Pa.R.C.P. 237.1, 237.3.

Therefore, the court was correct to deny the petition to open on this ground

as well. Based upon the foregoing, we see no reason to disturb the court’s

decision. Accordingly, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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