J-A10015-14

                              2015 PA Super 18

DONALD R. SISSON           AND
                          MARY : IN THE SUPERIOR COURT OF
SISSON, HIS WIFE,               :      PENNSYLVANIA
                                :
              Appellants        :
                                :
         v.                     :
                                :
JOSEPH   STANLEY,    HIS HEIRS, :
SUCCESSORS, EXECUTORS, ASSIGNS, :
AND ANY PERSONS CLAIMING BY, :
THROUGH, OR FROM THEM,          :
                                :
              Appellees         : No. 1347 MDA 2013

                 Appeal from the Order entered June 28, 2013,
                 Court of Common Pleas, Susquehanna County,
                       Civil Division at No. 2010-620 C.P.

BEFORE: DONOHUE, ALLEN and STABILE, JJ.

DISSENTING OPINION BY DONOHUE, J.:               FILED JANUARY 27, 2015

      With due deference to the Majority, the decision to affirm the trial

court’s order opening the judgment in the absence of any evidentiary record

completely disregards our standard of review. The certified record on appeal

reflects that the Appellee, Rita Stanley Lupold (“Lupold”), submitted no

evidence to the trial court in support of her allegations in the petition to

open the judgment, including no evidence of a lack of actual notice of the

action (either as a result of the service by publication or otherwise) and no

evidence to support a finding that the search for potential heirs was

insufficient.   The trial court, in the absence of any evidence, apparently

conducted its own factual investigation to provide itself with a basis for its
J-A10015-14


decision.   The learned Majority, rather than follow our standard of review

requiring reversal in the absence of any evidence of record, has instead

“supplemented” the certified record on appeal in direct contravention of the

Pennsylvania Rules of Appellate Procedure.     While I am not blind to the

laudable desire to rectify an apparent prejudice when a judgment appears to

have been entered without adequate notice of suit, we cannot do so based

upon mere assumptions and unsupported allegations. For these reasons, I

must respectfully dissent.

      Unlike the Majority, I begin with our standard of review. A petition to

open a judgment is an appeal to the equitable powers of the court. Cintas

Corp. v. Lee's Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa. 1997); First

Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 485

A.2d 1086, 1088 (Pa. 1984). Our standard of review in matters of equity is

to determine whether the findings of fact are supported by competent

evidence, whether an error of law has been committed, or whether there has

been a manifest abuse of discretion. Possessky v. Diem, 655 A.2d 1004,

1008 (Pa. Super. 1995). To do so, we must “examine the entire record” and

“where the equities warrant … this Court will not hesitate to find an abuse of

discretion.”   Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d

1269, 1280 (Pa. Super. 2005) (quoting Reid v. Boohar, 856 A.2d 156, 159

(Pa. Super. 2004)).




                                    -2-
J-A10015-14


      My review of the record here discloses no basis upon which to affirm

the trial court’s decision to open the judgment. In connection with a quiet

title action filed by Appellants, Donald and Mary Sisson (the “Sissons”), the

trial court granted a motion for service by publication pursuant to Rule

430(a) of the Pennsylvania Rules of Civil Procedure, directed to the heirs or

assigns of Joseph M. Stanley. On May 5, 2010, the Sissons published notice

of their suit in the Susquehanna County Independent (per Rule 430(b)).

After no heirs or assigns of Joseph M. Stanley responded to the service by

publication, on August 2, 2010, the trial court entered judgment in favor of

the Sissons.

      Four months later, on November 9, 2010, Lupold (by and through her

powers of attorney) filed a verified petition to open the judgment (the

“Petition”) entered on August 2, 2010. The trial court immediately entered

an order in the form provided in Rule 206.6 of the Pennsylvania Rules of

Civil Procedure.1




1
   By local rule, Susquehanna County has adopted the alternative procedure
in Pa.R.C.P. 206.6 requiring the issuance of a rule to show cause as a matter
of course upon the filing of a petition. Susq. Civil Rule 206.4(c). The form
of order prescribed by Rule 206.6 requires the trial court to set a date for
completion of depositions and schedule an argument thereafter. The Note to
Rule 206.6 provides that a county may opt to replace the discovery and
argument provisions in paragraphs (4) and (5) of the order with an
evidentiary hearing. Pa.R.C.P. 206.6 Note. Susquehanna County has not
adopted this optional practice.


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J-A10015-14


                                     ORDER

     AND NOW, this 9th day of November, 2010, upon consideration
     of the foregoing petition, it is hereby ordered that

           (1) A rule is issued upon the Respondents to show
           cause why the petitioner is not entitled to the relief
           requested;

           (2) The Respondents shall file an answer to the
           petition within twenty (20) days of service upon the
           Respondents;

           (3) This petition shall be decided pursuant to
           Pennsylvania Rule of Civil Procedure 206.7;

           (4) Depositions shall be completed within __ days of
           this date;

           (5) Argument [] shall be held on December 28,
           2010, 11:15 a.m. in Courtroom #1 of the
           Susquehanna County Courthouse; and

           (6) Notice of the Entry of this Order shall be provided
           to all parties by the Petitioner or her counsel.

                             BY THE COURT


Trial Court Order, 11/9/2010, at 1 (emphasis added).

     The Sissons filed a verified answer and new matter to the Petition on

December 3, 2010, and Lupold filed an answer to the new matter on

December 21, 2010. The record does not reflect any other activity by the

parties until oral argument on December 28, 2010, including no depositions

or other discovery and no briefs or other submissions to the trial court. The




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record does not contain a transcript of the oral argument.     The trial court

then issued the following order:

                                     ORDER

            NOW TO WIT, this 28th day of December 2010, after
      argument held on the [Petition], it be and is hereby Ordered that
      the judgment ordered July 12, 2010, be and is hereby Opened.

             [Lupold is] directed to file a responsive pleading to
      Plaintiffs’ Complaint within twenty (20) days of this Order.

             We specifically find under the circumstances that [the
      Sissons] averred that they believed John M. Stanley to be
      deceased[,] that the attempts to locate his heirs were
      insufficient as outlined in the Affidavit Pursuant to Pa.R.C.P.
      430(a), and as such service upon the heirs of John M. Stanley
      was invalid. We specifically note no mention of investigation of
      contents of the will at Will Book 20 Page 570. See Deer Park
      Lumber v. Major, 384 Pa. Super. 625, 559 A.2d 941 (1989).

                              BY THE COURT


Trial Court Order, 12/28/2010, at 1.2 On December 29, 2010, counsel for

the Sissons, apparently not having received service of the trial court’s order,

filed a post-argument brief in opposition to the Petition.

      In paragraph (1) of its November 9, 2010 order, the trial court issued

a rule to show cause why the relief requested in the Petition should not be

granted, and in paragraph (3) the trial court acknowledged that the rule to

show cause would be decided in accordance with Rule 206.7 of the

Pennsylvania Rules of Civil Procedure.


2
   On January 24, 2011, the trial court issued an Amended Order noting the
will was at page 560 rather than page 570.


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J-A10015-14


     Rule 206.7. Procedure After Issuance of Rule to Show Cause

           (a) If an answer is not filed, all averments of fact in
           the petition may be deemed admitted for the
           purposes of this subdivision and the court shall enter
           an appropriate order.

           (b) If an answer is filed raising no disputed issues of
           material fact, the court on request of the petitioner
           shall decide the petition on the petition and answer.

           (c) If an answer is filed raising disputed issues of
           material fact, the petitioner may take depositions on
           those issues, or such other discovery as the court
           allows, within the time set forth in the order of the
           court. If the petitioner does not do so, the petition
           shall be decided on petition and answer and all
           averments of fact responsive to the petition and
           properly pleaded in the answer shall be deemed
           admitted for the purpose of this subdivision.

           (d) The respondent may take depositions, or such
           other discovery as the court allows.

Pa.R.C.P. 206.7.3


3
   In a footnote, the Majority contends that any discussion of Rule 206.7 is
“inapposite” because the Sissons did not challenge the trial court’s lack of
compliance with the rule. Majority Opinion at 5 n.4. Whether the Sissons
objected to the lack of compliance with Rule 206.7 is entirely irrelevant,
however, since the lack of compliance by everyone involved in the process
resulted in the absence of any evidentiary record to consider on appeal –
which implicates our standard of review. It is impossible to review the
adequacy of the record in this appeal without understanding the petition and
rule proceedings that generated the trial court’s decision. Noncompliance
with Rule 206.7 is not the basis of my dissent – the lack of evidence in the
record is.

Frankly, nothing in the certified record suggests that counsel for the Sissons
had any better understanding of proper petition and rule practice under Rule
206.7 than did counsel for Lupold or the trial court. Unfortunately, as the
present discussion demonstrates, for our purposes, the result of this
collective confusion is the lack of any evidentiary record -- and thus


                                    -6-
J-A10015-14


      As indicated, the Sissons filed a verified answer to the Petition on

December 3, 2010. My review of this answer shows that it raised at least

two disputed issues of fact material to the resolution of the rule to show

cause.   First, the Sissons disputed that service by publication had not

provided Lupold with notice of the action prior to the entry of judgment, as

alleged in paragraph 10 of the Petition:

            Petition ¶ 10.     [Lupold] never received actual or
            constructive notice of the above captioned action prior
            to entry of the Order or judgment entered thereon.

            Answer ¶ 10. The allegations contained in Paragraph
            10 of [the Petition] are conclusions of fact and law to
            which no response is required under the Pennsylvania
            Rules of Civil Procedure and they are, therefore,
            deemed denied and placed at issue.          Strict proof
            thereof is demanded at the time of trial.

Petition, 11/9/2010, ¶ 10; Answer, 12/3/2010, ¶ 10. Second, the Sissons

disputed Lupold’s contention that the search for heirs as set forth in the

affidavit accompanying the motion for service by publication was insufficient

and, more specifically, that they had failed to locate an obituary in a local

newspaper that would have disclosed Joseph M. Stanley’s heirs:

            Petition ¶ 8. [Lupold] alleged the search made by [the
            Sissons] was insufficient under the circumstances,
            particularly in light of the fact that they failed to
            discover Joseph M. Stanley’s obituary, published in a
            local newspaper, which would have resulted in the
            discovery of his surviving sister and nieces and
            nephews.


providing no basis on which to affirm the trial court’s order granting the
petition to open.


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J-A10015-14



            Answer ¶ 8. The allegations contained in Paragraph 8
            of [the Petition] are conclusions of fact and law to
            which no response is required under the Pennsylvania
            Rules of Civil Procedure and they are, therefore,
            deemed denied and placed at issue.        Strict proof
            thereof is demanded at the time of trial.

Petition, 11/9/2010, ¶ 8; Answer, 12/3/2010, ¶ 8.

      Because the Sissons filed a timely answer raising disputed issues of

material fact,4 they triggered the application of section (c) of Rule 206.7.

Pursuant to Rule 206.7(c), Lupold had the burden of taking depositions or

other discovery to provide the trial court with evidence to support the factual

allegations in the Petition. As Rule 206.7 makes clear, the burden of proof

with respect to disputed issues of material fact rests with the petitioner,

since if the petitioner fails to present evidence, the trial court must accept as

true the allegations of fact in the respondent’s answer.       Petition of Tax

Claim Bureau of Westmoreland Cnty., 613 A.2d 634, 638 (Pa. Cmwlth.

1992) (“[T]he party who has obtained the rule has the burden of proof upon

him.”); McCoy v. Mahoney, 820 A.2d 736, 740            (Pa. Super. 2003); see


4
   Arguably, the Sissons’ answers here constitute general denials under Rule
1029(b). Pa.R.C.P. 1029(b). Rule 1029(b), however, has no application in
rule to show cause practice under Rules 206.1-206.7. By its terms, Rule
1029(b) applies only to “pleadings,” and Rule 1017 (which lists the types of
pleadings allowed in civil actions) does not include petitions for rules to show
cause or answers filed thereto as “pleadings.” See Pa.R.C.P. 1017. Rule
206.7(c) requires only that an answer to a petition for a rule to show cause
raise one or more disputed issues of material fact, and the Sissons’ answers
to paragraphs 8 and 10 of the Petition, which deny Lupold’s allegations of
fact in those paragraphs and demand strict proof to the contrary, satisfy this
basic requirement.


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J-A10015-14


also 500 James Hance Court v. Pennsylvania Prevailing Wage

Appeals Bd., 33 A.3d 555, 575-76 (Pa. 2011) (“In every lawsuit, somebody

must go on with it; the plaintiff is the first to begin, and if he does nothing

he fails.   …   The test, therefore, as to the burden of proof is simply to

consider which party would be successful if no evidence at all was given.”).

      The certified record on appeal does not disclose that Lupold took any

depositions or other discovery.   The record likewise does not demonstrate

that Lupold ever introduced or otherwise submitted any evidence to the trial

court in support of the disputed issues of material fact alleged in her

Petition. The trial court did not conduct an evidentiary hearing. While the

trial court’s December 28, 2010 order confirms that it heard oral argument

before granting the rule, there is no indication in the record that it received

any evidence at this proceeding.5      Far from disputing this point, in her

appellate brief filed with this Court, Lupold freely admits that “not one word

of testimony was taken in this case,” and she agrees that the trial court

decided the case despite “the lack of an evidentiary record.” Lupold’s Brief

at 3, 7.6

      In granting the rule to show cause and opening the judgment, the trial

court necessarily and/or expressly decided the disputed issues of material


5
  As noted hereinabove, the record does not contain a transcript of the oral
argument.
6
  Clearly unaware that the burden of proof rested with her, Lupold faults the
Sissons for not requesting an evidentiary hearing. Lupold’s Brief at 3, 7.


                                     -9-
J-A10015-14


fact in Lupold’s favor despite the absence of any evidence of record to

support those determinations.      No evidence of record supports Lupold’s

allegation that she did not receive notice of the Sissons’ action, either as a

result of the service by publication or otherwise. Lupold also introduced no

evidence of record to provide any basis for the trial court’s determination

that the Sissons’ search for potential heirs was insufficient.     Lupold’s only

specific factual allegation in this regard (that an obituary in a local

newspaper had identified said heirs) remains wholly unsupported, as Lupold

never introduced the alleged obituary into evidence or offered any

information upon which the trial court could have found that the Sissons

should have located it (including, inter alia, the name of the local newspaper

in question, the date of publication of the obituary, or the heirs identified).

As set forth hereinabove, our standard of review permits affirmance of a trial

court’s order only if its findings of fact are supported by competent evidence.

Possessky, 655 A.2d at 1008. In the absence of any evidentiary record to

support the trial court’s factual findings in this case, we must reverse.

      In the absence of an evidentiary record, the trial court conducted its

own factual investigation to provide a basis for its decision. In its December

28, 2010 order, the trial court refers to Joseph M. Stanley’s will, which it

found in the Susquehanna Recorder of Wills’ office.        Trial   Court Order,

12/28/2010, at 1. This is the first, and the only, reference to the Stanley

will during the entirety of the proceedings in the trial court until this time,



                                     - 10 -
J-A10015-14


including no references in either Lupold’s Petition or the Sissons’ answer.

Nothing in the certified record on appeal demonstrates, or even suggests,

that the Stanley will was ever introduced into evidence by either of the

parties, including at oral argument or otherwise.      In a brief filed with the

trial court after oral argument, the Sissons still did not mention a will,

representing instead that at oral argument Lupold had relied almost

exclusively on Deer Park.      Brief in Opposition to Petition to Open and/or

Strike Judgment, 12/29/2010, at 2. On appeal, Lupold does not represent

that she was responsible for bringing the Stanley will to the trial court’s

attention, while the Sissons suggest that the trial court found it as a result of

its own efforts. See Sissons’ Brief at 16 (“The lower court determined the

search was insufficient only after locating the Will of [Lupold’s] father.”).

      Trial courts are not empowered to conduct their own investigations to

obtain evidence to decide disputed issues of fact.      See, e.g., Klemow v.

Time Inc., 352 A.2d 12, 14 n.3 (Pa. 1976); HYK Const. Co., Inc. v.

Smithfield Tp., 8 A.3d 1009, 1017 (Pa. Cmwlth. 2010) (“The trial court

improperly embarked on an extramural investigation….”). As our Supreme

Court made clear in Klemow, a trial court’s act of conducting its own fact-

finding investigation is “inconsistent with the established role of the trial

court in adversarial litigation.” Id. To this end, the Supreme Court recently

amended Canon 2 of the Code of Judicial Conduct to clarify that “[a] judge

shall not investigate facts in a matter independently, and shall consider only



                                     - 11 -
J-A10015-14


the evidence presented and any facts that may properly be judicially

noticed.” CODE OF JUDICIAL CONDUCT, Canon 2.9(C) (2014).

      In a footnote, the Majority contends that the trial court “had authority”

to take judicial notice of the Stanley will pursuant to Rule 201 of the

Pennsylvania Rules of Evidence.     Majority Opinion at 9-10 n.6.     I do not

agree. In the case before us, no party attempted to prove the fact of the

will or even mentioned it. As this Court has repeatedly emphasized, “Judicial

notice is intended to avoid the formal introduction of evidence in limited

circumstances where the fact sought to be proved is so well known that

evidence in support thereof is unnecessary….”     Floors, Inc. v. Altig, 963

A.2d 912, 918 (Pa. Super. 2009) (quoting Styers v. Bedford Grange Mut.

Inc. Co., 900 A.2d 895, 898-99 (Pa. Super. 2006)). The two cases cited in

the Majority’s footnote merely reiterate this fundamental point, as in both

instances we approved of a trial court’s decision to take judicial notice of

public records already at issue in the case but which had not been formally

introduced into the record.    Bykowski v. Chesed, Co., 625 A.2d 1256,

1257-58 & n.1 (Pa. Super. 1993) (stating that the trial court was permitted

to take judicial notice of a deed confirming ownership of real property, which

ownership had already been admitted in the pleadings); Pocono Summit

Realty, LLC v. Ahmad Amer. LLC., 52 A.3d 261, 249 (Pa. Super. 2012)

(stating that the trial court was permitted to take judicial notice of




                                    - 12 -
J-A10015-14


subdivision plans that the plaintiffs had referenced and discussed in their

complaint but had failed to attach to said pleading).

      More importantly, neither Bykowski nor Pocono authorize what

occurred here; namely, for a trial court to conduct its own factual

investigation and then take judicial notice of the “evidence” it found.     In

Chaplin v. Pelton, 423 A.2d 8 (Pa. Super. 1980), the trial judge decided a

real estate case based upon “his own examination of records in the

Record[er] of Deeds Office.” Id. at 8. The appellees had attached various

deeds to a trial brief, but did not introduce them into evidence.     The trial

judge, in deciding the case after a non-jury trial, indicated that he had

undertaken his own investigation and examination of the deeds, which he

insisted was appropriate because they were “matters of public record in the

Clearfield County Recorder of Deeds Office.”     Id.    This Court emphatically

disagreed, ruling that the independent examination was improper and could

not be justified based upon “judicial notice.”

            The fact that the deeds were recorded and hence
            public records gave them no special sanctity, being
            merely public notice of title. Proper exemplification
            of recorded deeds makes them available as legal
            evidence, and simply dispenses with the necessity of
            producing the original deeds in those cases where
            such deeds would be competent testimony. This
            does not obviate the necessity of producing and
            introducing into the record either the original or
            exemplified copies of such documents at trial.

            Nor can such action by the trial judge be
            sustained on the ground of judicial notice.



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J-A10015-14


            Aside from the fact that it concerned disputed
            questions of fact which are not within the domain of
            judicial notice, no request to take such notice was
            made nor was any authorization given to make such
            an examination.

            The trial judge’s action in examining the deed
            records not only deprived appellant of the
            opportunity to question, as well as dispute, the
            relevancy of any such recorded deeds, but made it
            impossible for this court to determine the basis for
            his factual findings.

Id. at 9 (emphasis added; footnotes omitted).7




7
   The Majority attempts to distinguish Chaplin on the grounds that there,
the trial judge relied upon the contents of the document uncovered by its
investigation, while instantly the trial court’s decision rested on the Sissons’
“failure to discover an easily discoverable document.” Majority Opinion at 10
n.7.

The Majority relies upon a false dichotomy, since in Chaplin we emphasized
that a trial court may not conduct its own factual investigation and then take
judicial notice of the results of its improper efforts. Chaplin, 423 A.2d at 9.
Our decision in Chaplin did not turn on the degree of difficulty the trial court
encountered in conducting its search. Similarly, the issue here is that the
trial court’s factual investigation was fundamentally inappropriate, regardless
of its purpose or complexity.

The Majority’s reference to the Stanley will as “easily discoverable” is itself
noteworthy, as the Majority offers no explanation why Lupold did not locate
the document herself. Under proper petition and rule practice pursuant to
Rule 206.7, it was Lupold’s obligation to locate the “easily discoverable”
will, reference it in her petition to open, and then come forward with proof of
its existence – which would have provided the trial court with a proper
evidentiary basis for a decision to open the judgment.


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      The Majority’s footnote further states that “[p]ursuant to our 8 request,

the Stanley will has been incorporated into the certified record.”     Majority

Opinion at 9-10 n.6. This attempt to supplement the certified record was, in

my view, a clear violation of our Rules of Appellate Procedure. This Court’s

ability to correct or modify a certified record is governed by Pa.R.A.P.

1926(b)(1), which provides as follows:

             Rule 1926. Correction or Modification of the Record

                               *     *        *

             (b) If anything material to a party is omitted from
             the record by error, breakdown in processes of the
             court, or accident or is misstated therein, the
             omission or misstatement may be corrected by the
             following means:

                   (1) by the trial court or the appellate
                   court upon application or on its own
                   initiative at any time; in the event of
                   correction or modification by the trial
                   court, that court shall direct that a
                   supplemental record be certified and
                   transmitted if necessary[.]

Pa.R.A.P. 1926(b)(1).       The Note to Pa.R.A.P. 1921 provides further

clarification:

             [I]f the appellate court determines that something in
             the original record or otherwise presented to the trial
             court is necessary to decide the case and is not
             included in the certified record, the appellate court
             may, upon notice to the parties, request it from the
             trial court sua sponte and supplement the certified


8
   The Authoring Judge of the Majority decision acted alone in making this
request.


                                     - 15 -
J-A10015-14


            record following receipt of the missing item. See
            Rule 1926 (correction or modification of the record).

Pa.R.A.P. 1921 Note.

      Pursuant to Pa.R.A.P. 1926(b)(1), this Court may correct or modify a

certified record to add anything in the original record or presented to the

trial court, but which was omitted as a result of error, breakdown in

processes of the court, or by accident or misstatement.        As discussed at

length hereinabove, however, the Stanley will meets none of these

requirements. The parties never presented the Stanley will to the trial court

or sought its introduction into evidence in connection with Lupold’s Petition.

To the contrary, nothing in the certified record suggests that the parties

were even aware of its existence at the time the trial court referenced it in

its order granting the Petition and opening the judgment.      The absence of

the Stanley will from the certified record transmitted to this panel on appeal

was not the result of any error, breakdown in processes, accident, or

misstatement. It was not included in the certified appellate record because

the parties never made the Stanley will a part of the certified appellate

record.   Nothing in our Rules of Appellate Procedure permits this Court to

“incorporate” a document into a certified record if the certified record

discloses no proper basis for the document’s incorporation.

      The Majority correctly notes that the current climate to find and secure

properties for gas exploration in Pennsylvania will likely result in an increase




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in the number of motions requesting service by publication. Maj. Op. at 13

n.11.     To this end, the Majority’s recognition of the need to “properly

scrutinize, document, and verify” such motions before permitting service by

publication is commendable. Id. This worthy goal cannot be accomplished,

however, by ignoring the Rules of Civil and Appellate Procedure and deciding

cases without regard for our standard of review. By rule, petitioners seeking

to open judgments have the burden to present evidence with respect to

disputed issues of fact and the trial court must decide those disputed issues

of fact based upon the evidence presented. Here, the Majority apparently

embraces an alternative procedure in which the burden of coming forward

with evidence is eliminated and the trial court may instead rely on unproven

allegations (or worse, its own extramural investigation, which this Court then

blesses by “supplementing” the certified record to incorporate its findings).

Because our standard of review requires it, I dissent.

        I also disagree with the learned Majority’s application of this Court’s

prior decision in Deer Park Lumber, Inc. v. Major, 559 A.2d 941 (Pa.

Super. 1989).     In my view, Deer Park has no application to the present

case, since there we ruled only that the trial court should have opened the

judgment because the appellee had failed to comply with Rule 430(a) when

moving for service by publication. Id. at 944-47. Rule 430(a) provides that

a party seeking permission to serve original process by publication must file

a motion “accompanied by an affidavit stating the nature and extent of the



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investigation which has been made to determine the whereabouts of the

defendant and the reasons why service cannot be made.” Pa.R.C.P. 430(a).

     In Deer Park, our review of the certified record on appeal disclosed

that the appellee had not complied with these requirements:

           In the case at bar, appellee did not file a motion
           requesting that service be accomplished by
           publication. Rather, appellee filed an affidavit along
           with its complaint stating that the whereabouts of
           appellants were unknown. This affidavit, drafted
           pursuant to former Rule 1064(c), failed to provide
           any indication of the types of procedures used to
           locate C.B. or Eunice Major or any of the appellants
           herein.     Nevertheless, the trial court, without
           inquiring into the investigation undertaken to
           establish the whereabouts of any potential
           defendants, ordered service by publication. This was
           clearly error. Service by publication is the exception,
           not the rule, and can only be ordered provided
           the requirements of Rule 430(a) have been
           met. In this case, the record reveals that they
           have not.

Deer Park, 559 A.2d at 944-45 (emphasis added; footnote omitted).

Leaving no doubt about the basis for our decision in Deer Park, we

concluded the opinion as follows:

           In light of the foregoing, what we hold today is that
           in order to effect service by publication pursuant to
           the provisions of Rule 430(b), the party must first
           file a motion, accompanied by an affidavit
           conforming to the requirements set forth in Rule
           430(a). Because the appellee and the trial court
           failed to follow this procedure, we conclude
           that a default judgment should not have been
           entered. Under the present circumstances, we find
           that appellants were not properly served with notice
           of this action, therefore, the trial court had not



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J-A10015-14


            obtained the requisite personal jurisdiction needed
            for entry of judgment. Accordingly, we conclude that
            the trial court’s action in refusing to open the default
            judgment and allow the appellants to file an answer
            to the complaint constituted an abuse of discretion.
            Under these circumstances, we have no alternative
            but to reverse their order and remand for
            proceedings consistent with this opinion.

Id. at 946-47 (emphasis added; citation and footnote omitted).

      In the present case, the Majority does not dispute that the Sissons

complied with the requirements of Rule 430(a), as they filed with the trial

court a “Motion for Order Authorizing and Directing Service by Publication

Pursuant to Pa.R.C.P. 430(a),” attaching thereto an affidavit “stating the

nature and extent of the investigation which has been made” to locate the

heirs of Joseph M. Stanley.     The Majority chooses to ignore this obvious

difference from Deer Park, instead relying upon a discussion in that case

regarding the shortcomings of the search conducted by the appellee (as

established at a subsequent evidentiary hearing, rather than based upon the

contents of the non-compliant affidavit).      This discussion in Deer Park

regarding the parameters of the search was mere non-decisional dicta,

however, as it was only undertaken in response to a counter argument

posed by the appellee in an effort to sustain the trial court’s ruling. Id. at

945 (“It is also argued by appellee that the investigation undertaken to

locate the appellants, while not actually placed in its affidavit, was

nevertheless sufficient under the rules to allow for service by publication.”).




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The outcome of this discussion was not in any respect essential to our

decision to reverse the trial court, since as the above-quoted passages from

Deer Park make clear, we reversed because the appellee failed to comply

with the requirements of Rule 430(a), and this outcome would have been

the same even if the appellee in that case had conducted an adequate

investigation designed to locate potential heirs.

      The doctrine of stare decisis does not apply to dicta unnecessary to the

outcome of the prior case. In re L.J., 79 A.3d 1073, 1081 (Pa. 2013). Our

decision in Deer Park does not require trial courts, in response to a petition

to open a judgment, to review the adequacy of a plaintiff’s investigation into

a defendant’s whereabouts before obtaining permission to serve by

publication. To the contrary, Deer Park, properly understood, provides that

the requisite personal jurisdiction needed for entry of judgment following

service by publication is conferred only after strict compliance with the

dictates of Rule 430(a). In the absence of any contention that the Sissons

failed to comply with Rule 430(a), I would reverse the trial court’s decision

to open the judgment in this case.

      Contrary to the Majority’s representations, its affirmance of the trial

court’s decision is not an exercise in stare decisis mandated by Deer Park,

but rather is an unwarranted expansion and misapplication of that case. In

so doing, the Majority creates a procedure never intended or contemplated

by Rule 430(a) and one that distorts the requirements for obtaining personal



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jurisdiction under that rule. As described hereinabove, under Rule 430(a), a

plaintiff in a real estate case must file a motion requesting service by

publication and attach an affidavit stating the nature and extent of the

investigation undertaken to locate potential heirs and assigns of the real

estate interests in question.   Pa.R.C.P. 430(a).   The trial court must then

determine, based upon the contents of the affidavit, whether the plaintiff has

conducted a good faith search and whether service by publication is a

method of service reasonably calculated to give the potential heirs and

assigns notice of the pending litigation and an opportunity to be heard.9

Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. Super. 1987), appeal denied,

542 A.2d 1370 (Pa. 1988). Where this procedure is properly followed, see

Deer Park, 559 A.2d at 944-47, and where the trial court grants the

motion, service by publication confers personal jurisdiction over the

potential heirs or assigns. Pa.R.C.P. 410;10 Pa.R.C.P. 430(b)(2) (“When


9
   Two other cases cited by the Majority are also inapposite to the present
circumstances. In both Fusco v. Hill Financial Sav. Ass’n, 683 A.2d 677
(Pa. Super. 1996), and PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219
(Pa. Super. 2007), the affidavits filed pursuant to Rule 430(a) identified a
specific heir whose location in the Commonwealth was known to the affiant.
Fusco, 683 A.2d at 680; PNC, 929 A.2d at 229.                Pursuant to Rule
430(b)(2), service by publication is not permitted if the identity of an heir or
assign is known. Pa.R.C.P. 430(b)(2).
10
     Rule 410 provides in relevant part:

             (a) In actions involving title to, interest in,
             possession of, or charges or liens upon real property,
             original process shall be served upon the defendant
             in the manner provided by Rule 400 et seq.


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service is made by publication upon the heirs and assigns of a named former

owner or party in interest, a court may permit publication against the heirs

or assigns generally if it is set forth in the complaint or in an affidavit that

they are unknown.”).

      According to the Majority, however, compliance with Rule 430(a) may

or may not confer personal jurisdiction. Although not described anywhere

in the Pennsylvania Rules of Civil Procedure, the Majority insists that a

potential heir or assign may, at any point in the future without limitation,

come forward and file a petition to open the judgment.       At that time, the

trial court must reconsider its prior decision authorizing service by

publication based upon any new information provided in the petition to open.

And if, so the argument goes, the trial court determines in hindsight that it

should not have granted the motion for service by publication, then it never

actually obtained personal jurisdiction over the petitioner and the judgment

must be opened.     In my view, our Rules of Civil Procedure establish the

methods by which personal jurisdiction may be obtained (in this case, by

compliance with Rule 430(a)), and include no contrary provisions for


                              *     *         *

            (c) If service is made pursuant to an order of court
            under Rule 430(a), the court shall direct one or more
            of the following methods of service:

                  (1) publication as provided by Rule 430(b),

Pa.R.C.P. 410(a), (c)(1).


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“hindsight withdrawal” of personal jurisdiction once conferred. In addition to

the absence of any authorization under our procedural rules for such an

approach, from a policy perspective, it is unwise and counterproductive, as it

erodes the reliability and finality of judgments entered after service by

publication, as such judgments are always and forever subject to collateral

attack by potential heirs or assigns.

      For all of these reasons, I respectfully dissent.




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