J-S28037-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

HAROLD EUGENE FRY,                       :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
     v.                                  :
                                         :
SUSAN L. ADAMS, THE ESTATE OF            :
GREGORY W. ADAMS, DECEASED, THE          :
ESTATE OF BESSIE S. ADAMS,               :
DECEASED, AND RICE DRILLING, LLC,        :
                                         :
APPEAL OF: SUSAN L. ADAMS, THE           :
ESTATE OF GREGORY W. ADAMS,              :
DECEASED, AND THE ESTATE OF              :
BESSIE ADAMS, DECEASED                   :   No. 1654 WDA 2016

                  Appeal from the Order October 19, 2016
              in the Court of Common Pleas of Greene County
                  Civil Division at No(s): No. 304 AD 2014

BEFORE:    OLSON, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.                         FILED JULY 11, 2017

     Susan L. Adams, the Estate of Gregory W. Adams, deceased, and the

Estate of Bessie Adams, deceased1 (collectively, Appellants) appeal from the

order entered on October 19, 2016, which denied their petition to open the

default judgment.2    We remand for proceedings consistent with this

memorandum.



1
 “It is settled law that a decedent’s estate cannot be a party to litigation
unless a personal representative exists.” Prevish v. Nw. Med. Ctr. Oil City
Campus, 692 A.2d 192, 200 (Pa. Super. 1997).
2
  “Although orders of court denying motions to strike or petitions to open
default judgments are interlocutory, Pennsylvania Rule of Appellate
Procedure 311 provides that ‘[a]n appeal may be taken as of right … from [ ]


*Retired Senior Judge assigned to the Superior Court.
J-S28037-17


       We provide the following background. On November 4, 2014, Harold

Eugene Fry filed an amended complaint against Appellants and Rice Drilling,

LLC.   According to Fry, he and Raymond Fitzgerald were longtime friends,

and Raymond Fitzgerald introduced Fry to Appellants for the purpose of

purchasing land.     In April 2010, Fry claims he entered into a sales

agreement with Appellants and paid $3,200 for a tract of land (subject

property),   which   included   the   oil,   gas,   and   mineral   rights   (2010

Transaction). On September 18, 2012, Appellants sold the subject property

to Raymond Fitzgerald and his wife, Dena Fitzgerald (the Fitzgeralds), while

retaining half of the interest in the oil, gas, and mineral rights (2012

Transaction).

       In April 2013, Fry learned from Raymond Fitzgerald that a deed had

never been recorded as part of the 2010 Transaction. In September 2013,

Appellants and the Fitzgeralds signed leases with Rice Drilling, LLC for the

oil, gas, and mineral rights to the subject property. That lease included a

bonus “in excess of [$100,000].” Amended Complaint, 11/4/2014, at § 19.

       On April 25, 2014, Fry filed a complaint against Appellants, Rice

Drilling, LLC, and the Fitzgeralds. After a set of preliminary objections, Fry

filed an amended complaint against Appellants and Rice Drilling, LLC only on

November 4, 2014.      In that complaint, Fry set forth claims for specific

performance, breach of contract, and quiet title. Appellants filed preliminary

[a]n order refusing to open, vacate or strike off a judgment.’” Keller v.
Mey, 67 A.3d 1, 3 (Pa. Super. 2013).
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objections to the amended complaint, and on March 9, 2015, the trial court

entered an order, which provided the following.

      That Raymond and Dana Fitzgerald are the bona fide purchasers
      of the subject property, and

      That [Fry] is unable to seek specific performance, general
      warranty deed, and transfer of oil and gas rights, and

      That [Fry] failed to join [a] necessary and indispensable party to
      this matter by removing the Fitzgeralds as defendant, and

      Therefore, we sustain [Appellants’] preliminary objections and
      dismiss all counts.

Order, 3/9/2015 (unnecessary capitalization omitted).

      Fry filed a motion for reconsideration, and for reasons not clear from

the record, the trial court entered an order stating that Appellants’

“preliminary objections are denied and further orders that [Appellants] file

an answer within twenty (20) days.” Order, 3/19/2015 (unnecessary

capitalization omitted).

      Appellants did not file an answer, but did file a motion to enforce a

settlement agreement on June 19, 2015. The record does not reveal what

occurred with respect to that motion, but the case was scheduled for several

pre-trial conferences, all of which were continued. On February 10, 2016,

Fry filed a notice of intention to file praecipe for entry of default judgment

for failure to file an answer.

      Additional pre-trial conferences were scheduled and continued, and on

Friday, September 23, 2016, Fry filed a petition for default judgment. The


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certificate of service shows that Fry sent the petition to Appellants via first-

class mail on Friday, September 23, 2016, and noticed its presentation to

the trial court for Monday, September 26, 2016.

      On September 29, 2016, the trial court granted the petition and

entered a default judgment against Appellants.         On October 13, 2016,

counsel entered an appearance on behalf of Appellants and filed a petition to

open default judgment. In the petition, Appellants argued that they received

the petition on September 27, 2016, and were therefore unable to attend

the argument. Petition to Open Default Judgment, 10/13/2016, at ¶¶ 4, 5.

Appellants averred they have counsel and are “prepared to file an answer to

the amended complaint.”3 Id. at ¶ 6.

      On October 17, 2016, Fry filed an answer to the petition. He stated

that Appellants failed to appear at a court-ordered pre-trial conference

scheduled for September 21, 2016, and after almost two years have still

never filed an answer to the complaint. On October 19, 2016, the trial court

entered an order denying Appellants’ petition to open the default judgment.




3
   “Generally speaking, a default judgment may be opened if the moving
party has (1) promptly filed a petition to open the default judgment, (2)
provided a reasonable excuse or explanation for failing to file a responsive
pleading, and (3) pleaded a meritorious defense to the allegations contained
in the complaint.” Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175–
76 (Pa. Super. 2009). While the petition to open the default judgment was
filed promptly, the petition neither averred an excuse for failing to file a
responsive pleading, nor did the petition set forth a meritorious defense to
the complaint. See Petition to Open Default Judgment, 10/13/2016.
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      Appellants filed timely a notice of appeal to this Court. The trial court

ordered Appellants to file a concise statement of errors complained of on

appeal, and Appellants complied and stated the following issue: “The [trial

c]ourt erred in denying [Appellants’] petition to open default judgment

without a hearing, as notice of the petition was not provided to [Appellants]

prior to presentation to the [trial c]ourt.” Concise Statement, 12/1/2016

(unnecessary capitalization omitted).      The trial court filed a statement

pursuant to Pa.R.A.P. 1925(a), which states the following, in its entirety:

“The [trial c]ourt adopts [Fry’s] answer to petition to open default judgment,

docketed October 17th, 2016 as its opinion pursuant to Rule 1925(a). The

Prothonotary is directed to transmit the record accordingly.” Trial Court

Opinion, 12/22/2016.

      On appeal, Appellants raise only the issue presented in their concise

statement, that the trial court erred in hearing the petition where Appellants

did not receive notice of the presentation of the petition prior to the

argument and in contravention of the Greene County Local Rules. Appellants’

Brief at 14-17. However, we will not reach that argument at this time, and

instead must remand this case to the trial court for its failure to undergo

independent judicial determination by relying only on the answer filed by Fry

as the basis for its Pa.R.A.P. 1925(a) opinion.

      Our Supreme Court considered a similar situation in Commonwealth

v. Williams, 732 A.2d 1167 (Pa. 1999).            In that capital case, Williams


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appealed to our Supreme Court from the denial of his Post Conviction Relief

Act petition. The Supreme Court held that a remand was warranted because

the PCRA court adopted the “Commonwealth’s brief to supply the reasons for

dismissal of [Williams’] petition.” Id. at 1176. The Supreme Court went on

to admonish the trial court as follows.

      We recognize the finite resources available to trial courts, and
      this Court has not prohibited the adoption of portions of a party’s
      arguments in support of a judicial disposition. Certainly Pa.R.A.P.
      No. 1925(a) provides a degree of flexibility in this regard,
      permitting trial judges, where appropriate, to specify places in
      the record where reasons may be found for their decisions. We
      cannot, however, in this post-conviction case involving a review
      of the propriety of a death sentence, condone the wholesale
      adoption by the post-conviction court of an advocate’s brief. …
      [T]he independent role of the judiciary cannot properly be
      served in this case absent some autonomous judicial expression
      of the reasons for dismissal.

Id.

      In Commonwealth v. Fulton, 876 A.2d 342 (Pa. 2002), our Supreme

Court clarified that Williams was not limited to capital cases only.

      A central concern in our decisions in this area has to do with the
      proper function of the trial courts and the necessity of
      articulating the court’s independent judicial analysis in support of
      dispositive orders so as to better focus appeals and better
      facilitate the appellate function. The need for such an
      independent judicial analysis does not depend upon the type of
      crime for which the defendant was convicted, as this function is
      no less defeated by the absence of independent judicial
      reasoning in a non-capital case than in a capital case. This is
      particularly so where, as here, the PCRA petition was summarily
      dismissed without a hearing. Accordingly, we hold that the rule
      in … Williams applies equally to non-capital criminal cases.

Id.


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      Finally, in A.V. v. S.T., 87 A.3d 818 (Pa. Super. 2014), this Court

expanded upon Williams and Fulton and applied them to a family law case.

This Court reasoned that “[t]he trial court’s decision to adopt Mother’s post-

trial brief, and the court’s failure to articulate an individual reasoning,

undercuts the proper function of trial courts and deprives this Court of an

independent judicial analysis, capable of appellate review.” Id. at 824.

      Based upon the rationale presented in the aforementioned cases, we

discern no basis for not applying it in this civil action such as this one. In

light of the apparent procedural missteps in this case, which we have

outlined supra, the trial court’s adoption of Fry’s answer to the petition to

open default judgment leaves us without “independent judicial analysis” in

trying to craft an appellate decision. Id.

      Thus, we remand this case to the trial court to prepare an opinion.

      Case remanded. Panel jurisdiction retained.




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