           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terraces at East Falls                        :
Condominium Association                       :
                                              :
              v.                              :
                                              :
East Falls Terraces, LLC,                     :   No. 2076 C.D. 2015
                   Appellant                  :   Submitted: December 12, 2016


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE JOSEPH M. COSGROVE, Judge
              HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COSGROVE                                 FILED: August 2, 2017

              East Falls Terraces, LLC (East Falls) appeals from an order of the
Court of Common Pleas of Philadelphia County (trial court) denying its Petition to
Open Default Judgment. Upon review, we affirm.
              East Falls owns several condominium units within the Terraces at East
Falls Condominium Association (the Association).              On January 28, 2014, the
Association filed a Statement of Claim in the Philadelphia Municipal Court
(Municipal Court) seeking judgment for unpaid condominium dues, assessments,
late fees, and acceleration of 2014 condominium fees against Unit 303, 3343
Conrad Street, Philadelphia, Pennsylvania (Unit 303), for a total amount of
$6,308.00.1 On March 7, 2014, the Association filed an Affidavit of Service on

       1
         Two companion cases were filed by the Association for Units 301 and 402, also located
at 3343 Conrad Street in Philadelphia. This Court disposed of an appeal filed by East Falls in
regards to Unit 301 in Terraces at East Falls Condominium Association v. East Falls Terraces,
LLC, (Pa. Cmwlth. No. 736 C.D. 2016, filed January 27, 2017), 2017 WL 382941.
East Falls. The Affidavit stated that on February 28, 2014, at 1:38 p.m., service
was made at 24 Luella Court, Suite 300, in Wayne, Pennsylvania 19087, on an
adult in charge of the residence who refused to give a name or relationship. This
adult was described as a thirty-five year old white female, approximately 5’8”, and
one hundred seventy pounds.
              On March 13, 2014, following a hearing, a default judgment was
entered for the Association in the amount of $6,308.00, plus $78.00 in costs. The
Association instituted garnishment proceedings on August 1, 2014. East Falls filed
a Petition to Open Default Judgment on April 14, 2015. This petition was denied
by the Municipal Court on April 18, 2015 on the basis the defense was without
merit.
              East Falls filed a Petition to Open Default Judgment with the trial
court on June 9, 2015. The petition averred East Falls was not provided notice or
properly served and the Affidavit of Service was fraudulent. The trial court denied
the petition on July 31, 2015. This appeal followed.2

                                       DISCUSSION
              The essential issue before this Court is whether the trial court erred in
denying the Petition to Open Default Judgment.
              To open a default judgment, the moving party must meet the
following test: (1) the petition to open default judgment must be promptly filed;
(2) the failure to appear or file a timely answer must be excused; and (3) the party


         2
         The decision to grant or deny a petition to open a default judgment is within the sound
discretion of the trial court, and we will not overturn that decision absent a manifest abuse of
discretion or an error of law. Alba v. Urology Associates of Kingston, 598 A.2d 57, 58 (Pa.
Super. 1991).

                                               2
seeking to open judgment must provide a meritorious defense. Cintas Corp. v.
Lee’s Cleaning Service, Inc., 700 A.2d 915, 919 (Pa. 1997). Where a party seeking
to open a judgment asserts that service was improper, a court must address this
issue first before considering any other factors. Id. If valid service has not been
made, the judgment should be opened because the court has no jurisdiction over
the defendant and is without power to enter a judgment against him or her. Id.
              East Falls argues it did not receive notice of the entry of the default
judgment until more than eight months later, in May 2015,3 when one of its tenants
whose rent was subject to garnishment forwarded a copy of the Notice of Entry of
Default Judgment. (East Falls’ Brief at 9-10.) In support of this argument, East
Falls references a hearing held on June 23, 2014 in which a Municipal Court judge
noted defects in service. Id. at 13. The documentary evidence cited by East Falls,
however, clearly relates to a different property and default judgment, an appeal of
which is not presently before this Court. (Reproduced Record (R.R.) at 154a-
157a.) East Falls further questions the Affidavit of Service because the description
of the individual who accepted service was too similar to those set forth in the
Affidavits of Service filed by the Association in its companion cases filed at the
same time as the present matter. Id. at 13.
              Service is governed by Pa.R.C.P. No. 402. The purpose of this rule is
to satisfy the due process requirement that a defendant be given adequate notice
that litigation has commenced. Cintas, 700 A.2d at 919-920. The Affidavit of
Service filed by the Association on March 7, 2014 documents personal service


       3
         Eight months from the March 13, 2014 date of judgment would place East Falls’ receipt
of notice in November of that same year.



                                              3
upon an unidentified adult female at 24 Luella Court, Suite 300, in Wayne, PA.4
(R.R. at 26a.) The affidavit was made subject to the criminal penalties set forth in
Section 4904 of the Crimes Code, 18 Pa.C.S. § 4904. Municipal Court and the
trial court accepted the affidavit as having satisfied the due process requirements of
Rule 402. East Falls has pleaded no facts which lead us to conclude this was an
abuse of discretion.
              Having concluded East Falls received notice of the pending litigation
with the Association, we now turn to whether it has met the test required to open a
default judgment.
              First, the petition must be filed promptly. Cintas, 700 A.2d at 919.
Timeliness is measured from the date notice is received from the entry of the
default judgment. Pappas v. Stefan, 304 A.2d 143 (Pa. 1973). The record shows
the default judgment was mailed to the Luella Court address on March 13, 2014.
(R.R. at 170a.) East Falls filed its petition more than a year later. Id. at 175a. We
have already concluded the trial court committed no abuse of discretion in
determining service was sufficient in this case. East Falls has provided no excuse
beyond lack of notice for its lengthy delay in filing. Consequently, we must
conclude no abuse of discretion was committed in the trial court’s determination
that East Falls failed to file its petition to open promptly.
               Next, in order to prevail, the petitioner’s failure to appear or file a
timely answer must be excused. Id. East Falls claims it did not appear or answer
because it did not receive notice. As we discern no abuse of discretion in the


       4
         In its brief, East Falls asserts service was made at Unit 303 in Philadelphia. This
assertion is clearly contradicted by the Affidavit included with the reproduced record filed by
East Falls.

                                              4
determination of the trial court that service was sufficient, we conclude East Falls
has not presented an adequate excuse for its absence in the underlying litigation.
             Finally, the party seeking to open judgment must provide a
meritorious defense. Id. The petition of East Falls contains no defense to or denial
of the allegation that it owed the Association outstanding condominium dues,
assessments, and late fees. As such, and notwithstanding any other impediment,
East Falls has failed to meet the third prong of the test, and thus cannot prevail
herein.
             For these reasons, we affirm.




                                       ___________________________
                                       JOSEPH M. COSGROVE, Judge




                                          5
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Terraces at East Falls                 :
Condominium Association                :
                                       :
            v.                         :
                                       :
East Falls Terraces, LLC,              :   No. 2076 C.D. 2015
                   Appellant           :



                                  ORDER


            AND NOW, this 2nd day of August, 2017, the July 31, 2015 order of
the Court of Common Pleas of Philadelphia County is affirmed.




                                    ___________________________
                                    JOSEPH M. COSGROVE, Judge
