             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lake Wynonah Property                          :
Owners Association,                            :
                                               :
                                               :
                     v.                        :   No. 62 C.D. 2018
                                               :   Argued: December 11, 2018
Diane Frey                                     :
George Schenck                                 :
Robert J. Gordon                               :
                                               :
Appeal of: George Schenck                      :



BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE ELLEN CEISLER, Judge




OPINION NOT REPORTED


MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER                               FILED: January 4, 2019


       George Schenck (Schenck) appeals from an Order of the Court of Common
Pleas of Schuylkill County (common pleas) that denied his Petition to Open, Vacate
or in the Alternative Strike-Off Judgment (Petition). The Lake Wynonah Property
Owners Association (Association) obtained a judgment against Schenck, his mother,
Diane Frey (Frey), and her fiancé, Robert J. Gordon (Gordon) (defendants,
collectively),1 for $29,448.85, representing delinquent dues, assessments, and other


       1
         Gordon joined in Schenck’s Petition but did not appeal common pleas’ order denying the
Petition. Frey has not challenged the judgment against her.
fees and costs. Schenck asserts he is not the owner of the property located at 1005
Horseman Drive, Auburn, Pennsylvania (subject property) upon which the dues and
assessments were levied, and therefore he is not responsible for payment of such
costs. He asserts common pleas erred in finding his Petition was untimely filed,
finding there were no fatal defects on the face of the record, and failing to open the
judgment. Upon review of the record, we discern no errors and, accordingly, affirm.


I.     Background
       The Association commenced this action in December 2011 when it filed a
complaint against Frey, Gordon, and Schenck, seeking a total of $3,485.41 in unpaid
dues, assessments, and fees. The complaint alleged Frey, Gordon, and Schenck
owned the subject property. (Complaint ¶ 3, Reproduced Record (R.R.) at 17a.) The
sheriff served the complaint on all three defendants by serving Gordon at the subject
property on December 22, 2011. (R.R. at 6a.) On January 5, 2012, an answer with
new matter and counterclaim was filed on behalf of all three defendants. The answer
admitted ownership as alleged. (Answer ¶ 3, R.R. at 24a.) The answer was verified
by Gordon and Frey, but not Schenck. (R.R. at 32a-33a.) It was filed by Attorney
Michael J. Fiorillo.
       Over the course of the next two years, the parties engaged in extensive
discovery, including a number of depositions, in an effort to develop their respective
claims and counterclaims.2 In May 2013, the Association served Requests for
Admissions upon the defendants, wherein the defendants were asked whether they

       2
         This matter was consolidated with actions against other property owners. Those actions
are not at issue here. However, what started as a simple collection matter developed into much
more extensive litigation spanning more than six years. The extent of the litigation is evidenced
by the Supplemental Reproduced Record numbering more than 1400 pages. The original record
received from common pleas is even larger.


                                               2
owned the subject property and were members of the Association. (Requests for
Admissions ¶¶ 1, 3, 4, Supplemental Reproduced Record (S.R.R.) at 1324b.) The
defendants admitted same. (Response to Requests for Admissions ¶¶ 1, 3, 4, S.R.R.
at 1334b.) Frey and Gordon were deposed in August 2014. Frey and Gordon
testified at their depositions that they, along with Schenck, owned the subject
property. (R.R. at 58a, 60a.) A Stipulation of Facts and Evidence, in which the
parties stipulated that Frey, Gordon, and Schenck were owners, was also filed in
October 2014. (Stipulation ¶ 4, S.R.R. at 2b.)
      One month later, Attorney Fiorillo filed a motion seeking to vacate the
stipulation. Therein, he averred that he had mistakenly believed his clients agreed
with the stipulation but was subsequently informed they did not. (S.R.R. at 22b.)
He also filed a motion to withdraw as counsel. (R.R. at 35a.) Common pleas denied
the motion to vacate the stipulation but granted Attorney Fiorillo’s request to
withdraw as counsel for the defendants. (S.R.R. at 29b, 33b.)
      The Association moved for summary judgment based upon the stipulation.
(S.R.R. at 34b.) The defendants, now represented by new counsel, also filed a
motion for summary judgment. That motion also identified Frey, Gordon, and
Schenck as owners of the subject property.        (Defendants’ Cross-Motion for
Summary Judgment ¶ 1, S.R.R. at 693b.) Both motions were granted and denied in
part. (S.R.R. at 1240b.)
      A pretrial order was issued scheduling a pretrial conference. After the
defendants did not appear at the pretrial conference, the Association moved for
sanctions. (Original Record Item Nos. 61, 65.) Common pleas granted the motion,
dismissing the defendants’ counterclaim against the Association and entering
judgment in favor of the Association. (R.R. at 37a-38a.) A nonjury trial was



                                         3
scheduled on the issue of damages. Following the nonjury trial on January 7, 2016,
common pleas issued an order finding: (1) Frey, Gordon, and Schenck were owners
of the subject property; (2) as owners, they were required to pay dues, assessments,
and fees; (3) Frey, Gordon, and Schenck failed to do so; and (4) the total amount due
was $29,448.85. (Id. at 39a.) The Association filed a praecipe for entry of judgment,
which was mailed to Schenck at the subject property. Judgment was entered against
the defendants on February 22, 2016. (Id. at 2a.) Approximately a year later, the
Association started the process to execute on the judgment. In July 2017, while
trying to levy on Schenck’s property in Cumbola, Pennsylvania, the sheriff was
denied entry.
       One month later, Attorney Fiorillo filed the Petition seeking to open, vacate,
and/or strike the judgment. In the Petition, Schenck alleged Frey was the sole owner
of the subject property. (Petition ¶ 4, R.R. at 46a.) Schenck denied owning the
subject property at any time and averred that he never resided there.3 (Id. ¶¶ 7, 20,
22.)   He acknowledged that Attorney Fiorillo originally represented him but
subsequently withdrew, so Schenck proceeded pro se. (Id. ¶ 11.) Schenck also
admitted to receiving notice of the judgment, but claimed he “erroneously believed
that the matter had been resolved in [his] favor and [was] unaware that . . . the $0.00
award of Judgment was actually on a Counterclaim that had been filed.” (Id. ¶¶ 12-
13.) Schenck averred that “[t]he information that was provided to the Court
regarding the record owners of the property was false.” (Id. ¶ 18.) He further alleged
that he was unaware of the judgment until the summer of 2017 when the sheriff
attempted to levy on his home in Cumbola. (Id. ¶ 20.) He asked common pleas to
open, vacate, and/or strike the judgment.

       3
        “[A]t most,” Schenck averred, he “was on the ‘guest list’ for the Lake Wynonah
development.” (Petition ¶ 22.)


                                            4
        In response to the Petition, the Association continued to assert Schenck was
an owner of the subject property. In support, it pointed to the answer to the
complaint, responses to the Requests for Admissions, the deposition testimony of
Frey and Gordon, and the stipulation. In addition, it appended the first page of a
deed dated May 20, 2009, reflecting conveyance of the subject property from Frey
to Frey, Gordon, and Schenck. (S.R.R. at 1406b.) The deed was purportedly
provided to the Association by the defendants. (Response to Petition ¶¶ 5-6, R.R. at
54a.)
        On September 21, 2017, common pleas issued its Order denying the Petition.
Common pleas found there was no apparent defect on the face of the record that
warranted striking off the judgment. As for opening and vacating the judgment,
common pleas found the Petition was untimely filed, as the judgment had been
entered in January 2016 and the Petition was not filed until August 2017. Common
pleas stated Schenck did not meet the criteria for opening the judgment. Aside from
the Petition not being promptly filed, common pleas found “[t]here [wa]s no
reasonable excuse for its late filing as [Schenck was] given Notice of all Court
Rulings through [his] attorney and at the address [he] provided.” (Sept. 21, 2017
Order at 2.) Lastly, common pleas concluded Schenck did not have a meritorious
defense because there was ample evidence of his ownership. Not only was there
deposition testimony to that effect, but there were pleadings, in which Schenck
admitted ownership, and a 2009 deed reflecting same. Schenck now appeals from
that Order.4


        4
         Schenck originally appealed to the Superior Court but subsequently moved to transfer the
appeal to this Court. As the appeal involves the Association, a not-for-profit corporation, the
Superior Court granted Schenck’s motion and transferred the appeal to this Court by order dated
January 16, 2018.


                                               5
II.    Parties’ Arguments
       On appeal, Schenck raises three issues: (1) whether common pleas erred in
finding the Petition was not timely filed; (2) whether common pleas erred in finding
there were no fatal defects apparent on the face of the record; and (3) whether
common pleas erred in failing to open the judgment. With regard to the first issue,
Schenck argues his Petition was not untimely because it challenged a judgment that
was void because it was entered against a non-owner. Void judgments, he claims,
can be challenged at any time. Concerning the second issue, Schenck asserts there
are at least three fatal defects apparent on the face of the record: (1) his name is not
on the recorded deed; (2) he did not admit ownership as he did not verify any of the
pleadings and Frey and Gordon gave false testimony to that effect; and (3) the Rule
2375 notice was defective since it was served on Schenck at the subject property, at
which Schenck did not reside or own. Finally, related to the last issue, Schenck
claims he did satisfy the requirements to open the judgment. He asserts the Petition
was timely in that he filed it shortly after learning of the judgment in the summer of
2017 and, because he did not know about the judgment, there was a good excuse for
the delay. He also claims that he had a meritorious defense because he is not the
owner of the subject property and is, therefore, not responsible for the dues,
assessments, or fees.       Schenck argues common pleas erred in relying on the
unrecorded deed to support its finding of ownership.


       5
         A Rule 237 notice refers to the notice required under Rule 237 of the Pennsylvania Rules
of Civil Procedure, Pa.R.C.P. No. 237, which provides:

       No praecipe for entry of judgment upon . . . a decision of a judge following a trial
       without a jury shall be accepted by the prothonotary unless it includes a certificate
       that a copy of the praecipe has been mailed to each other party who has appeared
       in the action or to the attorney of record for each other party.


                                                6
       The Association counters that the judgment was appropriate and should be
upheld. It claims Schenck admitted ownership through his counsel of record in both
pleadings and discovery responses. Although the answer to the complaint was not
verified by Schenck, the Association claims it did not need to be because it was
verified by his mother, a co-defendant, and, as the grantor, she would have had
personal knowledge of the conveyance. In addition, the Association points out that
Frey and Gordon testified during their depositions that Schenck was a co-owner.
Ownership was also supported by the unrecorded deed, it argues. As for the validity
of service of the Rule 237 notice, the Association argues service was proper because
it was mailed to the same address where original process was effectuated.
Furthermore, Schenck admitted to receiving documents from the prothonotary’s
office in October 2015, and those notices were sent to the subject property, according
to the Association. Finally, the Association asserts that the Petition was not timely
because it was not filed for nearly a year and a half after judgment was entered. Even
if it is accepted that Schenck did not know of the judgment until the summer of 2017,
the Association argues the Petition still would have been untimely because it was
not filed until more than a month later. It asks the Court to affirm common pleas’
Order.


III.   Discussion
       A. Timeliness of Petition
       Schenck first argues common pleas erred in finding his Petition was not timely
filed. He asserts there is no time limit to challenging a void judgment such as this.
Schenck is correct that “[a] void judgment may be attacked at any time.” Barron v.
City of Philadelphia, 635 A.2d 219, 221 (Pa. Cmwlth. 1993). However, he must still



                                          7
show that the judgment is, in fact, void. Schenck asserts the judgment against him
is void because he is not the owner of the subject property and, consequently, is not
liable to the Association for the assessments, dues, or fees. He dismisses the 2009
deed purportedly conveying the subject property to him, Frey, and Gordon and,
instead, urges this Court to consider the recorded deed to Frey as the best evidence
of ownership.
         Based upon a review of the record, we agree that the 2009 deed, which was
appended to the Association’s response to Schenck’s Petition, is insufficient by itself
to establish ownership. Although purportedly provided to the Association by the
defendants, there is no evidence of this. Further, the document itself is incomplete,
consisting of just one page. It does not bear Frey’s signature. Nor is there any
evidence of delivery, which is necessary to render the deed legally operative. Fiore
v. Fiore, 174 A.2d 858, 859 (Pa. 1961). While “recording of the deed [i]s not
essential to its validity or the transition of the title,” id., more must be shown than
what the Association provided.
         However, neither the Association nor common pleas relied solely on the 2009
deed. Rather, there is ample evidence of record indicating that Schenck is a co-
owner of the subject property.       Frey and Gordon both testified during their
depositions that Schenck co-owned the subject property.           The answer to the
complaint and responses to the Requests for Admissions also admitted ownership.
The stipulation also set forth ownership. While Schenck argues all of this was in
error and asks this Court to ignore this evidence, he points to no authority for us to
do so.




                                          8
       In short, Schenck has not shown that the judgment is void, which would
enable him to challenge the judgment at any time.6

       B. Fatal Defects on the Face of the Record
       In his second issue, Schenck argues there are at least three fatal defects
apparent on the face of the record that warranted striking the judgment. The
Pennsylvania Supreme Court has explained that “[a] petition to strike does not
involve the discretion of the court. Instead, it operates as a demurrer to the record,”
which “admits all well-pleaded facts for the purpose of testing conclusions of law
drawn from those facts.” Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915,
918 (Pa. 1997) (citation omitted). “Because a petition to strike operates as a
demurrer, a court may only look at the facts of record at the time the judgment was
entered to decide if the record supports the judgment.” Id. at 919. Only if a petition
to strike has fatal defects that appear on the face of the record may it be granted. Id.
Schenck alleges the following fatal defects: (1) the recorded deed that shows Frey
is the owner; (2) the lack of verification to the answer to the complaint in which
ownership was admitted; and (3) the defective Rule 237 notice.
       As previously explained, the first alleged fatal defect, without more, does not
entitle Schenck to relief. Although the recorded deed reflects only Frey as owner of
the subject property, there was other competent evidence of record to support the
finding of ownership.
       As for the lack of a verification, that claim also lacks merit. Rule 1024 of the
Pennsylvania Rules of Civil Procedure, Pa.R.C.P. No. 1024, requires factual
averments to be verified. The Rule further provides “[t]he verification shall be made

       6
          Whether Schenck promptly filed his Petition to enable him to have the judgment opened
is a different issue, addressed in Part III.C, infra.


                                              9
by one or more of the parties filing the pleading . . . .” Pa.R.C.P. No. 1024(c)
(emphasis added). The answer here was verified by two of the three defendants –
Frey and Gordon. While ideally Schenck, too, would have verified the answer, the
lack of a verification is not fatal. Importantly, Frey, as the grantor, would have had
personal knowledge of ownership of the subject property. She verified that the
answer was true and correct to the best of her knowledge. Under the Rules, this was
sufficient.7
       Schenck’s argument regarding the defective Rule 237 notice is also meritless.
The Rule 237 notice was sent to the subject property, which is where original process
was effectuated. Upon Attorney Fiorillo’s withdrawal as counsel, there is no
evidence that Schenck notified common pleas of any change in his address.
Accordingly, the Association properly served the Rule 237 notice by mail at the
subject property.8
       Because Schenck did not show any fatal defects on the face of the record, we
conclude common pleas did not err in denying the Petition to the extent it sought to
strike the judgment.




       7
          To the extent Schenck implies Attorney Fiorillo acted without authority to represent him,
we also find this argument without merit. In his Petition, which was verified, Schenck admits that
Attorney Fiorillo originally represented him. (Petition ¶ 11, R.R. at 47a.) The answer, the
responses to the Requests for Admissions, and the stipulation, all of which identified Schenck as
an owner, were all filed during this representation.
        8
          It is noteworthy that after common pleas entered judgment on the counterclaim as a
sanction in the fall of 2015, a notice of the judgment was sent by the prothonotary to Schenck at
the address of record, the subject property, which Schenck admits to receiving. (Petition ¶ 12,
R.R. at 47a.)


                                               10
       C. Failure to Open Judgment
       This brings us to Schenck’s last issue: whether common pleas erred in
refusing to open the judgment. Unlike a petition to strike, “a petition to open a
judgment is an appeal to the equitable powers of the court.” Cintas Corp., 700 A.2d
at 919. “It is committed to the sound discretion of the hearing court and will not be
disturbed absent a manifest abuse of that discretion.” Id. To have a judgment
opened, the petitioner must show: (1) the petition to open judgment was timely filed,
(2) there is a reasonable explanation or excuse for the delay, and (3) there is a
meritorious defense. Id.; City of Philadelphia v. Williams, 553 A.2d 111, 112 (Pa.
Cmwlth. 1989). Common pleas found Schenck did not meet these requirements.
We agree.
       Generally, “[t]he timeliness of a petition to open judgment is measured from
the date that notice of the entry of the default judgment is received.” U.S. Bank N.A.
v. Mallory, 982 A.2d 986, 995 (Pa. Super. 2009) (quoting Castings Condo. Ass’n v.
Klien, 663 A.2d 220, 223 (Pa. Super. 1995)). While there is no “specific time frame
within which a petition to open a judgment must be filed to qualify as prompt,”
generally the period is less than one month. Sales and Mktg. Grp., Inc. v. Pa. Human
Relations Comm’n (Pa. Cmwlth., No. 198 C.D. 2017, filed Jan. 4, 2018), slip op. at
6-7 (surveying treatment of various time periods).9 While “relevant, the length of
the delay is not determinative. Rather, in making our assessment we must look to
the reasonableness of the explanation for the delay.” Williams, 553 A.2d at 112.
       Here, the Petition was filed more than a year and a half after judgment was
entered. Even if we were to accept Schenck’s argument that he was unaware of the

       9
          Sales and Marketing Group, Inc. is an unreported panel decision of this Court, which is
cited for its persuasive value in accordance with Section 414(a) of this Court’s Internal Operating
Procedures, 210 Pa. Code § 69.414(a).


                                               11
judgment until July 26, 2017, when the sheriff attempted to levy on his home, 36
days elapsed. In Williams, the petition to open judgment was likewise filed 36 days
after the judgment had been entered. There, we held the petition was not timely filed
because the petitioner did not offer any explanation as to why he waited 36 days to
file his petition. Williams, 553 A.2d at 112. Schenck similarly offers no explanation
as to why he waited 36 days after his encounter with the sheriff to file the Petition.
Therefore, we cannot conclude common pleas erred in finding that the Petition was
not promptly filed.
      Nor can we find any error in common pleas’ finding that Schenck offered no
reasonable excuse for the delay. The only excuse Schenck provided for the delay in
filing the Petition was that he was unaware that a judgment had been entered against
him. Assuming, arguendo, that this is true, this only serves as an explanation for
waiting until July 2017 to file the Petition. It has no impact on his inaction from
July 2017 when the sheriff went to his house to August 2017 when he finally filed
his Petition.   As stated above, Schenck offers no explanation for this delay.
Accordingly, common pleas did not err.
      Finally, Schenck cannot show that he has a meritorious defense to the action.
His entire defense is that he is not the owner or co-owner of the subject property. As
already discussed, this argument has been rejected given the evidence to the
contrary.
      Because Schenck has not shown that the Petition was promptly filed, that he
had reasonable excuse for the default, or that he had a meritorious defense, common
pleas did not err in refusing to open the judgment. See Cintas Corp., 700 A.2d at
918-19; Williams, 553 A.2d at 112.




                                         12
IV.   Conclusion
      Based upon the foregoing, we conclude common pleas did not err in denying
Schenck’s Petition. Accordingly, common pleas’ Order is affirmed.




                                       _____________________________________
                                       RENÉE COHN JUBELIRER, Judge




Judge Fizzano Cannon did not participate in the decision in this case.




                                         13
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Lake Wynonah Property                 :
Owners Association,                   :
                                      :
                                      :
                   v.                 :   No. 62 C.D. 2018
                                      :
Diane Frey                            :
George Schenck                        :
Robert J. Gordon                      :
                                      :
Appeal of: George Schenck             :

                                 ORDER


     NOW, January 4, 2019, the Order of the Court of Common Pleas of Schuylkill
County, in the above-captioned matter, is AFFIRMED.



                                   _____________________________________
                                   RENÉE COHN JUBELIRER, Judge
