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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 DECEMBER 26, 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 On July 11, 2017, we remanded this case for the filing of


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). No party has raised this
issue.
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 [ ]
[a]n order refusing to open, vacate or strike off a judgment.’” Keller v.
Mey, 67 A.3d 1, 3 (Pa. Super. 2013).


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


a trial court opinion. That opinion was filed on November 28, 2017, and the

case is now ready for disposition. Upon review, we affirm.

       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. Fry claims in April 2010, 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 (Rice

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

an amended complaint against Appellants and Rice Drilling only on

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


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

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[s], 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 on March 19, 2015, the trial

court was “persuaded by [Fry’s] argument and issued an order denying

[Appellants’] preliminary objections and directing [Appellants] to file an

answer within twenty (20) days.” Trial Court Opinion, 11/28/2017, at 3

(unnumbered; unnecessary capitalization omitted).

      Appellants did not file an answer, but filed 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.




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

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

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.” 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.

      Appellants filed timely a notice of appeal to this Court.            Both

Appellants and the trial court have complied with Pa.R.A.P. 1925.

      On appeal, Appellants raise one issue for our review: “Did the trial

court err in denying [] Appellants’ petition to open default judgment without


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a hearing, as notice of the petition for default judgment was not properly

provided to [] Appellants prior to presentation to the court[?]” Appellants’

Brief at 8.

             We begin by stating our standard of review of a denial of a
      petition to open a default judgment:

              A petition to open a default judgment is an appeal to
              the equitable powers of the court. 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 error of law.”

      Dumoff v. Spencer, 754 A.2d 1280, 1282 (Pa. Super. 2000)
      (citation omitted). This Court may, after a review of the case,
      find an abuse of discretion if equity clearly favored opening the
      judgment. Id. (citation omitted). “An abuse of discretion is not a
      mere error of judgment, but if in reaching a conclusion, the law
      is overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill will, as shown by the evidence or the record, discretion
      is abused.” Id. (citation omitted).

            Generally speaking, a default judgment may be opened if
      the moving party has (1) promptly filed a petition to open the
      default judgment, (2) pleaded a meritorious defense to the
      allegations contained in the complaint, and (3) provided a
      reasonable excuse or explanation for failing to file a responsive
      pleading. Id. at 1281.

Seeger v. First Union Nat. Bank, 836 A.2d 163, 165 (Pa. Super. 2003).

      Here, Appellants argue that they were not served properly with the

motion for default judgment. Appellants’ Brief at 14-17.           However, as the

trial court points out, Appellants “did not set forth in their petition all the

criteria   necessary   to    open   default   judgment.”   Trial   Court   Opinion,

11/28/2017, at 4.           In their petition to open default judgment, Appellants

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J-S28037-17


contend only that they now have counsel and are “prepared to file an answer

to the amended complaint.” Petition to Open Default Judgment, 10/13/2016,

at ¶ 6 (unnecessary capitalization omitted). They have neither “pleaded a

meritorious defense to the allegations contained in the complaint,” nor

“provided a reasonable excuse or explanation for failing to file a responsive

pleading.”   Seeger, 836 A.2d at 165.     Accordingly, we conclude the trial

court did not err in denying the petition to open default judgment.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/26/2017




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