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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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
-2-
J-S28037-17
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.
-3-
J-S28037-17
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
-4-
J-S28037-17
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
-5-
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
-6-