IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terraces at East Falls :

Condominium Association :

:

v. :

:

East Falls Terraces, LLC, : No. 2076 C.D. 2015

Appellant : Subm itt ed: 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 o rder of the

Court of Common Pleas of Philadelphia County (trial court) denying its Petition to

Open Default Judgment. Up on review, we affirm

.

East Falls owns several condominium units within the Ter races at East

Falls Condominium Association (the Association). On January 28, 2014, the

Assoc iation f

iled a Statement of Claim in the Philadelphia Municipal Court

(Municipal Court) seeking judgment for u npaid 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 Servi ce on

1 Two companion cases were filed by the Association for U nits 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 Associati on v. East Falls Terraces,

LLC, (Pa. Cmwlth. No. 736 C.D. 2016, filed Ja nuary 27, 2017), 2017 WL 382941

.2

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 f emale, 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 Judgm e nt 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 th e Petition to Open Default Judg ment

.

To open a default judgment, the moving party must meet the

following test: (1) the p etition to open default judgment must be promptl y 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).3

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

t o 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 defendan t 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 garnis hment 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 o f 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 Asso ciation on March 7, 2014 documents personal service

3 Eight months from the March 1 3, 2014 date of judgment would place East Falls’ receipt

of notice in November of that same year.4

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 P a.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 plead ed no facts which lead us to conclude this was an

abuse of discretion.

Having concluded East Fa lls 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 tha n 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. Consequ ently, 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.5

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 outstan ding 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, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Terraces at East Falls :

Condominium Association :

:

v. :

:

East Falls Terraces, LLC, : No. 2076 C.D. 2015

Appellant :

O R D E R

AND NOW, this 2 nd day of August

, 201 7

, the July 31, 2015 order of

the Court of Common Pleas of Philadelphia County is affirmed.

___________________________ JOSEPH M. COSGROVE, Judge