J-S28037-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

*Retired Senior Judge assigned to the Superior Court.

HAROLD EUGENE FRY,

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

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

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).
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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 firstclass 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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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