J-S45001-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEONARD J. DOBSON AND THERESA 

WEYMAN

v.

SHAMOKIN COMMONS, LLC AND 

MADISON TITLE AGENCY, LLC

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 277 MDA 2018

Appeal from the Order Entered January 18, 2018

in the Court of Common Pleas of Northumberland County

Civil Division at No(s): CV-2016-2174

BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 20, 2018

Shamokin Commons, LLC (“Shamokin”), appeals from the Order 

denying its Petition to Strike the Default Judgment entered against it and in 

favor of Leonard J. Dobson (“Dobson”) and Theresa Weyman (“Weyman”)

(collectively, “Appellees”).

1

 We affirm.

The trial court set forth the relevant factual and procedural history as 

follows:

Shamokin ..., an unregistered foreign limited liability 

company (LLC) that has a registered office address in Mineola, 

[New York], had placed for sale a vacant shopping plaza and 

parking lot that it owned. On October 19, 2016, ... Dobson, 

through the use of [] Weyman as his agent, successfully bid on an 

online auction for such real property ... located in Coal [Township], 

Northumberland County, [Pennsylvania]. His total bid was in the 

amount of $126,000.00. Dobson deposited $15,000[.00] with 

Madison ..., the escrow agent for the transaction. Prior to [the] 

settlement date (November 16, 2016)[,] Dobson paid the 

remaining balance [] to Madison. But Madison returned the 

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1 Madison Title Agency, LLC (“Madison”), is not a party to the instant appeal.
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remaining balance to Dobson, and Dobson was told there was a 

title defect precluding the settlement from occurring. Dobson 

does not believe that there was a title defect in the property. 

Madison still held the $15,000.00 deposit.

On December 19, 2016, [Shamokin] was served a 

[P]raecipe for writ of summons of a civil action. Pa.R.C.P. [] 403, 

404(2). On January 12, 2017, [Appellees] filed a [C]omplaint with 

the Prothonotary’s office[, asserting a breach of contract claim]. 

[Shamokin] failed to reply within twenty days of service of the 

[C]omplaint[, which] contained a [N]otice to defend. On February 

2, 2017, [Appellees] mailed a written Notice of intention to file a 

Praecipe for Judgment to [Shamokin]. [Shamokin] was warned 

that it had ten days or else a judgment would be entered against 

it without a hearing. On February 14, 2017, [Appellees] filed a 

[Praecipe] for default judgment in the Prothonotary’s office for 

judgment in favor of [Appellees] and against [Shamokin]. The 

Prothonotary entered the default [J]udgment against [Shamokin] 

on the same date.

On February 14, 2017, [Appellees filed a Motion to Assess 

Damages Upon Entry of Judgment of Default,] request[ing] an 

order demanding specific performance, specifically to perform the 

contract and to deliver the real property to Dobson. [Appellees] 

also demanded an accounting of rents and profits received by or 

owed to [Shamokin], upon the subject property. [Appellees] also 

sought lost profits and opportunity costs (i.e. leasing, marketing, 

redevelopment) in a currently unliquidated amount, attorney fees, 

costs of suit, and any other and further relief the [c]ourt would 

consider as necessary and just. On February 21, 2017, a hearing 

thereon was scheduled for April 25, 2017. At this hearing, while 

[Appellees’] counsel was present, there was no one in attendance 

to represent [Shamokin]. [Appellees’] counsel argued that 

[Shamokin] was still receiving rental income from the property. 

The [c]ourt held that, in order for the $15,000.00 deposit to be 

resolved, Madison would need to be named as a defendant in the 

suit. [Appellees’] [M]otion was withdrawn without prejudice.

On May 1, 2017, [the trial c]ourt held [Appellees’] Motion to 

Assess Damages in abeyance until Madison was joined and the 

issue of [Appellees’] $15,000.00 deposit was resolved. Madison 

was joined as a defendant on May 30, 2017. Madison has 

deposited the $15,000.00 escrow deposit with the Prothonotary, 

pursuant to [the c]ourt’s order.
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On August 4, 2017, [Appellees’] attorney filed a Motion to 

Reinstate [Appellees’] February 14, 2017 Motion to Assess 

Damages .... [Appellees] amended [their] request to include 

additional attorney fees for $1,587.50 and $825.00, and $14.92 

in postage expenses related to this litigation. A hearing on the 

Motion to Assess Damages was scheduled for September 14, 

2017.

[Shamokin] filed a Petition to Strike Default Judgment on 

September 11, 2017. [Shamokin] avers that it sought the 

assistance of Pennsylvania counsel, who failed to file an Answer 

and act in the defense of [Shamokin]. [Shamokin] claims it has 

a meritorious defense, in that [Appellees] violated Paragraph 

13(b), No Assignments Clause, of the real estate contract.

Trial Court Opinion, 4/2/18, at 1-3. Appellees filed a Response to Shamokin’s 

Petition to Strike. The trial court denied Shamokin’s Petition to Strike the 

Default Judgment on January 18, 2018. Shamokin filed a timely Notice of 

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters 

complained of on appeal.

On appeal, Shamokin raises the following issue for our review: “Did the 

[t]rial [c]ourt err or abuse its discretion in failing to strike or open the default 

[J]udgment entered against Shamokin [] in this equitable action seeking 

specific performance to enforce an agreement of sale?” Brief for Appellant at 

4.

We observe the following standards of review of orders concerning the 

opening or striking of default judgments:

A petition to strike a default judgment and a petition to open a 

default judgment are two distinct remedies, which are generally 

not interchangeable. A petition to strike a default judgment 

operates as demurrer to the record. As such it is not a matter 

calling for the exercise of discretion. A petition to strike a default 
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judgment may be granted only where a fatal defect in the 

judgment appears on the face of the record. A judgment cannot 

be stricken when the record is self-sustaining.

The standard of review for challenges to a decision concerning the 

opening of a default judgment is well settled. 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.

Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa. Super. 2004) (internal 

citations and brackets omitted).

Shamokin acknowledges that although it captioned its filing a Petition to 

Strike the Default Judgment, it had actually moved to open the default

Judgment.2 Brief for Appellant at 10. Shamokin claims that the trial court 

erred by denying its Petition to Strike “based simply upon the time passing 

between the [J]udgment and the [Petition,] where no evidentiary record was 

made, by depositions or hearing, which would have allowed the court to weigh 

the equities in this matter.” Id. at 12. Shamokin alleges that it can establish 

a meritorious defense to Appellees’ breach of contract claim, i.e., that 

Appellees also breached the contract. Id. Specifically, Shamokin contends 

that Appellees breached Section 13(B) (“No Assignment or Recording”), 

because Weyman assigned her rights and interests to Dobson, without first 

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2 “As a general rule, we may not address any issues which an appellant has 

failed to raise in the trial court.” Mother’s Rest. Inc. v. Krystkiewicz, 861 

A.2d 327, 337 (Pa. Super. 2004) (citing Pa.R.A.P. 302(a)). However, we note 

that in its Petition to Strike, Shamokin requested, in part, that the trial court 

open the default Judgment. 
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obtaining Shamokin’s consent. Id. Shamokin also explains its delay in filing 

the Petition to Strike by asserting that its prior counsel had attempted to 

negotiate with Appellees, and that Shamokin did not retain its current counsel 

and file the Petition until the conclusion of the unsuccessful negotiations. Id.

at 13.

In its Opinion, the trial court first considered Shamokin’s Petition as a 

petition to strike, and concluded that there were “no missteps in the taking of 

[the] default [J]udgment.” See Trial Court Opinion, 4/2/18, at 4. Then, 

recognizing that Shamokin’s Petition contained allegations seeking to open the 

default Judgment, the trial court set forth the relevant law concerning the 

opening of a default judgment, and addressed Shamokin’s claim as follows:

Although not labeled as such, [Shamokin’s Petition] 

contained allegations for the [c]ourt to open the [J]udgment upon 

equitable grounds. The factors that [a c]ourt must consider before 

a default judgment may be opened are: (1) the petition to open 

the default judgment must be promptly filed; (2) the failure to 

enter an appearance or file a timely answer must be reasonably 

excusable; and (3) the party seeking to open the judgment must 

exhibit a meritorious defense. To succeed, the petitioner must 

meet all three requirements. U.S. Bank N.A. v. Mallory, 982 

A.2d 986, 994-95 (Pa. Super. 2009). In other words, if the 

petitioner fails to meet even one requirement for opening 

judgment, the court can deny relief without even considering 

arguments made without regard to the two other requirements. 

Duckson v. Wee Wheelers, Inc., 620 A.2d 1206, 1209 (Pa. 

Super. 1993). 

In Pappas v. Stefan, 304 A.2d 143, 145 (Pa. 1973), the 

Supreme Court dismissed the [d]efendant’s assertion that it 

“acted promptly” because the appellee’s attorney “waited 

approximately fifty-five days from the date of notice to file his 

petition to open.” Id. at 146. In the instant matter, default 

judgment was entered against Shamokin [] on February 14, 2017. 
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Two-hundred ten (210) days later, [Shamokin] filed a Petition to 

Strike Judgment on September 11, 2017. This span of time is 

nearly four times as long as the span in Pappas.

[FN]

[FN] Because the Shamokin ... [Petition] was not promptly filed, this 

[c]ourt need not address the other two prongs of the test. If the 

other prongs were addressed, there never was a legitimate excuse 

for not properly securing counsel as a[n] LLC to protect its 

interests. See Kelly v. Siuma, 34 A.3d 86[, 94] (Pa. Super. 

2011) (a corporate defendant should have in place the means to 

monitor its legal claims). Finally, it was never fully articulated 

how the assignment, if any, would have altered [Appellees’] cause 

of action, so far as a meritorious defense here.

Trial Court Opinion, 4/2/18, at 4-5 (one footnote omitted). We agree with the 

trial court’s determination that there is no fatal defect in the default Judgment 

appearing on the face of the record, and we discern no abuse of the trial 

court’s discretion in determining that Shamokin did not promptly file its 

Petition to Strike the Default Judgment. Accordingly, we affirm the trial court’s 

Order denying Shamokin’s Petition to Strike.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2018