J-A11006-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEA PRODUCTS, INC. IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

ERIN UCIECHOWSKI

Appellant No. 2084 EDA 2021

Appeal from the Order Entered August 30, 2021

In the Court of Common Pleas of Monroe County

Civil Division at No: 003016-CV-2018

BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED JUNE 23, 2022

Appellant, Erin Uciechowski, appeals from an order denying her petition 

to open or strike the default judgment entered against her in this mortgage 

foreclosure action. The trial court properly denied Appellant’s motion to strike

because there was no fatal defect on the face of the record. The trial court 

further acted within its discretion by denying Appellant’s petition to open due 

to Appellant’s 251⁄2-month delay in filing the petition. Accordingly, we affirm.

On April 27, 2018, Appellee DEA Products, Inc. filed a complaint in 

mortgage foreclosure against Appellant. The complaint alleged that Appellee 

loaned Appellant $150,000 secured by a mortgage on property at 192 Fish Hill 

Road, Tannersville, Pennsylvania that Appellant executed on July 24, 2015. 

The loan was evidenced by a note calling for regular monthly payments of 

interest only. Appellee attached the note and mortgage to the complaint. At 

the time Appellee filed the complaint, Appellant had failed to pay nine months 
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of interest payments, the option renewals called for in the note, additional

interest due during the option periods, late fees and the original $150,000 

principal. 

Appellant used the loan to purchase property from the Scranton Girl 

Scouts Council at 192 Fish Hill Road consisting of 30 acres and a former Girl 

Scouts Lodge. Appellee viewed the purchase and loan as commercial in 

nature, so prior to its foreclosure action, Appellee did not send the Act 6 or 

Act 911 notices required in residential loans.

Appellant’s address in the note and mortgage, which she provided to 

Appellee, was 8258 Natures Drive, Tobyhanna, Pennsylvania. The note 

expressly provided that this address was to be used for all notices required 

under the note. Appellant never advised Appellee to use a different address 

for notices such as 192 Fish Hill Road, the property subject to the mortgage. 

Appellant filed preliminary objections seeking dismissal of the complaint 

due to the lack of Act 6 and Act 91 notices. On September 7, 2018, the trial 

court overruled the preliminary objections, reasoning that the question 

whether this was a residential or commercial loan required discovery and trial. 

The court ordered Appellant to file an answer to the complaint within twenty 

days. Appellant failed to file an answer. Unbeknownst to Appellant, her 

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1 Act 6, the Loan Interest and Protection Law, is codified at 41 P.S. §§ 101—

605. Act 91, the Homeowner's Emergency Mortgage Assistance Act of 1983, 

is codified at 35 P.S. §§ 1680.401c—1680.412c. 
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attorney at this time, Edward Kaushas, Esquire, had been suspended from 

practicing law on November 30, 2018. 

On April 11, 2019, Appellee filed a praecipe for entry of default judgment 

against Appellant. The praecipe certified that Appellee sent a ten-day notice 

of intent to enter a default judgment to Appellant and her attorney more than 

ten days earlier. The praecipe included a copy of the ten-day notice dated 

December 21, 2018 that listed Appellant’s attorney's address. Also attached 

was a letter addressed to Appellant at 8258 Natures Drive, Tobyhanna, 

Pennsylvania, the address listed in the loan for all notices. The court entered 

a default judgment against Appellant in the amount of $203,818.09 plus per 

diem interest of $53.42 until the date of sale.

The prothonotary mailed notice of the judgment to Appellant at 8258 

Natures Drive, so Appellant learned of the default judgment approximately 

two weeks after its entry. N.T., 8/19/21, at 11 (Appellant’s testimony at 

hearing on petition to open). Appellant promptly contacted attomey Kaushas, 

who stated that he was unaware of the judgment and would move to open the 

judgment. Id. at 12-13. Kaushas never filed anything with the trial court.

On February 24, 2020, almost one year after entry of judgment, 

Appellee filed a praecipe for writ of execution. On August 25, 2020, Appellee 

filed a praecipe to reissue the writ of execution, and around that time, the 

sheriff posted a notice of sheriff’s sale at the property. Id. at 13-14. Appellant 

contacted Kaushas, who said he did not know why the sheriff’s sale notice was 

there. Id. at 14. 
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The sheriff sale was scheduled for February 25, 2021. Appellant learned 

of the sheriff sale date, and she obtained new counsel. On February 23, 2021, 

new counsel filed a petition to stay the sheriff sale, and the court granted a 

stay until April 29, 2021. On April 5, 2021, Appellant filed a request to 

participate in the residential mortgage foreclosure diversion program, which 

was granted, and the sheriff sale was continued to July 29, 2021. The case 

proceeded to mortgage conciliation conferences, but the conciliator 

recommended that the case proceed to foreclosure because the parties could 

not resolve their differences. 

On July 27, 2021, 251⁄2 months after entry of judgment, Appellant filed 

a petition to strike or open judgment. On August 19, 2021, the court held a 

hearing on Appellant’s motion. Appellant argued that she had moved into the 

structure located on the 192 Fish Hill Road property, and that she presently 

resided there. She stated that Appellee knew that she moved onto the 

property, that she never received notices of default at that address, and that 

she was never sent Act 91 or Act 6 notices, thus rendering the ten-day notice 

of default judgment and praecipe for default judgment defective. She further 

argued that the cause of the default judgment, and the delay in filing her 

petition to strike or open, was Kaushas’s suspension from the practice of law.

In an opinion and order dated August 30, 2021, the court denied 

Appellant’s petition to open or strike judgment. On the same date, the court 

reassessed judgment to $245,914.05. Appellant timely appealed to this 

Court, and both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant raises the following issues in this appeal:

1. Whether the default judgment entered against the Appellant 

violated Pennsylvania Rules of Civil Procedure and is therefore 

void?

2. Whether the trial court erred and abused its discretion by 

denying Appellant’s petition to open the judgment entered by 

default?

3. Did the trial court abuse its discretion or commit an error of law 

where it appears from a review of the record that there is no 

evidence to support the Court’s findings?

4. Did the trial court err in denying the Petition to Open the default 

judgment and failing to consider all three criteria for opening a 

default where numerous meritorious defenses to the allegations 

were contained in the Appellant’s proposed Answer with New 

Matter to the Appellee’s Complaint, where the Appellant provided 

a reasonable explanation for failing to file a timely responsive 

pleading, and when the Appellant, through new counsel, promptly

filed a petition to open default?

5. Where the Appellant’s Petition to open possessed a reasonable 

explanation or legitimate excuse for her default, did the trial court 

abuse its discretion in failing to give weight to the Appellant’s 

meritorious defenses to the Complaint?

6. Did the trial court err in denying the Petition to Open the default 

judgment by failing to consider the equities of the matter, the 

prejudice to the Appellant if the petition to open was denied and 

whether the Appellee would suffer any prejudice if the petition to 

open default was granted?

Appellant’s Brief at 5-6.
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In her first argument, Appellant asserts that the trial court erred in 

denying her petition to strike2the default judgment on the grounds that the 

ten-day notice of intent to enter default judgment (1) was not addressed to 

her and was sent to the wrong address, and (2) was only sent to attorney

Kaushas, who was suspended from practicing law at that time. These defects, 

Appellant claims, violated prerequisites for entering default judgment that are 

mandated under Pa.R.Civ.P. 237.1. We disagree. 

A petition to strike judgment

is a common law proceeding which operates as a demurrer to the 

record. A petition to strike a judgment may be granted only for a 

fatal defect or irregularity appearing on the face of the record. A 

petition to strike is not a chance to review the merits of the 

allegations of a complaint. Rather, a petition to strike is aimed at 

defects that affect the validity of the judgment and that entitle the 

petitioner, as a matter of law, to relief. A fatal defect on the face 

of the record denies the prothonotary the authority to enter 

judgment. When a prothonotary enters judgment without 

authority, that judgment is void ab initio....

Bank of New York Mellon v. Johnson, 121 A.3d 1056, 1060 (Pa. Super. 

2015). “The standard for ‘defects’ asks whether the procedures mandated by 

law for the taking of default judgments have been followed.” Continental 

Bank v. Rapp, 485 A.2d 480, 483 (Pa. Super. 1984). In its review of the

petition to strike, the court “is limited to the facts of record at the time the 

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2 Striking a default judgment and opening a default judgment are “distinct 

remedies and generally not interchangeable.” Green Acres Rehab. and 

Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1270 (Pa. Super. 2015). 

Accordingly, we discuss Appellant’s requests to strike and open judgment in 

separate sections of this memorandum. 
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judgment was entered in deciding whether the record supports the judgment.” 

Sharpe v. McQuiller, 206 A.3d 1179, 1184 n.4 (Pa. Super. 2019). 

An appeal from the denial of a petition to strike a default judgment 

“presents us with a question of law; consequently, our standard of review is 

de novo and our scope of review is plenary.” U.S. Bank Nat'l Ass'n for 

Pennsylvania Hous. Fin. Agency v. Watters, 163 A.3d 1019, 1028 n.9 (Pa. 

Super. 2017). 

The Rules of Civil Procedure require that the praecipe for entry of default 

judgment must include a certification that a written notice of intention to file 

the praecipe was mailed or delivered to the party against whom judgment is 

to be entered, and to her attorney of record, if any, at least ten days prior to 

the date of filing. Pa.R.C.P. 237.1 (a)(2). A copy of the notice shall be 

attached to the praecipe. Pa.R.C.P. 237.1 (a)(3). The form of the notice is 

set forth at Pa.R.C.P. 237.5. 

Here, Appellee’s praecipe for entry of judgment certified that on 

December 21, 2018, over three months before entry of judgment, Appellee 

served the notice of intent to file the praecipe for judgment on both Appellant 

and Kaushas. Attached to the praecipe was the notice of intent in the form 

prescribed by Rule 237.5, as well as letters enclosing the notice dated 

December 11, 2018 to Appellant and Kaushas. The letter to Appellant was 

addressed to 8258 Natures Drive, the address prescribed for notices in the 
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loan. Collectively, these documents establish Appellee’s compliance with the 

requisites for entering default judgment under Rule 237.1.

Appellant contends that the court should have stricken judgment 

because 8258 Natures Drive was not her correct mailing address. She claims 

that at the time Appellee sent the notice of intent to enter default judgment, 

Appellee knew that she moved into the 192 Fish Hill Road property. This 

argument fails because the loan expressly lists 8258 Natures Drive as the 

address where notices must be sent. As noted above, review of a petition to 

strike judgment is limited to the record as it existed at the time of judgment. 

Nothing in this record at the time of judgment indicates Appellee knew that 

Appellant resided at 192 Fish Hill Road or agreed to change the address for 

notices to 192 Fish Hill Road. 

Next, Appellant argues that Appellee provided insufficient notice 

because Kaushas was suspended at the time of the notice in December 2018. 

Rule 237.1, however, only requires notice to be sent to Appellant’s “attorney 

of record.” Pa.R.C.P. 237.1(a)(2)(ii). The record reflects that Kaushas was 

Appellant’s attorney of record at the time of the notice and that Appellee sent 

the notice to Kaushas. Therefore, notwithstanding Kaushas’s suspension, the 

notice to him complied with Rule 237.1.

Appellant also argues that notice was insufficient because it did not 

comply with Act 6 and Act 91, the acts pertaining to notices in residential 

foreclosures. A defective Act 91 notice does not deprive a court of subject 
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matter jurisdiction over a foreclosure action. Beneficial Consumer 

Discount Co. v. Vukman, 77 A.3d 517 (Pa. 2013). We cannot find any

decision concerning whether a deficient Act 6 notice affects the court’s 

jurisdiction. Nevertheless, since a defective Act 91 notice does not affect 

jurisdiction, it appears that a defective Act 6 notice does not affect jurisdiction,

either. 

In any event, nothing in the record at the time of entry of judgment 

indicates that Act 6 or Act 91 notices were necessary in this case. The trial 

court reasoned:

[Appellant] alleges she now resides at the Fish Hill Road property,

making it a residential property subject to a residential loan and 

Act 91 and Act 6 notices. However, simply residing at a property 

does not automatically make it “residential” for purposes of this 

loan or the Act 91 and Act 6 notices. For example, someone could 

reside in a commercial property or a property subject to a 

commercial loan without making it residential for purposes of Act 

91 and Act 6 notices. Here, the property was formerly a Girl Scout 

Camp consisting of 30 acres with a lodge located thereon prior to 

[Appellant]’s purchase. It could be that the loan was considered 

a commercial loan made for that purchase. It is a disputed issue 

as to the intention of the parties to be determined in discovery 

and/or trial. It cannot be determined on the basis of a complaint 

and testimony on a petition to strike judgment. Therefore, it is 

not grounds to strike the judgment . . .

Opinion In Support Of Order Denying Petition To Strike Or Open Judgment, 

8/30/21, at 9-10. We agree with this analysis. 

For these reasons, the trial court correctly denied Appellant’s petition to 

strike the judgment. 
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The remaining arguments in Appellant’s brief challenge the trial court’s 

decision to deny her petition to open judgment. We review the denial of a 

petition to open a default judgment under the following standard:

A petition to open a default judgment is addressed to the equitable 

powers of the court and the trial court has discretion to grant or 

deny such a petition. The party seeking to open the default 

judgment must establish three elements: (1) the petition to open 

or strike was promptly filed; (2) the default can be reasonably 

explained or excused; and (3) there is a meritorious defense to 

the underlying claim. The court’s refusal to open a default 

judgment will not be reversed on appeal unless the trial court 

abused its discretion or committed an error of law. An abuse of 

discretion is not merely an error in judgment; rather it occurs 

when the law is overridden or misapplied, or when the judgment 

exercised is manifestly unreasonable or the result of partiality, 

prejudice, bias or ill-will. Where the equities warrant opening a 

default judgment, this Court will not hesitate to find an abuse of 

discretion.

Scalla v. KWS, Inc., 240 A.3d 131, 135-36 (Pa. Super. 2020).

The trial court determined that Appellant had a reasonable excuse for 

failing to answer the complaint following the court’s denial of her preliminary 

objections: her attorney, Kaushas, failed to file any pleading and also failed 

to inform Appellant that he was suspended from practicing law. Opinion at 

11. The court also ruled that Appellant arguably had a meritorious defense: 

this was a residential loan, but Appellee failed to send Act 6 and Act 91 notices 

to her. Id. These rulings were proper exercises of the court’s discretion. 

With regard to the third element, timeliness of the petition, the court 

held that Appellant failed to demonstrate that her petition was timely filed. 

This, too, was a proper exercise of discretion. 
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The timeliness of a petition to open a judgment 

is measured from the date that notice of the entry of the default 

judgment is received. The law does not establish a specific time 

period within which a petition to open a judgment must be filed to 

qualify as [timely.] Instead, the court must consider the length 

of time between discovery of the entry of the default judgment 

and the reason for delay.

In cases where the appellate courts have found a “prompt” and 

timely filing of the petition to open a default judgment, the period 

of delay has normally been less than one month. See Duckson 

v. Wee Wheelers, Inc., [] 620 A.2d 1206 [] ([Pa. Super.] 1993) 

(one day is timely); Alba v. Urology Associates of Kingston, 

[] 598 A.2d 57, [] ([Pa. Super.] 1991) (fourteen days is timely); 

Fink v. General Accident Ins. Co., [] 594 A.2d 345, [] ([Pa. 

Super.] 1991) (period of five days is timely).

Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009). 

We have held that petitions filed more than one month after entry of judgment 

are untimely. See Allegheny Hydro No. 1 v. American Line Builders, 

Inc., 722 A.2d 189, 193-94 (Pa. Super. 1998) (41-day delay in filing petition 

to open was untimely); Hatgimisios v. Dave's N.E. Mint, Inc., 380 A.2d 

485, 485 (Pa. Super. 1977) (37-day delay not prompt).

Here, Appellant failed to file her petition to open for 251⁄2 months after 

entry of judgment. Appellee filed its praecipe for entry of default judgment 

on April 11, 2019. Appellant learned of the judgment in late April 2019 and 

spoke with attorney Kaushas, who said he would file to open the judgment. 

Kaushas did nothing, but Appellant took no action to protect her interests. In 

August 2020, over one year later, Appellant saw the sheriff sale notice posted. 

She again spoke with Kaushas, who replied that he did not know why a 
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sheriff’s sale was scheduled. Appellant did nothing until February 23, 2021, 

six months later, when she retained new counsel and had him file a motion to 

stay the sheriff’s sale. Following the motion for stay, Appellant allowed 

another five more months to go by before filing her petition to open on July 

27, 2021. 

The trial court determined that Appellant’s petition to open was 

untimely, reasoning:

While the initial delay [in filing the petition to open] due to Mr. 

Kaushas’ suspension and empty promises to [Appellant] is 

reasonable, she should have followed up to verify the matter was 

being handled. She could have called the Prothonotary’s office for 

information or come to the courthouse to check on the docket. 

However, she did not hear anything more from Mr. Kaushas or 

anyone else for over a year and she did nothing. After [Appellant] 

received notice of the sheriff sale, despite the promises of Mr. 

Kaushas dating back over a year and a serious red flag, 

[Appellant] still did nothing except call Mr. Kaushas[,] who had no 

answer for her. It would have been reasonable for [Appellant] to 

do something immediately after the August 2020 notification of a 

sheriff sale. It was clear at that time that Mr. Kaushas had failed 

[Appellant]. She still wasn’t making any payments on the loan. 

Yet [Appellant] did not take any further action to find out what 

was going on with the foreclosure. In fact, [Appellant] then waited 

another six months to engage her current counsel to do 

something. 

Opinion at 12. In our opinion, the decision to deny the petition to open was 

a proper exercise of the court’s discretion. Appellant’s delay in filing her 

petition to open was far longer than in Allegheny Hydro No. 1 and 

Hatgimisios, where we found delays in filing of 41 and 37 days, respectively, 

to be unacceptably lengthy. While the initial delay in filing arguably was 

attributable to Appellant’s counsel, she has not proffered a reasonable 
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explanation as to the remainder of the 251⁄2 month delay during which she 

was aware of foreclosure proceedings. For this reason, the trial court properly 

denied her petition to open.

We affirm the trial court’s order denying Appellant’s petition to strike or 

open judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/23/2022