J-A04013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHELE MARIE MILLS

v.

LEE YOM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 947 MDA 2022

Appeal from the Order Entered June 14, 2022

In the Court of Common Pleas of Schuylkill County Civil Division at 

No(s): S-222-22

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY STABILE, J.: FILED: APRIL 11, 2023

Appellant, Lee Yom, appeals pro se from the June 14, 2022 order of 

partition pursuant to Pa.R.C.P. 1557.

1

 We affirm. 

Appellant and Appellee, Michele Marie Mills, were divorced by final 

decree of December 16, 2021. Appellee commenced this partition action with 

a complaint filed February 16, 2022 and served on Appellant on March 1, 

2022. On March 21, 2022, after Appellant failed to respond, Appellee served 

on Appellant a notice of intent to take a default judgment. On April 4, 2022, 

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1

 Rule 1557 permits entry of an order directing partition where, as here, the 

defending party defaults. Pa.R.C.P. 1557. The order before us is appealable 

pursuant to Pa.R.A.P. 311(a)(7); Zablocki v. Beining, 155 A.3d 1116, 1118 

n.4 (Pa. Super. 2017), appeal denied, 172 A.3d 1121 (Pa. 2017). A 

subsequent appeal is allowed from an order resolving the economic phase of 

the partition, such as an order distributing the proceeds of a sale. Id.; see 

also, Kapcsos v. Benshoff, 194 A.3d 139 (Pa. Super. 2018) (en banc). 
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after more than ten days had passed, default judgment was entered against 

Appellant. One day later, on April 5, 2022, Appellant filed an answer, new 

matter, and counterclaim, but did not petition to open the default judgment. 

Appellee filed preliminary objections2thereto on April 20, 2022. On June 14, 

2022, the trial court entered two orders; one sustaining Appellee’s preliminary 

objections and dismissing Appellant’s answer, new matter, and counterclaim 

with prejudice; and another directing partition based on Appellant’s default, 

as per Pa.R.C.P. 1557. 

Appellant filed this timely pro se appeal seemingly challenging both 

orders. In response to this Court’s August 15, 2022, rule to show cause, 

Appellant clarified that he wished to proceed with his appeal from the order 

directing partition and withdraw his appeal from the order sustaining 

Appellee’s preliminary objections to Appellant’s late-filed answer. Thus, the

only argument before us is that the trial court committed an error of law or 

abuse of discretion in entering an order directing partition.3 Appellant’s Pro 

Se Brief at 4. 

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2

 See Pa.R.C.P. 1028(a)(2), permitting a preliminary objection to a pleading 

that fails to conform to law or rule of court. 

3

 Partition is an equitable remedy. 

Trial courts have broad equitable powers to effectuate 

justice and we will find an abuse of discretion only if the trial court 

has misapplied the law or failed to follow proper legal procedures. 

The finder of fact is entitled to weigh the evidence presented and 

(Footnote Continued Next Page)
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Appellant does not assert any procedural irregularities leading up to the 

default judgment. The record reflects that the complaint contained a notice 

to plead, and that both the complaint and the notice of intent to take a default 

judgment were served on Appellant. The proper procedure for obtaining relief 

from a default judgment is set forth in Rule 237.3 of the Pennsylvania Rules 

of Civil Procedure. 

(2) If the petition is filed within ten days after the entry of 

a default judgment on the docket, the court shall open the 

judgment if one or more of the proposed preliminary objections 

has merit or the proposed answer states a meritorious defense.

Pa. R.C.P. No. 237.3(b)(2).

4

 Appellant, as noted above, filed his answer, new 

matter, and counterclaim on April 5, 2022, one day after entry of the default 

judgment. He did not style it as a petition to open under Rule 237.3 and, in 

any event, he does not appeal from the order sustaining Appellee’s preliminary 

objections. 

Thus, our only task is to discern whether Appellant, in his pro se brief, 

has articulated any grounds upon which he can obtain relief from the default 

judgment that led to the order directing partition under Rule 1557. As noted 

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access its credibility. The fact finder is free to believe all, part, or 

none of the evidence and the Superior Court will not disturb the 

credibility determinations of the court below.

Nicholson v. Johnston, 855 A.2d 97, 102 (Pa. Super. 2004), appeal 

denied, 868 A.2d 453 (Pa. 2005). 

4

 As per Rule 1551, partition actions are governed by the rules applicable to 

civil actions except as provided otherwise in the rules specific to partition 

actions. Pa.R.C.P. 1551. 
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above, Appellant did not proceed under Rule 237.3. Nonetheless, petitions to 

open judgment are permissible under our case law (see Pa.R.C.P. 237.3, 

Explanatory Comment 1994, Illustration 5): 

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;[5] (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. Moreover, this Court must determine 

whether there are equitable considerations that weigh in favor of 

opening the default judgment and allowing the defendant to 

defend the case on the merits. 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), appeal 

denied, 253 A.3d 680 (Pa. 2021), cert. denied, 142 S. Ct. 242 (2021). 

Appellant does not directly address the law governing petitions to open. 

He cites Rule 126, which promotes liberal construction of the rules to “secure 

the just, speedy and inexpensive determination of every action or proceeding 

to which they are applicable.” Pa.R.C.P. 126. Along with Rule 126, Appellant 

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5 This first prong is in place of the ten-day deadline of Rule 237.3. Thus, 

there is no deadline for filing a petition to open under Scalla and similar case 

law. The analysis of timeliness of any such petition rests within the trial court’s 

equitable discretion. 
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relies on Francisco v. Ford Motor Co., 580 A.2d 374 (Pa. Super. 1990), 

appeal denied, 592 A.2d 1301 (Pa. 1991), for the proposition that the 20-

day filing period under Rule 10266is merely permissive. Indeed, the 

Francisco Court stated that “the twenty day filing rule [Rule 1026] is said to 

be permissive rather than mandatory.” Id. at 376. Francisco is inapposite

however, because the plaintiffs did not seek entry of a default judgment and 

the appellant in that case was not seeking relief therefrom. Thus, there was 

no need for the defendants to establish a meritorious defense before the court 

accepted their answer. Appellant also relies on Paulish v. Bakaitis, 275 A.2d 

318 (Pa. 1971), for the proposition that “late pleadings may be filed if the 

opposite party is not prejudiced and justice requires.” Id. at 322 (quoting 

Fisher v. Hill, 81 A.2d 860 (Pa. 1951)). In both Paulish and Fisher, the 

latter of which Appellant also cites, the Pennsylvania Supreme Court 

addressed the trial courts’ discretion in accepting or rejecting late pleadings. 

Neither case involved a default judgment and subsequent petition to open. 

In summary, Appellant has not filed a petition to open the default 

judgment. Therefore, the trial court had no occasion to analyze a petition to 

open in the first instance. Further, Appellant has failed to articulate any 

grounds on which he is entitled to relief from the order on appeal. We are 

cognizant of Appellant’s plea for liberal construction of the procedural rules, 

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6

 Rule 1026(a) provides that all pleadings after the complaint shall be filed 

within 20 days of the previous pleading. Pa.R.C.P. 1026(a). 
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pursuant to Rule 126, but we also are cognizant that pro se litigants proceed 

at the risk that their lack of training and experience will prove costly. 

While this court is willing to liberally construe materials filed 

by a pro se litigant, we note that appellant is not entitled to any 

particular advantage because she lacks legal training. As our 

supreme court has explained, any layperson choosing to represent 

himself in a legal proceeding must, to some reasonable extent, 

assume the risk that his lack of expertise and legal training will 

prove his undoing.

Branch Banking & Tr. v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006)

(quoting Commonwealth v. Rivera, 685 A.2d 1011, 1013 (Pa. Super. 

1996)). Because Appellant failed to follow the procedure for obtaining relief 

from a default judgment, and because he has failed to articulate any valid 

grounds for appellate relief, we affirm the order directing partition. 

Appellant’s application for emergency relief filed on March 22, 2023 is 

denied as moot. Given our disposition of this appeal, the parties and the trial 

court are free to proceed with the partition action in accordance with this 

memorandum. 

Order affirmed. Application for relief denied. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2023