Federal National Mortgage v. Kaiser, T. ( 2016 )

J-A28030-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FEDERAL NATIONAL MORTGAGE IN THE SUPERIOR COURT OF
ASSOCIATION PENNSYLVANIA
Appellee
v.
THOMAS KAISER AND TIMOTHY KAISER
Appellants No. 3368 EDA 2014
Appeal from the Order Entered October 6, 2014
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2013-04661-RC
BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.
MEMORANDUM BY PANELLA, J. FILED JANUARY 12, 2016
Appellants, Thomas and Timothy Kaiser, appeal from the order entered
on October 6, 2014, by the Honorable Edward Griffith, Court of Common
Pleas of Chester County, which denied Appellants’ petition to open default
judgment. We affirm.
Plaintiff, Federal National Mortgage Association (“Fannie Mae”),
commenced the underlying action in ejectment against Appellants after
becoming the record owner of Appellants’ former property through a sheriff’s
sale. The trial court denied Appellants’ preliminary objections. Fannie Mae
subsequently filed a motion for summary judgment. On February 11, 2014,
the trial court entered an order granting Fannie Mae’s motion for summary
judgment for Appellants’ failure to respond. Appellants did not file an appeal
from the order within thirty days; thus, the order became final on March 13,
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2014. See Pa.R.A.P. 903(a); Simpson v. Allstate Ins. Co., 504 A.2d 335,
338 (Pa. Super. 2006) (en banc).
On July 30, 2014, 169 days after entry of the summary judgment
order, Appellants filed an emergency petition to stay execution and a
petition to open default judgment. In their petition to open, Appellants
averred, “[a] default judgment for failure to file was entered on February 10,
2014, for Defendant’s failure to plead a response to the Plaintiff’s Motion for
Summary Judgment.” Defendants’ Petition to Open Default Judgment,
7/30/14, at ¶ 1. The trial court subsequently entered an order staying all
proceedings. Following a hearing, the trial court lifted the stay and entered
an order denying Appellants’ petition to open. This timely appeal followed.
On appeal, Appellants contend that the trial court erred in denying
their petition to open. Specifically, Appellants claim that Fannie Mae did not
have standing to bring the underlying ejectment action; thus, the trial court
should have opened judgment so that the issue could be re-litigated.
Upon receipt of Appellants’ notice of appeal, this Court noted that, on
its face, the appeal appeared to be untimely filed under Pa.R.A.P. 903(a),
which requires that a notice of appeal “be filed within 30 days after the entry
of the order from which the appeal is taken.”
Accordingly, this Court entered a rule to show cause order, which
stated as follows.
This appeal has been taken from the order entered on October 6,
2014 denying the defendants’ motion to open the judgment. In
the instant case, the final, appealable order may be the order
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entered on February 10, 2014 granting summary [judgment].
See Pa.R.A.P. 341(b)(1) (final order is one that disposed of all
claims and parties). Once a final order or judgment is entered,
an appeal must be filed within 30 days and it is not subject to
collateral attack by virtue of a petition to open or strike.
Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d 1222 (Pa.
Super. 2002). The notice of appeal was filed on November 5,
2014. Therefore, this appeal may be untimely because the
notice of appeal was not filed within thirty days of February 10,
2014. See Pa.R.A.P. 903(a) (notice of appeal shall be filed
within 30 days after the entry of the order from which the appeal
is taken); Pa.R.A.P. 108(b) (date of entry of a civil order is the
day on which the clerk makes a notation on the docket that
notice of the entry of the order has been sent pursuant to
Pa.R.Civ.P. 236(b)).
The appellants are directed to show cause as to why this appeal
should not be quashed. This response is to be filed with this
court within ten days with service upon all interested counsel.
Failure to respond to this order within the time specified and as
directed may result in quash of this appeal without further
notice.
Rule to Show Cause Order, 1/22/15.
Appellants filed a response to the order to show cause. Therein, they
argued that “[t]he judgment rendered against [them] is final, however,
‘extraordinary cause’ permits said judgment to be attacked collaterally.”
Response to Order to Show Cause, 2/2/15, at ¶ 2. Specifically, Appellants
argued that the extraordinary cause present in this case is that their former
attorney failed to file a response to Fannie Mae’s motion for summary
judgment, thereby unjustifiably prejudicing them. See id., at ¶ 6.
Initially, we note that Appellants’ contention that a “default judgment”
was entered against them is incorrect. See Pa.R.C.P. 237.1(a)(1). Rather,
summary judgment was entered due to Appellants’ failure to respond to
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Fannie Mae’s summary judgment motion. See Pa.R.C.P. 1035.3. With that
misunderstanding cleared up, we proceed to the merits.
A petition to open is an appeal to the court’s equitable powers. See
Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa. Super. 2004). A court’s
authority to open judgments entered in contested matters is more
circumscribed than its ability to open judgments entered by default or
confession. See Simpson, 504 A.2d at 337. In this case, Appellants did
not file an appeal of the summary judgment order. Rather, they collaterally
attacked the summary judgment order once it was final by filing a petition to
open judgment.
“Generally, judgments regularly entered in adverse proceedings cannot
be opened or vacated after they have become final, unless there has been
fraud or some other circumstance so grave or compelling as to constitute
‘extraordinary cause’ justifying intervention by the court.” Id. (citation and
internal quotation marks omitted). “Extraordinary cause ‘is generally an
oversight or action on the part of the court or the judicial process which
operates to deny the losing party knowledge of the entry of final judgment
so that the commencement of the running of the appeal time is not known to
the losing party.’” Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d
1222, 1225 n.4 (Pa. Super. 2002) (citation omitted). We review a refusal to
open a judgment for an abuse of discretion. See Graziani, 856 A.2d at
1223 (citation omitted).
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Appellants needed to establish fraud or extraordinary cause as a
reason to compel the trial court to open the judgment. Appellants do not
even allege fraud; however, they do allege extraordinary cause.
Specifically, Appellants claim that extraordinary cause exists because their
former attorney failed to file a response to Fannie Mae’s motion for summary
judgment. This fact does not constitute extraordinary cause because it does
not pertain to an oversight or action on the part of the court or the judicial
process. Thus, Appellants cannot establish extraordinary cause.
In sum, the trial court did not commit an abuse of discretion in
refusing to open the judgment. Accordingly, we affirm the order denying
Appellants’ petition to open.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2016
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