County of Allegheny v. McCullough

659 A.2d 40, 1995 Pa. Commw. LEXIS 220
CourtCommonwealth Court of Pennsylvania
DecidedMay 11, 1995
StatusPublished
Cited by4 cases

This text of 659 A.2d 40 (County of Allegheny v. McCullough) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
County of Allegheny v. McCullough, 659 A.2d 40, 1995 Pa. Commw. LEXIS 220 (Pa. Ct. App. 1995).

Opinion

NEWMAN, Judge.

Norma Jean McCullough, individually, and E. Timothy McCullough, Co-Administrator of the Estate of Earl V. McCullough, Jr., deceased (collectively, the appellants), appeal from an order of the Court of Common Pleas of Allegheny County (trial court) dismissing them petition for a rule to show cause why a default judgment entered against them should not be stricken or opened. We vacate and remand.

FACTS

Earl Vincent McCullough, Jr. and Norma Jean McCullough purchased a one-story home at 451 Blackberry Drive, Monroeville, Pennsylvania (subject property) as tenants by the entireties on August 20, 1955. The McCulloughs subsequently divorced on December 31, 1981, and by operation of law, they became owners of the subject property as tenants in common. Norma Jean McCullough has continuously lived in the subject property. On January 14, 1986, Earl V. McCullough, Jr. died intestate, and his one-half interest in the subject property passed to his estate. On March 10, 1986, E. Timothy McCullough and Roy E. McCullough were granted letters of administration for the estate.1

Norma Jean McCullough was in arrears in the payment of property taxes from tax year 1979 to the time of the commencement of the [42]*42instant action. Consequently, on January 21, 1992, she entered a contractual installment agreement with Allegheny County (County) for the payment of delinquent property taxes. The contract provided that the County would forego enforcement of its delinquent tax collection rights in consideration for repayment of the past due balance in monthly payments of $200.00. According to the County, Norma Jean McCullough failed to keep current on the monthly obligations.

Because of Norma Jean McCullough’s alleged delinquent tax status, the County, on July 28, 1993, caused to be issued a Writ of Scire Facias2 Sur Delinquent Tax Lien (writ) against the subject property to reduce County real estate tax liens for years 1979 through 1992. Pursuant to Section 18 of the Act of May 16, 1923, P.L. 207, as amended, 53 P.S. § 7186, the sheriff personally served Norma Jean McCullough with the writ on August 13, 1993; and, on that same day, the sheriff also personally served E. Timothy McCullough with the writ. The County’s attempts to serve Roy E. McCullough proved unsuccessful.3

Consequently, on October 27, 1993, the County sought a default judgment against Norma Jean McCullough and E. Timothy McCullough.4 According to the appellants, the County reneged on an agreement between E. Timothy McCullough and the County, in which they agreed that the County would not file a default judgment pending receipt by the appellants of certain information from the Office of the County Treasurer.5

On November 5, 1993, the appellants petitioned the trial court for a rule to show cause why a default judgment should not be stricken or opened. The trial court initially granted the rule; however, because appellants failed to comply with a local rule, the trial court on December 20, 1993 vacated its order.6 Thus, on December 23, 1993, the appellants filed another petition for a rule to show cause why the default judgment should not be stricken or opened. By order of the same date, the trial court dismissed the petition. The present appeal followed.

ISSUES

The appellants present three issues for our review: 1) whether the trial court abused its discretion in failing to strike the default judgment because of failure to serve Roy E. McCullough; 2) whether the trial court abused its discretion in failing to open the default judgment because the appellants timely filed their petition to strike or open default judgment, had a reasonable explanation for their delay, and had a meritorious defense to the claim; and 3) whether the trial court abused its discretion in failing to open the default judgment because of the alleged agreement among the parties, which was [43]*43contained in the confirmation letter of September 29, 1993.7

ANALYSIS

I. DID THE TRIAL COURT ERR IN NOT STRIKING THE JUDGMENT?

With respect to the first issue, the appellants initially contend that the trial court should have stricken the default judgment because the County failed to serve E. Timothy McCullough properly. Specifically, the appellants allege that because the sheriffs return contained a notation that the sheriff served E. Timothy McCullough at 204 Ken-mar Drive in Monroeville, service was never effectuated because the location has no relationship to E. Timothy McCullough. In opposition, the County contends that the sheriffs return, which indicated that the sheriff properly served E. Timothy McCullough, is conclusive.

A trial court may strike a default judgment only if there is a defect appearing on the face of the record. Parliament Industries, Inc. v. William H. Vaughan & Company, Inc., 501 Pa. 1, 459 A.2d 720 (1983). Furthermore, we will only look at the record for defects that existed at the time the trial court entered the judgment. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969). Finally, our courts have long followed the rule that, without fraud, the return of service of a sheriff, which is complete on its face, is conclusive and immune from attack by extrinsic evidence. Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965).

In the instant case, a review of the sheriffs return concerning E. Timothy McCullough indicates that the sheriff personally served him with the writ on August 13, 1993. It is clear from the appellants’ argument that they are seeking to attack service of E. Timothy McCullough by extrinsic evidence, namely, the location of service had no relationship to him. Under our Supreme Court’s holding in Hollinger, however, such an attack by extrinsic evidence of a sheriffs return is prohibited. Thus, we hold that the trial court did not err in refusing to strike the judgment for this reason.

Next, the appellants maintain that the County improperly obtained an in rem judgment against the subject property before the sheriff properly served Roy E. McCullough, who had an interest in the subject property. Citing Borough of Towanda v. Brannaka, 61 Pa.Commonwealth Ct. 622, 434 A.2d 889 (1981), the appellants believe that failure to serve Roy E. McCullough was fatal because the law requires that all “owners” of the subject property be served in an in rem action. We disagree.

It was undisputed that the County obtained a default judgment against the subject property before Roy E. McCullough was served. However, this fact is of no moment. Roy E. McCullough’s interest in the instant case arises from his status as co-administrator of the estate of Earl V. McCullough, Jr. As demonstrated above, the County properly served the other co-administrator, E. Timothy McCullough, before it obtained the default judgment. We believe that the service of E. Timothy McCullough as co-administrator was sufficient to bind the estate.

In Selig v.

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Bluebook (online)
659 A.2d 40, 1995 Pa. Commw. LEXIS 220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/county-of-allegheny-v-mccullough-pacommwct-1995.