FORSYTHE FINANCE LLC COURT OF COMMON PLEAS

DELAWARE COUNTY

Plaintiff NO CV 2023 000475

NIKOLAOS HATZIEFSTATHIOU

Defendant

( ORDER DENYING PETITION

Proceedings and Vacate Default Judgment (the Petition ) filed by Defendant/Petitioner

Nikolaos Hatziefstathiou ( Defendant/Petitioner or Hatziefstathiou ) the Response in

Opposition thereto filed by PIaintiff/Respondent Forsythe Finance LLC

( PIaintiff/Resgondent or Forsflhe ) and a hearing having been held thereon on April

9 2024 (the April Hearing ) IT IS HEREBY ORDERED and DECREED that the

Petition is DENIED as set forth below

This case arises from Defendant/Petitioner 3 failure to make monthly payments

on the sums loaned to Hatziefstathiou under a written contract for the purchase of a

motor vehicle 1 Specifically Hatziefstathiou failed to make timely regular monthly

payments to Forsythe with the last payment having been made on September 18

2020 On November 24 2021 Defendant/Petitioner was sentenced to a two to four

year imprisonment for an unrelated matter On January 18 2023 Forsythe commenced

1 The contract was assigned to Forsythe whereby Plaintiff/Respondent acquired legal title to
Hatziefstathiou 3 account and became the holder of all claims against Hatziefstathiou arising from the
contract

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this action and sheriff’s service was rendered on Defendant/Petitioners mother on

February 1 2023 while Hatziefstathiou was incarcerated Defaultjudgment was then

entered against Defendant/Petitioner on April 14 2023 again while Hatziefstathiou was

incarcerated Defendant/Petitioner was paroled on May 24 2023 On January 19 2024

Plaintiff/Respondent filed a writ of execution seeking to levy upon Hatziefstathiou 5

property to pay thejudgment On March 19 2024 Plaintiff/Respondent attempted to

inventory Hatziefstathiou 3 property Defendant/Petitioner filed the instant Petition the

next day seeking to stay proceedings vacate the Default Judgment and allow

Defendant/Petitioner to file an Answer

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

are two distinct remedies and are generally not interchangeable U K LaSalle, Inc v

Lawless 618 A 2d 447 449 (Pa Super Ct 1992) A petition to strike ajudgment acts

as a demurrer to the record ld_ As such it is not a matter of judicial discretion |_d_ A

petition to strike a judgment may be granted only where a fatal defect in the judgment

appears on the face of the record I; Conversely a petition to open default judgment :3

matter ofjudicial discretion Schultz v Erie Ins Exch 477 A 2d 471 472 (Pa 1984)

(emphasis added) Generally the court will exercise this discretion when (1) the petition

has been promptly filed" (2) a meritorious defense can be shown' and (3) the failure to

appear can be reasonably excused H. see also Pa R Civ P 237 3 (supplying two of

the three requisites for opening default judgments)

Defendant/Petitioner s request to vacate the default judgment (I e to strike the

default judgment) fails because there is no fatal defect on the record Although

Defendant/Petitioner argues that the default judgment should be stricken because

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service was made on his mother while he was incarcerated and therefore was

improper such service was proper because when notice is served to an adult family

member at the defendant s last known address there is no fatal defect or irregularity

Roy by & through Roy v Rue 273 A 3d 1174 1185 (Pa Super Ct 2022) goose]

denied 289 A 3d 43 (Pa 2022) 2 The record indicates that Defendant/Petitioner 5

mother is an adult member of Hatziefstathiou 5 family who resides at

Defendant/Petitioners last listed residence before he was incarcerated Pa R Civ P

402 (stating that [o]rigina| process may be served at the residence of the defendant

to an adult member of the family with whom he resides ) Accordingly

Defendant/Petitioner was properly served with the complaint when his mother accepted

service at [his last known address] Q at 1187 As such there is no basis to strike the

default judgment

Regarding Defendant/Petitioner 5 request to allow him to file an Answer (I e to

open the default judgment) the Court notes that if a petition to open fails any one

prong of the three prong test to open a default judgment then the petition must be

denied |_d_ 1188 89 (citing Myers v Wells Fargo Bank, N A 986 A 2d 171 175 76 (Pa

Super Ct 2009)) Here Defendant/Petitioner has not identified a meritorious defense

1e one that if proved at trial would justify relief See Penn Deico School District v Bell

Atlantic Pa Inc 745 A 2d 14 19 (Pa Super Ct 1999) appeal denied 795 A 2d 978

2 In R_oy the defendant was incarcerated when the original complaint was served on the defendant 5
mother at the defendants parents address Subsequently a defaultjudgment was entered against the
incarcerated defendant The defendant petitioned to strike or open the default judgment The trial court
determined and the Superior Court affirmed that service was not defective and that the defendant was
not entitled to strike the judgment entered against him Similarly here despite Defendant/Petitioner being
incarcerated when the original complaint and the ten day notice of intent to enter defaultjudgment was
served to his parents address service was proper

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(Pa 2000) Indeed Defendant/Petitioner provided no defenses to the Complaint See

generally Pet see Penn Delco School District 986 A 2d at 19 (indicating that to

establish a meritorious defense Petitioner must set forth the defense in precise

specific and clear terms ) Moreover Defendant/Petitioner did not provide a reasonable

explanation for his failure to appear 3 See Schultz 477 A 2d at 473 (holding that the

petition to open must be denied because the petitioner failed to plead a reasonable

excuse for the delay in answering) As such the Court cannot open the proceedings in

this case as requested

For the foregoing reasons it is HEREBY ORDERED and DECREED that the

Petition is DENIED W

KELLY D ECKEL J

3 At the April Hearing Defendant/Petitioner stated that he was unaware of the proceedings including that
a default judgment was entered against him because he was incarcerated when the case commenced
and when the Judgment was obtained However Petitioner was released from custody on May 24 2023
see Pet 1] 9 three and a half months after service had been made (properly as found hereinabove) and
waited another ten months before filing his Petition Moreover in the intervening time between
Petitioner 5 release and the March 20 2024 filing of the Petition additional filings in the case had been
made in the case including but not limited to a Praecipe to Dissolve an attachment which was served on
Petitioner in February of 2024 See Dkt No 14
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