Penn National a/s/o Shenberger, D. v. Phillips, B. ( 2022 )

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2022 PA Super 90PENN NATIONAL MUTUAL CASUALTY : IN THE SUPERIOR COURT OF
INSURANCE COMPANY, A/S/O : PENNSYLVANIA
DENNIS SHENBERGER :
:
:
v. :
:
:
BAILEY PHILLIPS : No. 1480 MDA 2021
:
Appellant :
Appeal from the Order Entered October 14, 2021
In the Court of Common Pleas of Franklin County Civil Division at No(s):
2021-2204
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED MAY 17, 2022
Appellant Bailey Phillips (“Mr. Phillips”) appeals from the October 14,
2021, order entered in the Court of Common Pleas of Franklin County, which
denied Mr. Phillips’ petition to strike or open the default judgment entered
against him and in favor of Appellees Penn National Mutual Casualty Insurance
Company (“Penn National”), A/S/O Dennis Shenberger (“Mr. Shenberger”).
After a careful review, we reverse and remand for further proceedings.
The relevant facts and procedural history are as follows: On July 19,
2021, Appellees filed a complaint against Mr. Phillips and averred he resides
at “1308 Summer Lake Drive, SW, Concord, North Carolina 28025.”
Complaint, filed 7/19/21, at ¶ 2. Appellees alleged that, on September 22,
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* Former Justice specially assigned to the Superior Court.
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2020, Mr. Shenberger was driving his vehicle, which was insured by Penn
National, on State Route 416 in Montgomery Township when Mr. Phillips
suddenly turned his vehicle into the path of Mr. Shenberger’s vehicle.
Appellees averred the vehicles collided due to Mr. Phillips’ excessive rate of
speed, failure to yield the right of way to Mr. Shenberger’s vehicle, and failure
to observe the presence of Mr. Shenberger’s vehicle. Appellees contended Mr.
Shenberger’s vehicle was “totaled” in the accident.
Appellees alleged they made a demand upon Mr. Phillips, who refused
to acknowledge responsibility for the accident. Thus, Penn National, which
paid for Mr. Shenberger’s loss under the insurance policy, pursued this action
in subrogation against Mr. Phillips. Appellees averred the accident resulted
solely due to Mr. Phillips’ negligent operation of his motor vehicle, and they
demanded judgment against Mr. Phillips in the amount of $26,804.59, plus
costs.
On August 3, 2021, Appellees filed an “Affidavit of Service by Mail
Pursuant to Pa.R.C.P. 1930.4.” In the affidavit, Appellees’ counsel indicated
he sent Mr. Phillips a copy of Appellees’ complaint via certified mail return
receipt requested to “1308 Summer Lake Drive, SW, Concord, NH 28025.”
Appellees’ counsel attached to the affidavit the U.S. Postal Service Certified
Mail Receipt, which indicates the complaint was mailed on July 21, 2021, to
“Bailey Phillips, 1308 Summer Lake Drive, SW, Concord, NC 28025.”
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Further, Appellees’ counsel attached to the affidavit U.S. Postal Form
3811, which reveals the date of delivery of the certified mail was July 28,
2021. The form contains the address “Bailey Phillips, 1308 Summer Lake
Drive, SW, Concord, NC 28025.” The signature of the person who signed for
the certified mail is not legible, and the phrase “Covid-19” is handwritten next
to the signature. The box “agent” is marked next to the signature line.
After receiving no response from Mr. Phillips, on September 7, 2021,
Appellees filed a “Praecipe to Enter Judgment by Default,” wherein Appellees
indicated:
Please enter judgment by default as to Defendant Bailey Phillips,
for failure to respond to the Complaint, in the amount of
$26,804.59, with costs of suit. [Counsel has] attached a copy of
the 10 Day Notice of Default dated August 19, 2021, as well as
the Affidavit of Service dated August 3, 2021.[1]
Praecipe to Enter Judgment by Default, filed 9/7/21 (footnote added).
Although Appellees averred that they attached the ten-day notice to the
praecipe to enter default judgment, the ten-day notice was not attached or
otherwise included in the record prior to the entry of the default judgment.
Moreover, Appellees did not attach to the praecipe to enter default judgment,
or otherwise include in the record prior to the entry of the default judgment,
any certification that a written notice of intention to file the praecipe was
mailed or delivered to Mr. Phillips.
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1 The August 3, 2021, affidavit of service pertains to the service of the
complaint and provides no information as to the service of the ten-day notice.
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On September 7, 2021, the trial court entered default judgment against
Mr. Phillips. On September 17, 2021, counsel entered an appearance on
behalf of Mr. Phillips, and, on that same date, he filed a petition to strike or
open the default judgment.
Therein, counsel noted Mr. Phillips’ vehicle was insured with GEICO
Insurance, Company (“GEICO”), and the insurance policy provides that Mr.
Phillips’ address is “5421 Buchanan Trail W., Greencastle, PA 17725.”2
Petition, filed 9/17/21, at ¶ 9. Counsel indicated GEICO “has retained the
services of a private investigator to determine whether [Mr. Phillips] actually
resides at the Buchanan Trail address as indicated in the policy documents.”3
Id. at ¶ 23.
Additionally, in the petition to strike or open, counsel averred that, since
the ten-day notice was not filed with the trial court, “it is unclear if it was
properly served upon the Defendant.” Id. at ¶ 5. He noted that, in the
affidavit of service of the complaint, Appellees’ counsel attested he served the
complaint on Mr. Phillips in “NH,” which is the abbreviation for New
Hampshire; however, the U.S. Postal Service Certified Mail Receipt and U.S.
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2Counsel attached to the petition a copy of Mr. Phillips’ automobile insurance
policy with GEICO.
3GEICO is not a party to this case, and it is unclear how GEICO received notice
of this matter. Counsel indicated in the petition that he did not have an
opportunity to confer with Mr. Phillips.
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Postal Form 3811 reveal the complaint was mailed to “NC,” which is the
abbreviation for North Carolina. Moreover, he noted the signature line for the
person receiving the certified mail is not legible and contains the phrase
“Covid-19.”
Based on the aforementioned, counsel, on behalf of Mr. Phillips,
contended the record contains a fatal defect as to whether Mr. Phillips was
properly served with original process or the ten-day notice, and thus, the
default judgment is void and should be stricken. He also contended he met
the prongs for opening the judgment under Pa.R.C.P. 237.3 since the petition
was promptly filed, Mr. Phillips has a meritorious defense, and, due to the
confusion regarding service, there is a reasonable excuse for Mr. Phillips failing
to file a responsive pleading. Additionally, on September 17, 2021, counsel
filed an answer with new matter to Appellees’ complaint.4
On September 29, 2021, the trial court filed an order for Appellees to
show cause why Mr. Phillips is not entitled to the relief requested, and on
October 4, 2021, Appellees filed a response to the petition to strike or open
the default judgment. Therein, Appellees asserted:
The copy of the 10 Day Notice that had been sent to Mr.
Phillips was attached to the original documents sent to the
Prothonotary. If they are unattached to the document as entered
of record on September 7, 2021, it is because of clerical oversight.
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4 The majority of the answers indicate: “After reasonable investigation, the
Defendant has insufficient information as to the truth or falsity of said
averments, therefore said averments are denied and strict proof is demanded
at the time of trial.” Answer, filed 9/17/21, ¶¶ 1, 3-10, 13-14.
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The Court staff had requested a revised Praecipe that was sent on
September 3, 2021.
Appellees’ Response, filed 10/4/21, at ¶ 5 (citation to record omitted).
Appellees attached a copy of the ten-day notice, as well as the certificate
of service, to their response to the petition to strike or open.
Regarding original process, Appellees indicated there was a
typographical error in the August 3, 2021, affidavit of service, which was filed
in the trial court, regarding the abbreviation for the state where Mr. Phillips
resides. However, Appellees noted the U.S. postal forms correctly reveal the
complaint was served via certified mail return receipt requested to Concord,
North Carolina, which is where Mr. Phillips resides. Further, Appellees noted
there is no reason to believe that either Mr. Phillips, or someone authorized
to do so, did not sign for the certified mail since it was mailed to Mr. Phillips’
residence.
Moreover, Appellees averred that, since counsel was apparently retained
by GEICO, and not Mr. Phillips, and counsel has not communicated with Mr.
Phillips regarding the instant matter, there is no basis to conclude Mr. Phillips
was not served with the complaint, ten-day notice, or default judgment. Also,
Appellees argued there is no basis to conclude Mr. Phillips has a meritorious
defense for purposes of opening the default judgment since the petition has
been filed based on speculation by GEICO.
On October 4, 2021, counsel filed on behalf of Mr. Phillips a
supplemental petition to strike or open the default judgment. Therein, counsel
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addressed Appellees’ supplementation of the record with a copy of the ten-
day notice. Specifically, counsel averred the ten-day notice is defective since
it directed the plaintiff to the Pennsylvania Lawyer Referral Service in
Harrisburg, Pennsylvania, for assistance as opposed to the Franklin County
Bar Association’s Find a Lawyer Service in Chambersburg, Pennsylvania.
Further, counsel contended the ten-day notice did not substantially
comply with the form as set forth in Pa.R.C.P. 237.5. In this regard, he argued
the notice contained general language as opposed to specific language
required by Pa.R.C.P. 237.5 as to the reasons Mr. Phillips was allegedly in
default.
On October 5, 2021, Appellees filed a response to the supplemental
petition to strike or open the default judgment. Therein, they averred the ten-
day notice contains the necessary information as provided for under Pa.R.C.P.
237.5, and there are no defects in the ten-day notice.
By order entered on October 14, 2021, the trial court denied Mr. Phillips’
petition to strike or open the default judgment. On November 10, 2021,
counsel filed a timely notice of appeal on behalf of Mr. Phillips, and on
November 12, 2021, the trial court directed Mr. Phillips to file a Pa.R.A.P.
1925(b) statement. On November 30, 2021, Mr. Phillips filed a Rule 1925(b)
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statement, and the trial court filed a Rule 1925(a) opinion5 on January 10,
2022.
On appeal, Mr. Phillips sets forth the following issue in his “Statement
of the Questions Involved” (verbatim):
Did the trial court error [sic] when it denied Appellant’s
Petition to Strike Judgment when a fatal defect existed, on the
face of the record, at the time the judgment was entered?
Mr. Phillips’ Brief at 3.
On appeal, Mr. Phillips presents challenges solely to the trial court’s
denial of his petition to strike.6 Relevantly, this Court has held:
“An appeal regarding a petition to strike a default judgment
implicates the Pennsylvania Rules of Civil Procedure.” Green
Acres Rehabilitation and Nursing Center v. Sullivan, 113
A.3d 1261, 1267 (Pa.Super. 2015).
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5 The trial court suggested that Mr. Phillips’ failure to verify the petition, as
well as the supplemental petition, to strike or open the default judgment
required the denial of the petition. The Pennsylvania Rules of Civil Procedure
provide that “[a] petition or an answer containing an allegation of fact which
does not appear of record shall be verified.” Pa.R.C.P. 206.3. However, this
Court has held verification under Rule 206.3 is not needed for allegations of
fact that appear in the record or for conclusions of law. Penn-Delco School
District v. Bell-Atlantic-PA, Inc., 745 A.2d 14 (Pa.Super. 1998). We have
also concluded that any unverified allegations of fact that are set forth in the
petition do not amount to a material defect. Id. Here, the allegations that
form the basis for Mr. Phillips’ petition to strike are allegations of fact that
appear in the record or are conclusions of law, and thus, consistent with Penn-
Delco School District, the allegations do not require a Rule 206.3
verification. To the extent there are any unverified allegation of facts in the
petition and supplemental petition, the inclusion thereof does not amount to
a material defect.
6 A petition to open a default judgment and a petition to strike a default
judgment seek distinct remedies and are generally not interchangeable.
Stauffer v. Hevener, 881 A.2d 868, 870 (Pa.Super. 2005).
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Issues regarding the operation of procedural
rules of court present us with questions of law.
Therefore, our standard of review is de novo and our
scope of review is plenary.
A petition to strike a 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. When deciding if there
are fatal defects on the face of the record for the
purposes of a petition to strike a [default] judgment,
a court may only look at what was in the record when
the judgment was entered.
Bank of New York Mellon v. Johnson, 121 A.3d 1056, 1059-60 (Pa.Super.
2015) (quotation omitted). See Oswald v. WB Public Square Associates,
LLC, 80 A.3d 790 (Pa.Super. 2013); Continental Bank v. Rapp, 485 A.2d
480, 483 (Pa.Super. 1984) (“The standard for ‘defects’ asks whether the
procedures mandated by law for the taking of default judgments have been
followed.”) (citation omitted)).
Mr. Phillips first contends the record reveals a fatal defect as to the
affidavit/return of service of the complaint. In this vein, he notes there is a
discrepancy between the affidavit of service, which indicates the complaint
was served in “NH,” and the U.S. postal forms, which reveal the complaint
was served in “NC.” Specifically, he alleges:
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The record, on its face, indicates Appellees never accomplished
proper service of the Complaint as averred in the Affidavit of
Service…since there were significant discrepancies regarding Mr.
Phillips’s address[.] Counsel for Appellees attested in the Affidavit
of Service that [Mr.] Phillips was served with a copy of the
Complaint to a New Hampshire address while the Certified Mail
Return Receipt is addressed to a North Carolina address.
Mr. Phillips’ Brief at 7-8.
It is well-settled that:
Service of process is a mechanism by which a court obtains
jurisdiction of a defendant, and therefore, the rules concerning
service of process must be strictly followed. Without valid service,
a court lacks personal jurisdiction of a defendant and is powerless
to enter judgment against [the defendant].
Thus, improper service is not merely a procedural defect
that can be ignored when a defendant subsequently learns of the
action....However, the absence of or a defect in a return of service
does not necessarily divest a court of jurisdiction of a defendant
who was properly served. [T]he fact of service is the important
thing in determining jurisdiction and...proof of service may be
defective or even lacking, but if the fact of service is established
jurisdiction cannot be questioned.
Cintas Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 700 A.2d 915,
917-18 (1997) (citations and quotation marks omitted).
Regarding service of original process outside of this Commonwealth, this
Court has relevantly held the following:
Service of original process upon an out-of-state defendant
is governed by Pa.R.C.P. 403-405. Rule 404 provides in pertinent
part: “Original process shall be served outside the Commonwealth
within ninety days of the issuance of the writ or the filing of the
complaint or the reissuance or the reinstatement thereof...(2) by
mail in the manner provided by Rule 403.” Pa.R.C.P. 404. Rule
405(c) provides that service of process by mail under Rule 403
“shall include a return receipt signed by the defendant.” Pa.R.C.P.
405. Rule 403 directs that “a copy of the process shall be mailed
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to the defendant by any form of mail requiring a receipt signed by
the defendant or his authorized agent. Service is complete upon
delivery of the mail.” Pa.R.C.P. 403. Nonetheless, Pa.R.C.P. 126
provides that the Rules of Civil Procedure “shall be liberally
construed” and that courts “at every stage of any such action or
proceeding may disregard any error or defect of procedure which
does not affect the substantial rights of the parties.” Pa.R.C.P.
126.
Sawyers v. Davis, 222 A.3d 1, 5-6 (Pa.Super. 2019).
In the case sub judice, the record on its face reveals that Appellees sent
the complaint to Mr. Phillips via certified mail return receipt requested in
compliance with Pa.R.C.P. 403 and 404. See Sawyers, supra. The postal
forms confirm the complaint was mailed to Mr. Phillips at his North Carolina
address. This is the same address listed in the complaint for Mr. Phillips’
residence.7
Further, U.S. Postal Form 3811 confirms the date of delivery of the
certified mail was July 28, 2021, and it was signed by a person who indicated
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7 Mr. Phillips makes no averment on appeal that, at the time the complaint
was served, he was not residing at the North Carolina address. Rather,
counsel, on behalf of Mr. Phillips, points to the discrepancy between the
affidavit of service and the certified mail forms regarding the abbreviation of
the state, and he suggests the discrepancy, in and of itself, requires the
striking of the default judgment. In any event, we note a petition to strike
operates as a demurrer, which admits all well-pleaded facts for the purpose
of testing conclusions of law drawn from those facts. Lumax Industries,
Inc. v. Aultman, 543 Pa. 38, 669 A.2d 893 (1995). Here, as indicated supra,
Appellees pled in the complaint that Mr. Phillips “reside[s] at 1308 Summer
Lake Drive, SW, Concord, North Carolina 28025.” Complaint, filed 7/19/21, at
¶ 2.
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he or she was “the agent” of Mr. Phillips.8 See id. Thus, as “[s]ervice is
complete upon delivery of the mail[,]” id. at 6, we disagree with Mr. Phillips’
assertion that there is a fatal defect in the record regarding personal
jurisdiction.
Although Appellees’ counsel’s affidavit of service contained a “defect”
regarding the abbreviation of the state where Mr. Phillips was served, this
does not require a different conclusion. As indicated supra, “the absence of
or a defect in a return of service does not necessarily divest a court of
jurisdiction of a defendant who was properly served. [T]he fact of service is
the important thing in determining jurisdiction[.]” Cintas Corp., supra, 700
A.2d at 917-18. Here, the record reveals proper service of original process,
and, therefore, we conclude the trial court properly denied Mr. Phillips’ petition
to strike on this basis. See Anzalone v. Vormack, 718 A.2d 1246, 1248
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8 To the extent Mr. Phillips contends the person who signed for the certified
mail was not his agent, despite marking the box indicating he or she was his
agent, we note the trial court was unable to consider the argument in the
context of a motion to strike the default judgment. See Digital
Communications Warehouse, Inc. v. Allen Investments, LLC, 223 A.3d
278 (Pa.Super. 2019) (holding trial court was unable to consider the
appellant’s argument that the person upon whom the complaint was served
was not an authorized agent in the context of a motion to strike as such
evidence was outside the record). See also Pincus v. Mutual Assur. Co.,
457 Pa. 94, 321 A.2d 906, 910 (1974) (indicating that even where a return of
service fails to specifically identify by name the person served, that failure
alone does not necessarily invalidate the service). Moreover, to the extent
Mr. Phillips suggests the trial court should have looked beyond the record to
determine why his agent wrote “Covid-19” next to his or her signature, we
note the trial court was unable to consider the argument in the context of a
motion to strike the default judgment. See id.- 12 -
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(Pa.Super. 1998) (holding that whether process was delivered to the
appropriate person and place under the Rules of Civil Procedure is dispositive
on the issue of whether service was sufficient to invoke the trial court’s
jurisdiction, notwithstanding defects in the affidavit of service).
Mr. Phillips next contends Appellees’ ten-day notice of intent to take
default judgment is defective. He argues Appellees did not comply with either
Pa.R.C.P. 237.1 or 237.5. This issue raises a question of law, and, therefore,
“our standard of review is de novo, and our scope of review is plenary.”
Oswald, 80 A.3d at 793 (citation omitted).
Mr. Phillips’ argument focuses on the interplay between Pennsylvania
Rules of Civil Procedure 237.1 and 237.5. Rule 237.1 requires a plaintiff to
provide a defendant with at least ten days prior notice of his intent to enter a
default judgment. The Rule relevantly provides:
Rule 237.1 Notice of Praecipe for Entry of Judgment of Non
Pros for Failure to File Complaint or by Default for Failure
to Plead
***
(2) No judgment of non pros for failure to file a complaint or by
default for failure to plead shall be entered by the prothonotary
unless the praecipe for entry includes a certification that a written
notice of intention to file the praecipe was mailed or delivered
***
(ii) in the case of a judgment by default, after the
failure to plead to a complaint and at least ten days
prior to the date of the filing of the praecipe to the
party against whom judgment is to be entered and to
the party’s attorney of record, if any.
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The ten-day notice period in subdivision (a)(2)(i) and (ii) shall be
calculated forward from the date of the mailing or delivery, in
accordance with Rule 106.
(3) A copy of the notice shall be attached to the praecipe.
(4) The notice and certification required by this rule may not be
waived.
Note: A certification of notice is a prerequisite in all cases to
the entry by praecipe of a judgment of non pros for failure to file
a complaint or by default for failure to plead to a complaint. Once
the ten-day notice has been given, no further notice is required
by the rule even if the time to file the complaint or to plead to the
complaint has been extended by agreement.
See Rule 237.4 for the form of the notice of intention to
enter a judgment of non pros and Rule 237.5 for the form of the
notice of intention to enter a judgment by default.
Pa.R.C.P. 237.1(a)(2)(ii), (3), (4) (emphasis in original).
The Explanatory Comment to Rule 237.1 provides, in relevant part:
The rule continues the practice of entering judgment by the filing
of a praecipe with the prothonotary. Two additional requirements
are imposed. First, the praecipe must contain a certification that
notice was given in accordance with the rule. Second, a copy of
the notice must be attached to the praecipe.
Id., Explanatory Cmt. (1994).
The purpose of this rule is to ensure that default judgments are not
entered without a defendant’s prior knowledge, and to provide the defaulting
party with an opportunity to cure the defect prior to the entry of default
judgment. Green Acres Rehabilitation and Nursing Center, 113 A.3d at
1271-72. “A record that reflects a failure to comply with Rule 237.1 is facially
defective and cannot support a default judgment.” Erie Ins. Co. v. Bullard,
839 A.2d 383, 387 (Pa.Super. 2003).
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In interpreting Rule 237.1, this Court has relevantly held:
“Every rule shall be construed, if possible, to give effect to all its
provisions. When the words of a rule are clear and free from all
ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” Pa.R.C.P. 127(b). As set forth
above, Pa.R.C.P. 237.1 provides…that a plaintiff seeking the entry
of default judgment must file a praecipe and include with the
praecipe “a certification that a written notice of intention to file
the praecipe was mailed or delivered...after the failure to plead to
a complaint and at least ten days prior to the date of the filing of
the praecipe[.]” Pa.R.C.P. 237.1(2)(ii). The only other
requirement contained in this Rule is that “[a] copy of the notice
shall be attached to the praecipe.” Pa.R.C.P. 237.1(3). The
language of this Rule is clear and unambiguous. Rule
237.1…requires that [the notice] be attached to the praecipe for
default judgment at the time the praecipe is filed.
Keller v. Mey, 67 A.3d 1, 5 (Pa.Super. 2013).
In the case sub judice, although Appellees suggest it was a “clerical
oversight,” the record reveals Appellees failed to attach to the praecipe to
enter judgment either the ten-day notice or a certification that they sent
written notice of their intention to file a praecipe for default judgment.9 Thus,
Appellees did not comply with Rule 237.1 in this regard. See id. at 4 (“With
regard to a motion to strike a default judgment, [a] court may only look at
the facts of record at the time judgment was entered to decide if the record
supports the judgment.”). The trial court recognized as much in its Rule
1925(a) opinion. See Trial Court Opinion, filed 1/10/22, at 4 (“The record
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9As indicated supra, the only reference to the ten-day notice was Appellees’
counsel’s averment in the praecipe to enter default judgment that “I attach a
copy of the 10 Day Notice of Default dated August 19, 2021[.]” Praecipe to
Enter Judgment by Default, filed 9/7/21.
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indicates that [Appellees] filed a Praecipe to Enter Judgment by Default on
September 7, 2021, and while the Praecipe claims to have a copy of the Ten-
Day Important Notice attached, there is no such notice in the filing. This lack
of filing does not conform to Pa.R.C.P. 237.1”) (emphasis omitted)).
Moreover, Mr. Phillips avers that, even if the trial court was permitted
to consider the ten-day notice and certification, which were filed as
attachments to Appellees’ response to the petition to strike or open, the ten-
day notice does not substantially comply with the language set forth in Rule
237.5. Thus, he avers the ten-day notice is defective on its face.
Rule 237.1 operates in tandem with Rule 237.5. The ten-day notice must
“substantially” comply with the language set forth in Rule 237.5 in order to
meet the mandates of Rule 237.1. See Oswald, supra. Relevantly, Rule
237.5 provides that the notice must advise the defaulting party: “You are in
default because you have failed to enter a written appearance personally or
by attorney and file in writing with the court your defenses or objections to
the claims set forth against you.” Pa.R.C.P. 237.5.
In the case sub judice, Appellees’ ten-day notice of default relevantly
provided: “You are in default because you have failed to plead to the
Complaint filed in the above-captioned matter.” Citing to Oswald, supra, Mr.
Phillips asserts the language provided in Appellees’ ten-day notice is defective
and does not substantially comply with the language of Rule 237.5.
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In Oswald, supra, the plaintiff initiated an action against the defendant
by filing a complaint with proper service. After the defendant failed to respond
to the complaint, the plaintiff sent the defendant notice of her intention to file
a praecipe for default judgment. The default judgment notice provided in
Oswald stated, in relevant part, “You are in default because you have failed
to take action required of you in this case.” Id. at 796 (emphasis omitted).
This Court found that this language was “deficient” since the notice failed to
state “specific reasons why the defendant is in default.” Id. (quoting City of
Philadelphia v. David J. Lane Advertising, Inc., 33 A.3d 674, 679
(Pa.Cmwlth. 2011)). Thus, this Court concluded the notice of default judgment
rendered the notice “defective on its face,” as the document was “not
‘substantially’ in the form required by Rule 237.5.” Oswald, 80 A.3d at 796.
In so holding, this Court adopted the reasoning of the Commonwealth
Court in David J. Lane Advertising, Inc., wherein the court explained:
The general “failed to take action required of you in this
case” language is consistent with the version of the form in Rule
237.5 predating a 1994 amendment (Old Form Notice). In the
1994 amendment, which became effective on July 1, 1995, the
Supreme Court chose to remove this general language in the Old
Form Notice and to substitute the more specific language in the
current form—“failed to enter a written appearance personally or
by attorney and file in writing with the court your defenses or
objections to the claims set forth against you.” Indeed, it appears
from the explanatory comment to the rule that the specific
purpose of the 1994 amendment was to add this more specific
language to the form. The explanatory comment notes that the
purpose of the modification is to track the language set forth in
Pa.R.C.P. [ ] 1018.1 for a notice to plead, which language
expressly directs the defendant to defend by entering an
appearance (either personally or by attorney) and by filing with
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the court in writing defenses or objections to the claims in the
complaint. The comment to Rule 237.5 further provides: “Since
the notice will in many cases be sent to an as yet unrepresented
defendant, repetition of the notice to defend, in modified form
helps to stimulate action and stem the tide of petitions to open
default judgments.”
In adopting the revision to the form, then, the Pennsylvania
Supreme Court determined that before entering judgment by
default (which is no insignificant matter), it was important to
notify a defendant specifically what it failed to do (i.e., why it was
in default) by tracking the language in the earlier-issued notice to
defend. Rather than informing a defendant that he merely “failed
to take action required by you in this case,” a more specific notice
of why the defendant was in default that tracks the earlier notice
to defend serves as a reminder to the defendant in many cases
unrepresented at that point, of the defendant’s specific pleading
obligations.
Id. at 678–79 (internal citations and emphasis omitted).
In light of the aforementioned, we agree with Mr. Phillips that the ten-
day notice was defective. “[T]he ten-day notice…was defective on its face
because it did not use [or substantially comply with] the required language
set forth in Rule 237.5.” Rooks v. Walker, 268 A.3d 447, *3 (Pa.Super.
2021) (unpublished memorandum).10 On its face, then, the notice violated
Rule 237.1(a)(2).
Thus, the Prothonotary was not authorized to enter the default
judgment, and the judgment against Mr. Phillips was void ab initio. See id.____________________________________________
10 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
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J-S13035-22
Accordingly, we conclude the trial court should have granted the petition to
strike the default judgment.11 We, therefore, reverse the order denying the
petition to strike and remand for further proceedings.
Order reversed; case remanded; jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/17/2022
____________________________________________
11 Given our disposition, we need not address any remaining issues.
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