Smith, J. v. Coble, R. ( 2022 )


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  • J-S19019-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    JAMES W.S. SMITH, JR.                      :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RICHARD P. COBLE, ESQ., MICHAEL            :
    T. VAN DER VEEN, ESQ., AND THE             :
    LAW OFFICE OF VAN DER VEEN,                :   No. 2092 EDA 2021
    O'NEILL, HARTSHORN, LEVIN A/K/A            :
    MTV LAW                                    :
    :
    Appellants              :
    Appeal from the Order Entered September 9, 2021
    In the Court of Common Pleas of Philadelphia County Civil Division at
    No(s): 210301913
    BEFORE:      PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*
    MEMORANDUM BY OLSON, J.:                                  FILED JULY 14, 2022
    Appellants, Richard P. Coble, Esq., Michael T. van der Veen, Esq., and
    the law office of van der Veen, O’Neill, Hartshorn, Levin a/k/a MTV Law, appeal
    from the order entered on September 9, 2021.            The subject order denied
    Appellants’ petition to open and/or strike the default judgment that was
    entered in favor of plaintiff, James W.S. Smith, Jr. (hereinafter “Plaintiff”) and
    against Appellants. We vacate and remand.
    On March 17, 2021, Plaintiff initiated a civil action by filing a pro se
    complaint against Appellants in the Philadelphia County Court of Common
    Pleas. Within the complaint, Plaintiff averred that, after he was convicted of
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S19019-22
    a crime and sentenced in the Philadelphia County Court of Common Pleas, he
    retained Appellants as legal counsel.            Plaintiff’s Complaint, 3/17/21, at
    ¶¶ 8-71. Plaintiff claimed, however, that Appellants failed to properly litigate
    his post-sentence motion.1        Id. at ¶¶ 71-103. As a result, Plaintiff filed a
    ____________________________________________
    1   Within Plaintiff’s Complaint, Plaintiff alleged:
    71. At [the post-sentence motion] hearing, [Appellant] Coble read
    the [post-sentence] motion in to the record.
    ...
    73. [Appellant] Coble made no arguments other than what
    [Plaintiff] wrote on paper next to them while the [district attorney]
    presented her argument.
    ...
    78. [Plaintiff] wrote numerous letters to [Appellant] Coble.
    79. [Appellant] Coble never responded to date.
    80. [Appellant] Coble never obtained [Plaintiff’s] records from [his
    prior attorney].
    81. [Appellant] Coble never obtained trial transcripts.
    ...
    87. [Appellant] Coble stated he definitely would win the
    [post-sentence motion] because of the undefendable errors made
    by the [trial] court.
    88. [Appellant] Coble misrepresented himself to [Plaintiff] and his
    [fiancée].
    89. Plaintiff has lost possessions as a result of being incarcerated
    much longer than he should have.
    (Footnote Continued Next Page)
    -2-
    J-S19019-22
    three-count complaint against Appellants, claiming breach of contract,
    professional negligence, and intentional infliction of emotional distress, and
    sought over $1,500,000.00 in damages. Id. at ¶¶ 93-127.
    Plaintiff prefaced his complaint with a clause purporting to be a “notice
    to defend,” which declared:
    NOTICE TO DEFEND
    You have been sued in court. If you wish to defend against
    the claims set forth in the following pages, you must take
    action within twenty (20) days after this complaint and notice
    are served, by entering a written appearance personally or
    by attorney and filing in writing with the court your defenses
    or objections to the claims set forth against you. You are
    warned that if you fail to do so the case may proceed without
    you and a judgment may be entered against you by the court
    without further notice for any money claimed in the compliant
    or for any other claim or relief requested by the Plaintiff. You
    may lose money or property or other rights important to you.
    YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
    IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE
    OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU
    WITH INFORMATION ABOUT HIRING A LAWYER.
    IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE
    MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT
    AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
    PERSONS AT A REDUCED FEE OR NO FEE.
    Community Legal Service
    1410 W Eerie Ave.
    Philadelphia, PA 19140
    (215) 227-2400
    ____________________________________________
    Plaintiff’s Complaint, 3/17/21, at ¶¶ 71-89.
    -3-
    J-S19019-22
    Id. at “Notice to Defend.”
    On March 26, 2021, an individual named Angel Bunton2 filed an affidavit
    of service, declaring:
    I, Angel Bunton, do affirm that on March 26, 2021, I did serve
    three copies of the complaint for case March term 21
    No:01913 Smith v. Coble ET AL. Service was completed by
    handing all three copies to a woman who identified herself as
    Erica Green. She was an African American woman about late
    twenties, early thirties. She also stated she was the
    receptionist and signed for the complaints. See attached.
    Service was for Defendants Richard Coble, Michael T Van Der
    Veen and MTV Law.
    /s/ Angel Bunton
    PO Box 485
    Vineland NJ 08362
    ...
    Affidavit of Service, 3/26/21, at 1.
    Attached to the affidavit of service is a photographic “receipt of service,”
    signed by an individual named Erica L. Green, declaring:
    On the 26 day of March, 2021, I received 3 envelopes. The
    envelopes are for Richard Coble ESQ, Michael T Van der Veen
    ESQ, and MTV Law. The envelopes were hand delivered.
    Affidavit of Service, 3/26/21, at Attachment.
    ____________________________________________
    2 Plaintiff’s Complaint declares that Angel Bunton is his fiancée. See Plaintiff’s
    Complaint, 3/17/21, at ¶¶ 88 and 105. We note that Pennsylvania Rule of
    Civil Procedure 400.1(a)(1) declares that, “[i]n an action commenced in the
    First Judicial District, original process may be served . . . within the county by
    the sheriff or a competent adult.” Pa.R.C.P. 400.1(a)(1); see also Pa.R.C.P.
    76 (defining the term “competent adult” as: “an individual eighteen years of
    age or older who is neither a party to the action nor an employee or a relative
    of a party”).
    -4-
    J-S19019-22
    Appellants did not file a responsive pleading to the complaint and,
    according to Plaintiff, on April 15, 2021, Plaintiff mailed a “notice of praecipe
    to enter default judgment” (hereinafter “Rule 237.5 Ten-Day Notice”) to all
    three named defendants. Each Rule 237.5 Ten-Day Notice declared:
    NOTICE OF PRAECIPE TO ENTER DEFAULT JUDGMENT
    TO: [Appellants]
    APRIL 15, 2021
    IMPORTANT NOTICE
    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.
    UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF
    THIS NOTICE, A JUDGEMENT [sic] MAY BE ENTERED
    AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE
    YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
    YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
    IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE
    OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU
    WITH INFORMATION ABOUT HIRING A LAWYER.
    IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE
    MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT
    AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
    PERSONS AT A REDUCED FEE OR NO FEE.
    Community Legal Service
    1410 W Eerie Ave.
    Philadelphia, PA 19140
    (215) 227-2400
    Plaintiff’s Rule 237.5 Ten-Day Notice, dated 4/15/21, at 1-2.
    -5-
    J-S19019-22
    On April 28, 2021, Plaintiff filed a praecipe to enter default judgment
    against Appellants. Plaintiff’s certification of service declared that he mailed
    a copy of the praecipe to enter default judgment to each defendant on April
    26, 2021. Further, Plaintiff attached a copy of the Rule 237.5 Ten-Day Notice
    to each praecipe to enter default judgment.
    On June 4, 2021, Appellants filed a “petition to open and/or strike
    default judgment.”     Within the petition, Appellants averred that they had
    never been served with a copy of Plaintiff’s Complaint, the Rule 237.5 Ten-Day
    Notice, or the praecipe to enter default judgment and that Appellants “were
    unaware that a complaint had been filed by [Plaintiff] and that a default
    judgment had been entered against them until June 4, 2021, when copies of
    the praecipe to enter default judgment filed by Plaintiff [were] received by
    mail from the Office of Judicial Records.” Appellants’ Petition, 6/4/21, at ¶ 8.
    Within their petition, Appellants requested that the trial court strike the
    default judgment because: “Plaintiff’s [Rule 237.5 Ten-Day Notice] does not
    provide the correct information for the Lawyer Referral and Information
    Service, namely the correct office, telephone number or address, and is not
    in Spanish;” “Plaintiff’s Notice to Defend[, in Plaintiff’s Complaint, was] not in
    the proper form required by the Rules of Civil Procedure;” Appellants were
    never served with Plaintiff’s Complaint; and, “Plaintiff’s Affidavit of Service [of
    the Complaint was] defective . . . [since it did not] include the time or place
    of service, or whether the person served was [Appellant’s] agent or the person
    for the time being in charge at any office or usual place of business of
    -6-
    J-S19019-22
    [Appellants,] or a manager or clerk of [Appellants].” Id. at ¶¶ 31, 36, and
    39. Alternatively, Appellants requested that the trial court open the default
    judgment because:     Appellants were never served with Plaintiff’s Complaint,
    the Rule 237.5 Ten-Day Notice, or the praecipe to enter default judgment;
    “Plaintiff’s Affidavit of Service [of the Complaint was] defective . . . [since it
    did not] include the time or place of service, or whether the person served
    was [Appellant’s] agent or the person for the time being in charge at any office
    or usual place of business of [Appellants,] or a manager or clerk of
    [Appellants];” Appellants promptly filed their petition to open “following
    [Appellants’] receipt of actual notice of the entry of the default judgment;”
    and, Appellants “have valid and meritorious defenses to the underlying
    Complaint.” Id. at ¶¶ 52-57.
    Appellants also attached an affidavit from Erica Green to their petition,
    where Ms. Green attested that:
    On March 26, 2021, an unidentified woman delivered to me
    three envelopes addressed to Richard Coble, Esq., Michael T.
    van der Veen, Esq. and MTV Law. I signed a receipt
    presented to me by the unidentified woman after being
    handed the three envelopes. . . .
    Inside of each envelope was a one-page letter dated March
    10, 2021, which was signed by the Plaintiff. . . . No other
    documents were contained within the aforesaid envelopes.
    No copies of the Complaint filed in this matter by the Plaintiff
    were contained within the aforesaid envelopes.
    ...
    -7-
    J-S19019-22
    I do not have authority to accept service of legal process on
    behalf of [Appellants].
    I do not act as agent, manager or clerk of [Appellants] or as
    a person in charge of any office or usual place of business of
    [Appellants].
    Affidavit of Erica Green, dated 6/10/21, at 1-2 (paragraph numbering
    omitted).
    Attached to Ms. Green’s affidavit was a photograph of each “one-page
    letter” that Appellants claimed to have received within the three envelopes
    served on March 26, 2021. The handwritten letter addressed to Appellant
    Coble declares:
    March 10, 2021
    Dear Mr. Coble,
    I sent you a letter over a month ago along with the proposed
    complaint via email and regular mail. You haven’t responded.
    I will now begin litigation of this matter.
    /s [unintelligible signature]
    Id. at Attachment. The other two handwritten, one-page letters were directed
    to the other two Appellants and are substantially similar to the above.
    On September 9, 2021, the trial court denied Appellants’ petition and
    Appellants filed a timely notice of appeal.3 Appellants raise nine claims on
    appeal:
    ____________________________________________
    3 Although damages have not yet been assessed in this case, Pennsylvania
    Rule of Appellate Procedure 311(a)(1) permits aggrieved parties such as
    Appellants to file an interlocutory appeal as of right from “[a]n order refusing
    to open, vacate, or strike off a judgment.” Pa.R.A.P. 311(a)(1). Hence, the
    (Footnote Continued Next Page)
    -8-
    J-S19019-22
    1. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    in that the court did not properly consider the pleadings and
    filings of record when ruling on the Petition to Strike Default
    Judgment[?]
    2. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since the record contains fatal defects which affect the
    validity of the default judgment and entitle [Appellants] to
    relief as a matter of law[?]
    3. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since fatal defects appear on the face of the record which
    deny the Office of Judicial Records the authority to enter
    judgment against [Appellants?]
    4. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    in that the Office of Judicial Records did not have the
    authority to enter default judgment against [Appellants?]
    5. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    ____________________________________________
    order denying Appellants’ petition to open and/or strike the default judgment
    is immediately appealable under Rule 311(a)(1). See Mother’s Restaurant
    Inc. v. Krystkiewicz, 
    861 A.2d 327
    , 335 (Pa. Super. 2004) (en banc) (“the
    plain language of [the Pennsylvania Rules of Civil Procedure] demonstrates
    that the entry of the default judgment occurs . . . when the prothonotary
    recognizes that a litigant has filed a proper praecipe for the entry of a default
    judgment and when the prothonotary enters a default judgment on the
    docket. The assessment of legal damages . . . is not a precursor to the proper
    entry of a default judgment”).
    -9-
    J-S19019-22
    since Plaintiff failed to comply with Pa.R.C.P. 237.1, Pa.R.C.P.
    237.5 and Local Rule 1018.1[?]
    6. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since Plaintiff failed to comply with Pa.R.C.P. 1018.1 and
    Local Rule 1018.1[?]
    7. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since Plaintiff failed to serve [Appellants] in accordance with
    the Pennsylvania Rules of Civil Procedure[?]
    8. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since the lack of service upon [Appellants] deprived [the trial
    court] of jurisdiction over [Appellants] and deprived the
    Office of Judicial Records of the authority to enter a default
    judgment against [Appellants] in this matter[?]
    9. Whether the trial court erred as a matter of law and/or
    abused its discretion in denying the Petition to Open and/or
    Strike Default Judgment filed by [Appellants] in this matter,
    since the record reflects that [Appellants] promptly filed their
    Petition to Open Default Judgment, [Appellants] have a
    reasonable excuse for failing to appear and have an
    acceptable and reasonable explanation for the circumstances
    under which Plaintiff entered a default judgment against
    [Appellants?]
    Appellants’ Brief at 4-6.
    Appellants’ first set of issues contend that the trial court erred when it
    denied their petition to strike the default judgment, as fatal defects or
    irregularities appear on the record. The following principles govern our review
    of such a claim:
    - 10 -
    J-S19019-22
    An appeal regarding a petition to strike a default judgment
    implicates the Pennsylvania Rules of Civil Procedure. 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.
    Green Acres Rehab. & Nursing Ctr. v. Sullivan, 
    113 A.3d 1261
    ,
    1267-1268 (Pa. Super. 2015) (quotation marks, citations, and brackets
    omitted).
    First, Appellants claim that the trial court erred when it denied their
    petition to strike the default judgment, as Plaintiff’s Rule 237.5 Ten-Day Notice
    did not “provide the correct information for the lawyer referral and information
    service.” See Appellants’ Brief at 13. We agree.
    In relevant part, Pennsylvania Rule of Civil Procedure 237.1 declares:
    (a)(2) No judgment . . . 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
    ...
    - 11 -
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    (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.
    (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.
    Pa.R.C.P. 237.1(a).
    Pennsylvania Rule of Civil Procedure 237.5 delineates the form to which
    a party must adhere when drafting the written, ten-day notice of intention to
    file a praecipe for default judgment. Rule 237.5 declares:
    The notice required by Rule 237.1(a)(2) shall be substantially
    in the following form:
    (CAPTION)
    To: ___________________________
    (Defendant)
    Date of Notice: ________________
    IMPORTANT NOTICE
    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.
    UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF
    THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU
    WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY
    OR OTHER IMPORTANT RIGHTS.
    YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE.
    IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE
    - 12 -
    J-S19019-22
    OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU
    WITH INFORMATION ABOUT HIRING A LAWYER.
    IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE
    MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT
    AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
    PERSONS AT A REDUCED FEE OR NO FEE.
    ___________________________
    (Name of Office)
    ___________________________
    (Address of Office)
    ___________________________
    (Telephone Number)
    _________________
    (Signature of Plaintiff or Attorney)
    _________________
    (Address)
    Note: The office shall be that designated by the court under
    Rule 1018.1(c).
    Pa.R.C.P. 237.5 and Note.
    As is evident, Rule 237.5 requires that each Rule 237.5 Ten-Day Notice
    inform the opposing party of a particular agency “that may offer legal services
    to eligible persons at a reduced fee or no fee.” See 
    id.
     The note to Rule
    237.5 declares that this agency “shall be that designated by the court under
    Rule 1018.1(c).” 
    Id.
     at Note. Rule 1018.1(c), in turn, declares:
    (c) Each court shall by local rule designate the officer,
    organization, agency or person to be named in the notice
    from whom information can be obtained.
    Pa.R.C.P. 1018.1(c).
    - 13 -
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    In accordance with Rule 1018.1(c), the Philadelphia County Court of
    Common Pleas promulgated Philadelphia Civil Rule 1018.1. This rule declares:
    (A) The agency to be contacted for legal help as provided in
    Pa.R.C.P. 1018.1(b) is:
    Philadelphia Bar Association
    Lawyer Referral and Information Service
    One Reading Center
    Philadelphia, Pennsylvania 19107
    Telephone (215) 238-1701
    Phila. Civ. R. 1018.1(A).
    As this Court has explained, “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.” Penn Nat’l
    Mut. Cas. Ins. Co. v. Phillips, ___ A.3d ___, 
    2022 WL 1548503
    , at *8 (Pa.
    Super. 2022). This Court has held that, when the Rule 237.5 Ten-Day Notice
    does not substantially comply with Rule 237.5, there exists a “fatal defect on
    the face of the record pursuant to Rule 237.1.” Oswald v. WB Public Square
    Assocs., LLC, 
    80 A.3d 790
    , 796 (Pa. Super. 2013) (quotation marks and
    citations omitted).   Since “a record which reflects a failure to comply with
    [Rule] 237.1 is facially defective[, such a record] cannot support a default
    judgment.” 
    Id.
     (quotation marks, citations, and brackets omitted). Further,
    where the record reflects a failure to comply with Rule 237.1, the prothonotary
    lacks authority to enter a default judgment and any such judgment entered is
    “void ab initio.” 
    Id. at 797
    .
    - 14 -
    J-S19019-22
    For example, in Phillips, this Court held that a Rule 237.5 Ten-Day
    Notice did not substantially comply with Rule 237.5, where the notice
    declared:   “You are in default because you have failed to plead to the
    Complaint filed in the above-captioned matter.” Phillips, 
    2022 WL 1548503
    ,
    at *8. We observed that the language in this Rule 237.5 Ten-Day Notice
    deviated from the requirements of Rule 237.5, as Rule 237.5 demanded that
    the notice 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.” 
    Id.
    The Phillips Court held that the Rule 237.5 Ten-Day Notice in its case
    did not substantially comply with Rule 237.5 – and that, as a result, the
    prothonotary was not authorized to enter the default judgment – because the
    language was too general and failed to “expressly direct[] the defendant to
    defend by entering an appearance (either personally or by attorney) and by
    filing with the court in writing defenses or objections to the claims in the
    complaint.” Id. at *9 (quotation marks and citations omitted). Further, we
    explained: “[s]ince the [Rule 237.5 Ten-Day 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.” Id. (quotation marks and citations omitted); see
    also Oswald, 
    80 A.3d at 796
     (holding that the Rule 237.5 Ten-Day Notice did
    not substantially comply with the rule, where the notice merely informed the
    - 15 -
    J-S19019-22
    opposing party: “You are in default because you have failed to take action
    required of you in this case”); City of Phila. v. David J. Lane Adver., Inc.,
    
    33 A.3d 674
     (Pa. Cmwlth. 2011) (same); AmeriChoice Fed. Credit Union
    v. Ross, 
    135 A.3d 1018
     (Pa. Super. 2015) (same).
    Here, Plaintiff’s Rule 237.5 Ten-Day Notice did not substantially comply
    with Rule 237.5, as it instructed Appellants to contact a legal referral service
    which was not prescribed by the trial court.       Indeed, Plaintiff’s Rule 237.5
    Ten-Day Notice declared that Appellants could obtain information about legal
    service providers from “Community Legal Service,” located at “1410 W Eerie
    Ave. Philadelphia, PA 19140,” and with the telephone number of “(215)
    227-2400.”    Plaintiff’s Rule 237.5 Ten-Day Notice, dated 4/15/21, at 1-2.
    However, Philadelphia Civil Rule 1018.1 specifically declares that “[t]he
    agency to be contacted for legal help” for purposes of Rule 237.5          is the
    “Philadelphia Bar Association, Lawyer Referral and Information Service,”
    located at “One Reading Center, Philadelphia, Pennsylvania 19107,” and with
    the telephone number of “(215) 238-1701.” Phila. Civ. R. 1018.1(A).
    The explanatory comment to Rule 1018.1 explains why the notice must
    correctly identify the proper legal aid society:
    New Rule 1018.1 “Notice to Defend”, adopted January 23,
    1975 and effective July 1, 1975, and the related amendments
    to the other Rules, had their origin in a request from the
    Attorney General for amendment to Pennsylvania's historic
    “Notice to Plead” rule which required the notice to be
    “endorsed” upon a complaint to which a responsive answer is
    required.
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    J-S19019-22
    The Attorney General suggested that the legalistic and
    uniformative nature of the “Notice to Plead” was inadequate
    in the case of “uneducated, uninformed and unsophisticated
    defendants” and raised due process problems, particularly in
    the case of Spanish-speaking minority groups who had little,
    if any, knowledge of the English language. . . .
    The Attorney General also suggested that, with the extension
    of legal aid services to practically every county of the
    Commonwealth under federally financed programs, the
    “Notice to Defend” should also note the availability of legal
    services or legal reference agencies. The right of indigents to
    representation in civil actions which lead to deprivation of
    “substantial rights” has been held to raise due process and
    equal protection questions where the court fails to assign
    counsel. In re Adoption of R.I., 
    455 Pa. 29
     (1973). A
    survey submitted by the Attorney General revealed that in
    Philadelphia large numbers of default judgments were
    entered against defendants who did not understand
    what was required of them or where to turn for legal
    help.
    Pa.R.C.P. 1018.1 cmt (emphasis added).4
    The requirement that the notice inform a defaulting party about a locally
    designated legal referral agency is, thus, an extremely important provision
    and is required because, historically, “large numbers of default judgments
    were entered against defendants who did not understand what was required
    ____________________________________________
    4 In Laudenberger v. Port Authority of Allegheny County, the
    Pennsylvania Supreme Court explained:
    These explanatory notes have not been officially adopted or
    promulgated by [the Pennsylvania Supreme Court], nor do
    they constitute part of the rule. However, they indicate the
    spirit and motivation behind the drafting of the rule, and they
    serve as guidelines for understanding the purpose for which
    the rule was drafted.
    Laudenberger v. Port Auth., 
    436 A.2d 147
    , 151 (Pa. 1981).
    - 17 -
    J-S19019-22
    of them or where to turn for legal help.”          See 
    id.
       Given that a default
    judgment was entered in this case, where Plaintiff’s Rule 237.5 Ten-Day Notice
    misinformed Appellants about the legal referral agency prescribed by the trial
    court pursuant to Pa.R.C.P. 1018.1 and Phila. Civ. R. 1018.1(A), we must
    conclude that the face of the record reveals that Plaintiff’s Rule 237.5 Ten-Day
    Notice does not substantially comply with Rule 237.5.5 As such, there exists
    a “fatal defect on the face of the record pursuant to Rule 237.1.” Oswald, 
    80 A.3d at 796
    .      The prothonotary thus lacked authority to enter the default
    judgment in this case and the default judgment is void ab initio. We therefore
    vacate the trial court’s order and remand for further proceedings.6
    Order vacated. Case remanded. Jurisdiction relinquished.
    ____________________________________________
    5 Appellants are two attorneys and a law firm. One might infer that Appellants
    are ineligible for legal aid or that they knew where to turn for legal
    representation – although no evidence exists to support these inferences.
    Regardless, a petition to strike a default judgment looks to “the face of the
    record” and asks whether “a fatal defect or irregularity appear[s] on the face
    of the record.” Green Acres Rehab., 113 A.3d at 1267-1268 (emphasis
    added).     Moreover, the explanatory comment to Rule 237.5 expressly
    declares: “Rule 237.5 prescribes the form of notice when a judgment by
    default is sought. Each form of notice is universal, applying to all plaintiffs
    or defendants as the case may be, whether represented or not and without
    distinction as to their degree of education or sophistication. As in Rule
    1018.1, no attempt is made to apply the notices selectively based on
    the nature of the action or party involved.” Pa.R.C.P. 237.5 cmt.
    (emphasis added).
    6   In light of our disposition, Appellants’ remaining issues are moot.
    - 18 -
    J-S19019-22
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/14/2022
    - 19 -
    

Document Info

Docket Number: 2092 EDA 2021

Judges: Olson, J.

Filed Date: 7/14/2022

Precedential Status: Non-Precedential

Modified Date: 12/13/2024