Alberta, S. v. Bigham, R.

J-S07018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SONJA ALBERTA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
REED BIGHAM :
:
Appellant : No. 411 WDA 2021
Appeal from the Order Entered February 18, 2021
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 20-009191
BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 01, 2022
Reed Bigham appeals the order denying his petition to strike or open
the default judgment entered in favor of Sonja Alberta. We reverse the order
and remand for further proceedings.
Given our disposition, a detailed factual and procedural history is
unnecessary. Alberta commenced this action to recover loans she made to
Bigham. A sheriff served Bigham with a copy of the complaint on September
22, 2020. Bigham had twenty days to respond to the complaint; hence, his
response was due on or before October 12, 2020. As no response to the
complaint had been filed as of October 12, 2020, Alberta served an Important
Notice on Bigham on that date via first class mail. The Important Notice
advised Bigham of Alberta’s intent to file a praecipe for entry of a default
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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judgment and provided Bigham with an additional ten days to act before such
judgment could be entered. Because Bigham again failed to file a response,
on October 23, 2020, Alberta filed a praecipe to enter default judgment
against Bigham. Attachments to the praecipe included a certification that the
Important Notice was mailed to Bigham, and copies of the notice and the
certificate of service for the notice, both dated October 12, 2020. On
December 12, 2020, Alberta filed a praecipe for a writ of execution of the
default judgment.
On January 7, 2021, Bigham filed a petition to strike or open the default
judgment. The trial court scheduled a hearing for February 10, 2021. At the
hearing, the court and the parties focused solely on the petition to open the
default judgment. At the conclusion of the hearing, the trial court denied the
petition to strike or open. The order denying the petition was entered on
February 18, 2021. Bigham filed a timely notice of appeal, and both he and
the trial court complied with Pa.R.A.P. 1925.
Bigham raises the following issues for our review:
1. Whether the [trial court] erred as a matter of law in failing to
strike the default judgment for [Alberta’s] failure to follow the
proper procedures to obtain a default judgment when the
Important Notice was served on [Bingham] prior to the time
required to plead to the complaint in contravention of
Pa.R.Civ.P. 237.1(a)(2)(ii), and Pa.R.Civ.P. 237.1(a)(4).
2. Whether the [trial court] erred as a matter of law in
determining that [Bigham] failed to show a meritorious
defense, that defense being the statute of limitations.
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3. Whether the [trial court] abused its discretion in refusing to
open the default judgment for failure to show a meritorious
defense.
Bigham’s Brief at 6 (issues renumbered).
Bigham’s first issue concerns his petition to strike the default judgment.
In reviewing this issue, we are guided by the following:
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, 1267-68
(Pa. Super. 2015) (internal citations, quotation marks, brackets, and
italicization omitted).
Of relevance to this appeal, Rule 237.1 prohibits the trial court
prothonotary from entering a default judgment against a party “unless the
praecipe for entry includes a certification that a written notice of intention to
file the praecipe was mailed or delivered . . . after the failure to plead to a
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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.” Pa.R.Civ.P. 237.1(a)(2)(ii) (emphasis added).
Here, Bigham contends that Alberta failed to comply with Rule
237.1(a)(2)(ii) by mailing the Important Notice on October 12, 2020. He
claims that, rather than wait until after Bigham failed to plead to the
complaint to serve him with notice of the Important Notice, Alberta served
him with such notice during the period in which Bigham was permitted to
plead to the complaint.
The trial court agrees that, because Alberta prematurely served Bigham
with the Important Notice on the final day that he could have filed a response
to the complaint, “a fatal defect may appear of record.” Trial Court Opinion,
8/9/21, at unnumbered 2.
Based on our review of the record, we conclude that Alberta prematurely
mailed the Important Notice to Bigham. Given that Bigham had until October
12, 2020, to respond to the complaint, the first day on which Alberta could
have mailed or served the Important Notice was October 13, 2020.
We further conclude that this fatal defect or irregularity was apparent in
the record at the time the default judgment was entered, as the Important
Notice and the certificate of service for the notice, both dated October 12,
2020, were attached to Alberta’s praecipe to enter default judgment.
Therefore, as the prothonotary lacked authority to enter the default judgment,
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it is void ab initio. Accordingly, the trial court should have granted the petition
to strike the default judgment. We therefore reverse the order denying the
petition to strike and remand for further proceedings.
Given our disposition of Bigham’s first issue, we need not address his
remaining issues.
Order reversed, case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/01/2022
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