Arreguin, M. v. Kinsing, C.

2025 Pa. Super. 287

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2025
• Docket: 889 EDA 2023
• Status: Published

Opinion

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2025 PA Super 287

MARIA ESTHER ARREGUIN AND : IN THE SUPERIOR COURT OF P.A.B., A MINOR BY PARENTS AND : PENNSYLVANIA NATURAL GUARDIANS MARIA : ESTHER ARREGUIN AND GAMALIEL : ARREGUIN RUIZ AND J.A.B., MINOR : BY PARENTS AND NATURAL : GUARDIANS MARIA ESTHER : ARREGUIN AND GAMALIEL : ARREGUIN RUIZ AND MARIA : No. 889 EDA 2023 ESTHER ARREGUIN AND GAMALIEL : ARREGUIN RUIZ (H/W) AND : GAMALIEL ARREGUIN RUIZ : : : v. : : : CHARLES KINSING : : : APPEAL OF: P.A.B., A MINOR, BY : MARIA ESTHER ARREGUIN, PARENT : AND NATURAL GUARDIAN :

Appeal from the Judgment Entered May 18, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160701153

BEFORE: LAZARUS, P.J., BOWES, J., PANELLA, P.J.E., DUBOW, J., McLAUGHLIN, J., KING, J., SULLIVAN, J., BECK, J., and LANE, J.

DISSENTING OPINION BY SULLIVAN, J.: FILED DECEMBER 23, 2025

After a thorough review of the record and the trial court opinion in this

matter, I believe the mandatory and unambiguous language of Pennsylvania

Rule of Civil Procedure 238(c) was correctly applied by the trial court in this

matter. Therefore, I respectfully dissent. J-E01005-25

As the majority notes, the interpretation of procedural rules is a de novo

review and the scope of review is plenary; however, to the extent that the

question before this Court involves an exercise of the trial court's discretion in

denying the motion for delay damages, our standard of review is abuse of

discretion. See Brown v. Quest Diagnostics Clinical Laboratories, Inc.,

209 A.3d 386, 389 (Pa. Super. 2019).

As highlighted in the Majority Opinion, “the object of all interpretation

and construction of rules is to ascertain and effectuate the intention of the

Supreme Court.” Majority Opinion at 8, citing Pa.R.J.A. 108(a) “Construction

of Rules.” In the next subsection, the rule plainly states when the words of a

rule are “clear and free from all ambiguity” the letter of the rule is not to be

disregarded under the pretext of pursuing its spirit. Pa.R.J.A. 108(b). These

same administrative rules note there is a presumption where “the Supreme

Court has construed the language used in a rule or statute, the Supreme Court

in promulgating a rule on the same subject matter which employs the same

language intends the same construction to be placed upon such language.”

Pa.R.J.A. 109(e) (emphases added).

Furthermore, as it relates to interpretation of clear and unambiguous

language in a rule or statute, the law is well settled,

[W]e construe every rule, if possible, to give effect to all of 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. It is only when the words of a rule are not explicit that we may ascertain the intent by reference to other matters . . . . As we have explained in the

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context of statutory construction, ambiguity occurs when there are at least two reasonable interpretations of the text. When we are construing and giving effect to the text, we should not interpret statutory words in isolation[] but must read them with reference to the context in which they appear.

HTR Restaurants, Inc. v. Erie Ins. Exchange, 307 A.3d 49, 58 (Pa. 2023)

(internal quotation marks and footnotes omitted, emphasis added).

The majority acknowledges that Pa.R.Civ.P. 238(c) is not ambiguous

and mandates a plaintiff shall file a written motion seeking delay damages

which itself shall include a notice to defend which uses the specific language

delineated in the rule. See Majority Opinion at 6. The Majority recognizes

Rule 238(c) is clear, not ambiguous, but nevertheless disregards the

mandatory language of the rule and this Court’s precedent concerning the

failure to include required notices to defend (or similar notices) when

mandated in the Rules of Civil Procedure. See e.g., Pa.R.Civ.P. 237.1(2)

(requiring written notice of intent to file for a praecipe for entry of a judgment

of non pros prior to entry of the judgment); Pa.R.Civ.P. 237.5 (dictating the

form of the notice); Pa.R.Civ.P. 1018.1 (mandating a complaint shall begin

with a notice to defend); Pa.R.Civ.P. 1026(a) (emphasis added) (providing

“every pleading subsequent to the complaint shall be filed within twenty days

after service of the preceding pleading, but no pleading need be filed

unless the preceding pleading contains a notice to defend or is

endorsed with a notice to plead”); Pa.R.Civ.P. 1920.12(c) (mandating that

a complaint in divorce must include a notice that substantially complains with

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Pa.R.Civ.P. 1920.71); Pa.R.Civ.P. 3279(a) (providing a petition for a

deficiency judgment “shall begin with a notice to defend”); Pa.R.Civ.P.

3282(b) (stating a petition to fix fair market value “shall begin with a notice

to defend”). Instead, the Majority essentially bypasses the rule’s mandate

and applies a non-mandatory equitable rule1 in the form of a “substantial

compliance” test without legal support, under the guise of assessing whether

Pa.R.Civ.P. 126, a discretionary rule, can excuse Arreguin’s failure to comply

with the written notice mandate of Rule 238(c). See id. at 6-9.

It is well settled the “touchstone” of statutory, or in this case rule,

interpretation is “where a [rule] is unambiguous, the judiciary may not ignore

the plain language under the pretext of pursuing its spirit[.]” Grossi v.

Travelers Personal Ins. Co., 79 A.3d 1141, 1161 (Pa. Super. 2013)

(citations and internal quotation marks omitted); see also Sivick v. State

Ethics Commission, 238 A.3d 1250, 1264 (Pa. 2020) (same; also stating,

“we must not overlabor to detect or manufacture ambiguity where the

language reveals none”). Perhaps because the Majority assents that the

language of Pa.R.Civ.P. 238(c) is mandatory and unambiguous, it takes no

notice of this well-established touchstone; however, it bears repeating that

the only reasonable construction of “shall” in Rule 238(c) is that to seek delay

damages, a litigant may file a motion which shall begin with the required

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1 See Majority Opinion at 8 (explicitly considering whether the failure to comply with Pa.R.Civ.P. 238 resulted in prejudice).

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notice. See Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa.

1997) (stating “[b]y definition, ‘shall’ is mandatory”). See also Corestky v.

Bd. of Com'rs of Butler Tp., 555 A.2d 72, 74 (Pa. 1989) (holding the use of

the word “shall” in a statute is mandatory, clear, and unambiguous).

While our Courts have not directly addressed whether the inclusion of

the written notice to defend is mandatory in the specific context of Pa.R.Civ.P.

238(c), we have certainly addressed the issue of rule-based written notice

requirements in other contexts, and a well-established body of law exists.

Pennsylvania jurisprudence has overwhelmingly concluded in analogous rules

that the failure to include the prescribed written notice results in a fatally

defective pleading.

My concerns are two-fold: 1) we, the intermediate appellate court,

whose job is to correct errors below, are making law, a task that is beyond

our legal authority; and 2) in crafting a specific outcome based on these

specific facts, we are creating an ad hoc approach that disregards a rule-

based, unambiguous mandate intended by our Supreme Court to “satisfy the

procedure that [they] have adopted to enhance the functioning of the trial

courts,”2 thus, creating a slippery slope that neither honors the jurisprudential

concept of unambiguous statutory/rule-based interpretation or the body of

law developed regarding other rules of civil procedure that require written

2 Womer v. Hilliker, 908 A.2d 269, 278 (Pa. 2006).

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notices. As a learned colleague recently penned in a different context, “the

possible fact patterns are endless and lead down a slippery slope . . . we are

not willing to descend.” Wentworth v. Steinmetz, --- A.3d ---, 2025 WL

3157571 at *5 (Pa. Super. 2025). If the Supreme Court wishes to retract the

requirement of written notice for motions for delay damages, they have the

power to do so, and I will gladly apply the revised rule when that amendment

is adopted. Otherwise, the current jurisprudence does not permit the

application of a permissive rule over a mandatory rule that is clear and

unambiguous as it pertains to written notice. In order for Pa.R.Civ.P. 126 to

apply, a party is required to file a written notice pursuant to the rule before

the equities of Rule 126 can even be considered.

For example, in Lines v. Timothy Britton Construction Services,

Inc., 342 A.3d 1 (Pa. Super. 2025), the plaintiffs filed a civil complaint against

the defendant that did not include the required notice to defend; therefore,

the defendant did not respond to the pleading. See Lines, 342 A.3d at 1.

Plaintiffs sought and obtained a default judgment against the defendant. See

id. Subsequently, the parties consented, in writing, to strike the default

judgment and further agreed that defendant would file a responsive pleading

within twenty days. See id. at 3. When the defendant did not do so, plaintiffs

filed a second default judgment. Plaintiffs, however, failed to provide a notice

before filing the default judgment as mandated by Pa.R.Civ.P. 237.1. See

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id.3 Despite this failure, the trial court denied defendant’s motion to strike

and/or open the default judgment. See id.

On appeal this Court reversed. We recognized that Rule 237.1 notice

was initially provided but, critically, the trial court struck the first default

judgment and there was thus “no longer a triggering Rule 237.1 notice

advising the defendant that failure to comply with the consent order would

result in default judgment.” Id. at 6. We concluded that the order striking

the first default judgment resulted in “a new proceeding wherein [defendants

were] not advised that default judgment was being sought.” See id.

Accordingly, the failure to comply with the mandatory notice provision of

Pa.R.Civ.P. 237.1 required the reversal of the trial court’s ruling refusing to

strike and/or open the default judgment. See id.

While the Rule 237.1 notice at issue in Lines is not labeled a “Notice to

Defend,” it is analogous to such a notice. Further, in insisting on strict

compliance with Pa.R.Civ.P. 237.1, a mandatory rule, in Lines we specifically

rejected the argument that a moving party is absolved of compliance with a

mandatory rule because the opposing party was represented by counsel and

knew about the need to defend or answer because of a prior pleading.

Applying this reasoning to the matter before us, the Majority’s assertion that

3 The rule provides “A copy of the notice shall be attached to the praecipe.”

Pa.R.Civ.P. 237.1(a)(3).

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failure to comply with the mandatory rule is excused because the other party

knew of the delay damages motion is similarly flawed.

In another recent decision, Gould v. Wagner, 316 A.3d 634 (Pa. Super.

2024), this Court construed whether a generic notice to plead could act as a

substitute for the specific notice to defend mandated by Pa.R.Civ.P. 3279(a)

and 3282(b), which concern the commencement of proceedings under the

Deficiency Judgment Act (“DJA”). See Gould, 316 A.2d at 638.4 This Court

concluded the use of “shall” in Pa.R.Civ.P. 3279(a) and 3282(b) was

mandatory and unambiguous and did not bear two reasonable interpretations.

See Gould, 316 A.3d at 641. Thus, we held the failure to attach a notice to

defend that did not substantially comply with Pa.R.Civ.P. 3279(a) and 3282(b)

constituted a facial and fatal defect in the pleading. See id. at 644-45.

Similarly, this Court has held that failure to comply with Pa.R.Civ.P.

1018.1, which provides “[e]very complaint filed by a plaintiff and every

complaint filed by a defendant against an additional defendant shall begin

with a notice to defend in substantially the form set forth in subdivision (b)[]”

(emphasis added), failure to include the written notice constitutes a facial

defect in the pleadings to which the defendant is not required to respond. See

4 Rule 3279(a) provides proceedings under the DJA “shall be commenced by

filing a petition which shall begin with the notice to defend and set forth the averments required by Rule 3282 or Rule 3288.” Pa.R.Civ.P. 3279(a) (emphasis added). Rule 3282(b) provides, in pertinent part, “The petition shall begin with a notice to defend substantially in the following form[.]” Pa.R.Civ.P. 3282(b) (emphasis added).

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Mother’s Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 338 (Pa. Super. 2004)

(en banc) (stating “[i]n view of the plain language of Rule 1018.1, we find

that every complaint, including amended complaints, must include Notice to

Defend.”) (emphasis added); Lewandowski v. Crawford, 222 A.2d 601, 601

(Pa. Super. 1966) (addressing Pa.R.Civ.P. 1026, establishing the time for

filing, and stating “[f]ailure to endorse a pleading with notice to answer

relieves the opposite party of the obligation to file a responsive pleading, and

in consequence, no default judgment can be entered against him”). Again,

previous knowledge of litigation does not excuse the written notice mandate.

The Majority does not discuss these precedents and fails to articulate

why notices to defend in the context of delay damages should be treated

differently from mandatory notice provisions in other contexts. See Majority

Opinion, at 5-9.

I find the Majority’s reliance on Pa.R.Civ.P. 126(a) to excuse compliance

with the mandatory language in Rule 238(c) equally concerning. See Majority

Opinion, at 7-8. The Majority explicitly acknowledges that Rule 238(c)

includes mandatory language that is clear and unambiguous. See id. at 5-6.

Critically, Pa.R.Civ.P. 126(a) does not include mandatory language: it uses

the word “may”, thus leaving its application to the discretion of the trial court.

See id. at 6 (citing Rule 126(a)). The Majority does not cite to any legal

authority that supports its position. See id.

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The Majority relies primarily on the Supreme Court’s language in

Womer v. Hilliker, 908 A.2d 269, 276 (Pa. 2006), but the Supreme Court’s

holding in Womer is incongruous with the Majority’s conclusion here. See

id. at 6-7. In Womer, the plaintiff in a medical malpractice suit did not file

the certificate of merit (“COM”) that Pa.R.Civ.P. 1042.3 states “shall” be filed

with the complaint. See Womer, 908 A.2d at 272; Pa.R.Civ.P. 1042.3(a)

(emphasis added). The trial court granted the defendant’s motion for a

judgment of non pros and denied plaintiff’s subsequent motion to open. See

id. at 272-73. On appeal, this Court overturned the trial court’s decision and

concluded, with reference to Pa.R.Civ.P. 126, it was “not wholly unreasonable”

for the plaintiff to conclude he had substantially complied with Rule 1042.3 by

eventually providing a copy of an expert’s report with discovery rather than

filing a certificate of merit. Id. at 274-75. Our Supreme Court reversed this

Court, concluding that the mandatory Rule 1042.3 language was not subject

to the equitable exception allowed by Rule 126. See id. at 278-80. In so

doing, the Supreme Court discussed the type of procedural missteps which

are excusable, such as mistitling a document.5 See id. at 277. The Supreme

Court specifically rejected the plaintiff’s argument that so long as he complied

5 See Deek Investment, L.P. v. Murray, 157 A.3d 491, 494 (Pa. Super. 2017) (applying Rule 126 where the appellants followed rule of appellate procedure and filed the required 1925(b) statement but made a procedural misstep when only one party actually signed the required statement).

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with the spirit of the rule in question, he satisfied Rule 126’s requirement of

“substantial compliance” and was excused from obeying the letter of the rule

noting when a rule is “clear and unambiguous in its mandate” a party must

act in some way to comply with the mandate before Rule 126 can be applied.

See id. at 278 (“the equitable doctrine we incorporated in[]to Rule 126 is one

of substantial compliance, not one of no compliance” (emphasis added)).

Our Supreme Court concluded the trial court “acted well within its discretion”

in not excusing strict compliance with Rule 1042.3 and reversed this Court.

See id. at 280. Thus, the Supreme Court has clearly rejected the theory

espoused in the Majority Opinion that Rule 126 applies even when a party

ignores a rule’s mandatory requirements.6 Said another way, a party cannot

bypass the clear and unambiguous mandates in a rule and then invoke Rule

6By contrast, in Green Acres Rehabilitation and Nursing Center v. Sullivan, 113 A.3d 1261, 1271-72 (Pa. Super. 2015), the plaintiff served notice of default judgment, the notice itself was “virtually identical to the language set forth in current Rule 237.5”, albeit the praecipe was mistakenly entitled “Motion for Final Judgment of Default” and referenced a New Jersey rule inapplicable to the Pennsylvania litigation.

On those facts, this court held the equity principles of Rule 126 applied because notice was drafted, and served, and its language substantially complied with the rule requiring written notice. This action to comply with the mandatory notice was clearly a “procedural misstep” but not a failure to comply. By contrast, in Womer, the Supreme Court noted the failure to comply with the mandatory language of a rule (i.e. failure to file a required COM at all), constituted a disregard of the rules because the party assumed the power to determine the rules that applied to them instead of satisfying the procedures adopted to “enhance the functioning of the trial courts.” See Womer, 908 A.2d at 278.

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126. A party must at least attempt to comply with the applicable rule’s clear

mandate before seeking to invoke the equitable nature of Rule 126.

This same principle requiring strict compliance with statutes, rules, and

other legal documents that contain mandatory language is demonstrated by

numerous published and unpublished 7 decisions by judges on this Court across

every area of law. See e.g. Driscoll v. Arena, 213 A.3d 253, 257-58 (Pa.

Super. 2019) (en banc) (overturning trial court’s grant of a motion to open or

strike a confessed judgment concluding, in part, that Pa.R.Civ.P. 2959(a) is

“explicitly mandatory” and compliance with it cannot be excused absent

“compelling reason[]”); Nottingham v. Miele, 317 A.3d 571 (Pa. Super.

2024) (unpublished memorandum at *4) (dismissing appeal of the trial court’s

granting of a judgment of non pros in his medical malpractice cased based

upon appellant’s failure to comply with the mandatory language of Pa.R.Civ.P.

1042.3); Presky v. Mainline Gastroenterology Associates, 299 A.3d 886

(Pa. Super. 2023) (unpublished memorandum at *2) (discussing Rule 3051(a)

and affirming trial court’s denial of a motion to strike/open based on the failure

to comply with its mandatory language).

The Majority does not point to any legal support for departing from the

long-standing principle of requiring compliance with rules containing

mandatory language or excusing the complete absence of a required written

7 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of

Superior Court filed after May 1, 2019, may be cited for persuasive value).

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notice. See Majority Opinion at 6-9. Given our Supreme Court’s rationale in

Womer, I cannot support this Court’s willingness to ignore Arreguin’s

wholesale dismissal of a mandatory notice provision in a rule, to apply a

permissive equitable rule. I also find the application of equitable relief to

Arreguin particularly concerning in light of Arreguin’s failure to seek any relief

below by, for example, moving to file an amended motion nunc pro tunc.

Lastly, in the absence of legal support for the Majority’s conclusion in

this matter, I am concerned the Majority is moved by sympathy for the

undeniably tragic circumstances underlying this case. I am not without

sympathy, but to upend or depart from bright-line statutory interpretation

principles because of a very sympathetic set of facts affects more than just

this matter going forward. As a colleague articulated recently in a concurring

opinion, (joined by both judges in the majority of the panel), the

inappropriateness of ignoring mandatory law because of sympathy for a

particular party and how so doing negatively affects the stature of the courts.

See Penn Sycamore Apts., Inc. v. Brooks, --- A.3d ---, 2025 WL 2745687,

at *7 (Pa. Super. September 25, 2025). The concurrence stated that

compliance with mandatory rules and requirements:

cannot be disregarded in favor of the personal beliefs of any particular jurist. When a judge ignores the clear mandate of a statute because he thinks the law is too harsh and wishes to do equity, he not only wastes the resources of the parties with a null order, he undermines the confidence of the people of this Commonwealth in the judiciary. Any temporary benefit the [] judge may have conferred onto this particular [party] . . . is outweighed by the damage to the citizenry’s faith in our system

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of government and the courts’ role therein, which is especially grave at this time of heightened threats to the rule of law and to judicial independence.

Id. Because I believe the Majority’s actions in this matter run afoul of the

above principles and are contrary to settled law, I do not believe the trial court

erred as a matter of law in dismissing the motion for delay damages and

respectfully dissent.

Judge King joins this dissenting opinion.

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