Maiorana v. Farmers & Merchants Bank

466 A.2d 188, 319 Pa. Super. 338, 1983 Pa. Super. LEXIS 4004
CourtSupreme Court of Pennsylvania
DecidedSeptember 30, 1983
Docket307
StatusPublished
Cited by11 cases

This text of 466 A.2d 188 (Maiorana v. Farmers & Merchants Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Maiorana v. Farmers & Merchants Bank, 466 A.2d 188, 319 Pa. Super. 338, 1983 Pa. Super. LEXIS 4004 (Pa. 1983).

Opinions

McEWEN, Judge:

Appellants have taken this appeal from an order that (1) granted the petition of appellee to strike the default judgment upon which the Prothonotary had, pursuant to the praecipe of appellants, assessed damages in the amount of $225,800.00 or, (2) in the alternative, in the event that the order striking the judgment would be reversed during appellate review, granted the petition to open that default judgment. We affirm.

Appellee, in 1973 loaned, to appellant Pocono Futures, Inc., the sum of $45,000.00 which was partially secured by a mortgage on certain real estate situate both in Wayne County and Pike County, Pennsylvania, and which was further secured by the agreement of the individual appellants to serve as surety. Appellee proceeded to foreclosure and to execution upon the real estate, a proceeding that apparently had become the subject of intense litigation that was not concluded at the time of the entry of the order that is the subject of this appeal. Attorney M.E. Jones, a partner in a Wilkes-Barre law firm retained by appellee, represented appellee in the foreclosure proceeding, while Attorney H.M. Biglan of Susquehanna County represented appellants.

Attorney Biglan filed on March 16, 1977, in the Common Pleas Court of Philadelphia County, the complaint upon which the default judgment we here study was entered. That complaint is aptly described in the opinion of the hearing judge, as follows:

The Complaint, while captioned as one in assumpsit is on examination of its contents manifestly a Complaint sound[341]*341ing in trespass. It alleges vaguely that the unspecified ‘entire interests of the plaintiffs including a second mortgage in the sum of $200,000.00’ were ‘placed in jeopardy’, because of various fraudulent acts and misrepresentations by the Bank which is the defendant in the Philadelphia action. The Complaint accuses the defendant of malicious interference of contract, conspiracy, and other tortious conduct, including the allegation that the defendant and others’ ... tortiously and criminally removed the recorded documents from the Courthouse to conceal records from the defendants (in the Wayne County action) in order to prevent plaintiffs from learning that a default judgment was illegally entered against them.’
While the Complaint alleges various tortious acts by the defendant arising out of the Wayne County mortgage transaction and other alleged written and oral agreements, the written agreements are without explanation not annexed to the Complaint. There is absolutely nothing in the Complaint which would permit anyone to discern or compute the sum of the alleged damages. Moreover, the claim for relief at the end of the Complaint is the usual ad damnum clause used in trespass actions, “Wherefore plaintiffs hearby (sic) demand judgment in excess of $10,000.00.”

Appellee filed on April 18, 1977, preliminary objections to the complaint which asserted, in summary: a demurrer, a motion to strike, a motion for a more specific pleading and a motion to dismiss by reason of the pendency of the identical claim in a prior suit, specifically, a counterclaim that had been asserted by appellants in the Wayne County proceeding. The preliminary objections did not, however, comply with the requirements of the Rules of the Common Pleas Court of Philadelphia County, as a result of which the preliminary objections were dismissed by a routine order of the motion judge entered on July 6, 1977. The order of dismissal was docketed one week later on July 13, 1977, with the notation that notice of the entry thereof had, pursuant to Pennsylvania Rule of Civil Procedure 236, been [342]*342given by ordinary mail to all counsel of record, which would include Attorney Biglan for appellants and Attorney Jones for appellee. The docket reflects that no action was taken on behalf of either party for the following twenty-five (25) months until new counsel for appellants filed a praecipe for the entry of a default judgment, a praecipe for the assessment of damages in the amount of $225,800.00, and a praecipe to commence execution. The record indicates that new counsel did not file a praecipe for entry of his appearance, did not file a praecipe for the withdrawal of the appearance of Attorney Biglan and did not advise Attorney Jones, who was counsel of record, of his intention to proceed to a default judgment; in fact, at the time of the entry of the default judgment, approximately twenty-eight (28) months had elapsed since any counsel for any party to the suit had taken any action of any type. Appellants also garnished on September 5, 1979, the assets of appellee in the Provident Bank. Appellee proceeded to file a petition to open the default judgment on September 20, 1979, and thereafter also filed a petition to strike the judgment.

It is well established that the Prothonotary, in entering a default judgment, acts in a ministerial, and not a judicial capacity, and unless a default judgment is clearly authorized by the Pennsylvania Rules of Civil Procedure, the default judgment is a nullity and will be stricken from the record. Phillips v. Evans, 164 Pa.Super. 410, 65 A.2d 423 (1949); P.L.E.Judgment § 103. See generally N.H. Weidner, Inc. v. Berman, 310 Pa.Super. 590, 456 A.2d 1377 (1983). The Prothonotary here, pursuant to the praecipe of appellant, directed that “judgment [be] entered in favor of the plaintiff and against the defendant and damages assessed in the amount of $225,800.00 and costs”. Pennsylvania Rule of Civil Procedure No. 1037(b), 42 Pa.C.S.A., provides:

RULE 1037. JUDGMENT UPON DEFAULT OR ADMISSION. ASSESSMENT OF DAMAGES
(b) The prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file [343]*343within the required time an answer to a complaint which contains a notice to defend or for any relief admitted to be due by the defendant’s pleadings. The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages.

An examination of the complaint reveals that the assessment of damages directed by the Prothonotary was not authorized by Rule 1037(b) since the complaint did not express a claim for a sum certain or a sum which could be made certain by computation. Appellants themselves so indicate since the ad damnum clause of the complaint prays: “Wherefore plaintiffs hereby demand judgment in excess of $10,000.00”. As the learned Judge Francis A. Biunno noted in his able opinion:

[W]e must agree that the Complaint in none of its allegations sets forth a sum certain or facts upon which the sum claimed could be calculated.
The plaintiffs contend that the amount of the judgment is supported by the allegation in paragraph 13 of the Complaint which avers that:
‘13. Plaintiffs’ entire interests were placed in jeopardy including the $200,000 second mortgage referred to in paragraph 9.’ (emphasis provided).
It is clear that an allegation that a certain amount was ‘placed in jeopardy’ is not

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Maiorana v. Farmers & Merchants Bank
466 A.2d 188 (Supreme Court of Pennsylvania, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
466 A.2d 188, 319 Pa. Super. 338, 1983 Pa. Super. LEXIS 4004, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maiorana-v-farmers-merchants-bank-pa-1983.