J-S29017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAWRENCE JOSEPH ROOKS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY LABON WALKER, MANARD : DANIELS, AND PHILADELPHIA : PUBLIC AUTO, INC : No. 563 EDA 2021 : : APPEAL OF: PHILADELPHIA PUBLIC : AUTO, INC :
Appeal from the Order Entered February 19, 2021, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): No. 200400210.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 22, 2021
Philadelphia Public Auto, Inc. (“PPA”) appeals from the order denying its
petition to open the default judgment entered against it in this personal injury
action. Upon review, we strike the judgment and remand for further
proceedings.
The procedural history and relevant facts of this case are as follows. On
April 28, 2018, Anthony Labon Walker crashed head on into a vehicle driven
by Manard Daniels. Lawrence Rooks, a passenger in Daniels’ vehicle, was
injured in the accident. At the time of accident, Walker was driving a 2005
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S29017-21
Chevrolet Tahoe which he purchased from PPA. The Tahoe, however, was still
in PPA’s name. Therefore, PPA was the legal owner of the vehicle.
On April 7, 2020, Rooks filed a complaint in this personal injury action
against Walker, Daniels, and PPA. On June 20, 2020, Rooks served PPA with
a copy of the complaint by leaving it with a clerk at PPA’s place of business at
5618-42 Woodland Avenue, Philadelphia, Pennsylvania 19143. PPA did not
respond to Rooks' complaint.
On August 27, 2020, Rooks served a ten-day notice of intent to enter a
default judgment upon PPA by certified mail. PPA still did not respond.
On September 15, 2020, Rooks praeciped for the entry of a default
judgment against PPA, which the prothonotary entered that same day. Notice
of the default judgment was sent to PPA.
On October 5, 2020, PPA filed a petition to open the default judgment.
The trial court held a hearing on the petition. Waleed Shakir, the
manager/vice-president of PPA, testified that when he received Rooks’
complaint, he called his insurance agency. He gave them some information
and assumed they would take care of it. Shakir further testified that he did
not receive the notice of intent to take a default judgment, but only received
the notice that judgment had been entered. He then contacted his attorney.
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On February 19, 2021, the trial court denied PPA’s petition.1 PPA filed
this timely appeal.
PPA raises two issues for our consideration:
1. Based on this Court's well-established precedent is it required to strike the default judgment where the [d]efault [n]otice was defective on its face thereby rendering the judgment void ab initio?
2. Did the trial court commit an error of law/abuse of discretion when it denied [PPA’s] [p]etition to [o]pen the [d]efault [j]udgment based on an alleged failure to satisfy the second prong (reasonable excuse), where the court misconstrued/misapplied the law related to the issue, [PPA] had proffered a reasonable excuse supported by evidence, and the equities heavily favor opening the judgment?
Rooks’ Brief at 3-4.
In its first issue, PPA asks this Court to strike the default judgment.
Specifically, PPA claims that the ten-day default notice was defective on its
face, and the judgment should be stricken. PPA’s Brief at 12. PPA further
maintains that this remedy is proper, even though it raises this issue for the
first time on appeal. Id. at 15-16.
Typically, an appellant may not raise an issue on appeal which it has not
raised with the trial court. Pa.R.A.P. 302(a). As PPA acknowledges, it did not
raise the issue of striking the default judgment with the trial court. Below, it
only sought to open the judgment. Under Pennsylvania law, a petition to strike ____________________________________________
1 Meanwhile, Rooks obtained a default judgment against Walker for his failure to answer or otherwise plead. Daniels has answered the complaint.
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judgment and a petition to open judgment are separate remedies, which are
generally not interchangeable. Manor Bldg. Corp. v. Manor Complex
Assocs., Ltd., 645 A.2d 843, 845 n.2 (Pa. Super. 1994). Nonetheless, where
an appellant claims that the underlying judgment is void, this Court has
permitted the appellant to challenge that judgment at any time.
In Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super.
2013), we stated:
Appellant's original petition challenging Appellee's default judgment exclusively discussed the issue of opening the default judgment. Generally, this Court will decline to address issues not first raised before the trial court. However, we have long held that a litigant may seek to strike a void judgment at any time. This Court also permits litigants to attack allegedly void decrees for the first time on appeal. Consequently, we will address the merits of Appellant's first issue regarding a petition to strike default judgment.
Id. at 793 (citations omitted).2 Therefore, we will consider PPA’s request to
strike the default judgment.
Striking a default judgment implicates the Pennsylvania Rules of Civil
Procedure and presents a question of law. Id. Therefore, our standard of
review is de novo and our scope of review is plenary. Id.
Rule 237.1. prohibits the prothonotary from entering default judgment
against a party “unless the praecipe for entry includes a certification that a
2 Also, we note that in Cruz v. Midwives & Associates, Inc., 2019 WL3431404 *1 (Pa. Super. 2019) (unpublished opinion), this Court struck a default judgment sua sponte even though the defendant did not ask that it be stricken by the trial court or on appeal.
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written notice of intention filed with 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 to the party against whom judgment is to be
entered and to the party’s attorney of record, if any.” Pa.R.C.P.
237.1(a)(2)(ii). Furthermore, this notice must “substantially” comply with the
language set forth in Rule 237.5, which provides in relevant part: “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
Here, the notice of default provided in relevant part, “You are in default
because you have failed [to] take action required of you in this case.”
(capitalization omitted). When interpreting Rule 237.5, this Court found a
notice containing this broad language to be defective because it did not specify
the reason why the defendants were in default. Oswald, supra;
AmeriChoice Fed. Credit Union v. Ross, 135 A.3d 1018 (Pa. Super. 2015).
In Oswald, this Court found persuasive the Commonwealth Court’s
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J-S29017-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAWRENCE JOSEPH ROOKS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANTHONY LABON WALKER, MANARD : DANIELS, AND PHILADELPHIA : PUBLIC AUTO, INC : No. 563 EDA 2021 : : APPEAL OF: PHILADELPHIA PUBLIC : AUTO, INC :
Appeal from the Order Entered February 19, 2021, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): No. 200400210.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 22, 2021
Philadelphia Public Auto, Inc. (“PPA”) appeals from the order denying its
petition to open the default judgment entered against it in this personal injury
action. Upon review, we strike the judgment and remand for further
proceedings.
The procedural history and relevant facts of this case are as follows. On
April 28, 2018, Anthony Labon Walker crashed head on into a vehicle driven
by Manard Daniels. Lawrence Rooks, a passenger in Daniels’ vehicle, was
injured in the accident. At the time of accident, Walker was driving a 2005
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S29017-21
Chevrolet Tahoe which he purchased from PPA. The Tahoe, however, was still
in PPA’s name. Therefore, PPA was the legal owner of the vehicle.
On April 7, 2020, Rooks filed a complaint in this personal injury action
against Walker, Daniels, and PPA. On June 20, 2020, Rooks served PPA with
a copy of the complaint by leaving it with a clerk at PPA’s place of business at
5618-42 Woodland Avenue, Philadelphia, Pennsylvania 19143. PPA did not
respond to Rooks' complaint.
On August 27, 2020, Rooks served a ten-day notice of intent to enter a
default judgment upon PPA by certified mail. PPA still did not respond.
On September 15, 2020, Rooks praeciped for the entry of a default
judgment against PPA, which the prothonotary entered that same day. Notice
of the default judgment was sent to PPA.
On October 5, 2020, PPA filed a petition to open the default judgment.
The trial court held a hearing on the petition. Waleed Shakir, the
manager/vice-president of PPA, testified that when he received Rooks’
complaint, he called his insurance agency. He gave them some information
and assumed they would take care of it. Shakir further testified that he did
not receive the notice of intent to take a default judgment, but only received
the notice that judgment had been entered. He then contacted his attorney.
-2- J-S29017-21
On February 19, 2021, the trial court denied PPA’s petition.1 PPA filed
this timely appeal.
PPA raises two issues for our consideration:
1. Based on this Court's well-established precedent is it required to strike the default judgment where the [d]efault [n]otice was defective on its face thereby rendering the judgment void ab initio?
2. Did the trial court commit an error of law/abuse of discretion when it denied [PPA’s] [p]etition to [o]pen the [d]efault [j]udgment based on an alleged failure to satisfy the second prong (reasonable excuse), where the court misconstrued/misapplied the law related to the issue, [PPA] had proffered a reasonable excuse supported by evidence, and the equities heavily favor opening the judgment?
Rooks’ Brief at 3-4.
In its first issue, PPA asks this Court to strike the default judgment.
Specifically, PPA claims that the ten-day default notice was defective on its
face, and the judgment should be stricken. PPA’s Brief at 12. PPA further
maintains that this remedy is proper, even though it raises this issue for the
first time on appeal. Id. at 15-16.
Typically, an appellant may not raise an issue on appeal which it has not
raised with the trial court. Pa.R.A.P. 302(a). As PPA acknowledges, it did not
raise the issue of striking the default judgment with the trial court. Below, it
only sought to open the judgment. Under Pennsylvania law, a petition to strike ____________________________________________
1 Meanwhile, Rooks obtained a default judgment against Walker for his failure to answer or otherwise plead. Daniels has answered the complaint.
-3- J-S29017-21
judgment and a petition to open judgment are separate remedies, which are
generally not interchangeable. Manor Bldg. Corp. v. Manor Complex
Assocs., Ltd., 645 A.2d 843, 845 n.2 (Pa. Super. 1994). Nonetheless, where
an appellant claims that the underlying judgment is void, this Court has
permitted the appellant to challenge that judgment at any time.
In Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super.
2013), we stated:
Appellant's original petition challenging Appellee's default judgment exclusively discussed the issue of opening the default judgment. Generally, this Court will decline to address issues not first raised before the trial court. However, we have long held that a litigant may seek to strike a void judgment at any time. This Court also permits litigants to attack allegedly void decrees for the first time on appeal. Consequently, we will address the merits of Appellant's first issue regarding a petition to strike default judgment.
Id. at 793 (citations omitted).2 Therefore, we will consider PPA’s request to
strike the default judgment.
Striking a default judgment implicates the Pennsylvania Rules of Civil
Procedure and presents a question of law. Id. Therefore, our standard of
review is de novo and our scope of review is plenary. Id.
Rule 237.1. prohibits the prothonotary from entering default judgment
against a party “unless the praecipe for entry includes a certification that a
2 Also, we note that in Cruz v. Midwives & Associates, Inc., 2019 WL3431404 *1 (Pa. Super. 2019) (unpublished opinion), this Court struck a default judgment sua sponte even though the defendant did not ask that it be stricken by the trial court or on appeal.
-4- J-S29017-21
written notice of intention filed with 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 to the party against whom judgment is to be
entered and to the party’s attorney of record, if any.” Pa.R.C.P.
237.1(a)(2)(ii). Furthermore, this notice must “substantially” comply with the
language set forth in Rule 237.5, which provides in relevant part: “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
Here, the notice of default provided in relevant part, “You are in default
because you have failed [to] take action required of you in this case.”
(capitalization omitted). When interpreting Rule 237.5, this Court found a
notice containing this broad language to be defective because it did not specify
the reason why the defendants were in default. Oswald, supra;
AmeriChoice Fed. Credit Union v. Ross, 135 A.3d 1018 (Pa. Super. 2015).
In Oswald, this Court found persuasive the Commonwealth Court’s
analysis and conclusion that the amendments to Rule 237.5 “impose[d] an
additional notice requirement on a [plaintiff] who wishes to obtain a judgment
by default[;] . . . the [plaintiff] must now include in the [ten-day] notice
specific reasons why the defendant is in default.” Oswald, 80 A.3d at 795-
96 (citing City of Philadelphia v. David J. Lane Advertising, 33 A.3d 675,
679 (Pa. Commwlth. 2011)). Because the ten-day notice of default in Oswald
only generally indicated that the defendant failed to take action required of it,
-5- J-S29017-21
we found that the notice lacked the required language and constituted a fatal
defect on the record. Id. at 796. We further observed:
It is well established that a record which reflects a failure to comply with Pa.R.C.P. 237.1 is facially defective and cannot support a default judgment. Furthermore, since the prothonotary lacks authority to enter judgment under these circumstances, the default judgment would be void ab initio.
Id. at 796-97 (citations omitted). Consequently, this Court struck the default
judgment. Id. at 797.
Based upon the rules and this precedent, we similarly find that the ten-
day notice in this case was defective on its face because it did not use the
required language set forth in Rule 237.5. On its face, the notice violated Rule
237.1. As such, the prothonotary was not authorized to enter the default
judgment, and the judgment against PPA was void ab initio. We, therefore,
grant PPA’s request to strike the default judgment entered against it. In light
of this action, we need not address PPA’s remaining issue.
Default judgment stricken. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/22/2021
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