Green Acres Rehabilitation & Nursing Center v. Sullivan

J-S10039-15

2015 PA Super 73

GREEN ACRES REHABILITATION AND : IN THE SUPERIOR COURT OF
NURSING CENTER : PENNSYLVANIA
:
v. :
:
HENRY SULLIVAN AND HENRIETTA :
SULLIVAN :
:
APPEAL OF: HENRIETTA SULLIVAN : No. 2084 EDA 2014

Appeal from the Order Entered June 13, 2014
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 070301125

BEFORE: GANTMAN, P.J., STABILE, J., AND PLATT, J.*

OPINION BY GANTMAN, P.J.: FILED APRIL 13, 2015

Appellant, Henrietta Sullivan, appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied her petition to

strike a default judgment entered in favor of Appellee, Green Acres

Rehabilitation and Nursing Center (“Green Acres”), in this breach of contract

case. We affirm.

The relevant facts and procedural history of this appeal are as follows.

Appellant’s father, Henry Sullivan, became a resident at Green Acres on

January 21, 2005.1 Mr. Sullivan executed a power of attorney (“POA”)

agreement, designating Appellant as his agent, on April 28, 2005. On March

1
Although Appellant stated in her petition to strike the judgment that Mr.
Sullivan died on December 22, 2007, the record, as it existed at the time the
default judgment was entered, contains no evidence of Mr. Sullivan’s date of
death.
_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10039-15

13, 2007, Green Acres filed a complaint against Mr. Sullivan and Appellant,

seeking $114,497.13 in damages based on allegations that Mr. Sullivan had

failed to pay for nursing home services provided by Green Acres. The

complaint included counts of breach of contract, unjust enrichment, and

quantum meruit against Mr. Sullivan and Appellant, and one count of breach

of fiduciary duty against Appellant. In the following months, the complaint

was reinstated several times to allow for service. With respect to Appellant,

Green Acres served the complaint on September 22, 2007, at Appellant’s

residence on an adult relative who refused to give her name to the process

server. Appellant did not file an answer.

On December 12, 2007, Green Acres sent to Appellant’s address via

certified mail a ten-day notice of intent to file a praecipe for entry of default

judgment. The notice stated in relevant part:

To: Henrietta Sullivan
Date: October 24, 2007

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 NOTICE TO A LAWYER
AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT
AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING
OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP:

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Philadelphia Bar Association
Lawyer Referral and Information Service
1101 Market Street, 11th Floor
Philadelphia, PA 19107
(215) 238-6300

(See Petition to Strike Judgment, Exhibit F; R.R. at 78a). Fourteen days

later, on December 26, 2007, Green Acres filed a praecipe for entry of

default judgment against Appellant. Green Acres attached to the praecipe to

enter default judgment a copy of the notice of intent to file the praecipe and

a certification Green Acres had sent the notice to Appellant. The certification

stated in relevant part: “Pursuant to R 4:43-1, the Motion for Final Judgment

by Default has been sent by first class U.S. Postal Mail and Certified Mail,

return receipt requested to [Appellant], Henrietta Sullivan….” (See Petition

to Strike Judgment, Exhibit G; R.R. at 81a). Judgment by default was

entered against Appellant in the amount of $114,497.13.2

Appellant took no further action in this case until April 10, 2014, when

she filed a petition to strike the default judgment on, inter alia, the following

grounds: (1) the trial division of the Philadelphia Court of Common Pleas

lacked subject matter jurisdiction over this case; (2) the judgment was

improperly entered against Appellant in her individual, rather than

representative, capacity; and (3) Green Acres attached to the praecipe to

enter default judgment a fatally defective certification that it had sent

2
Mr. Sullivan was personally served with the complaint on May 1, 2007, and
served on July 23, 2007, with notice of intent to take a default judgment.
Judgment by default against Mr. Sullivan was previously entered on
December 12, 2007, in the same amount.
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Appellant notice of its intent to file the praecipe to enter default judgment.3

The trial court denied the petition on June 13, 2014. Appellant filed a

motion for reconsideration and a timely notice of appeal on July 8, 2014. On

July 9, 2014, the court ordered Appellant to file a concise statement of

errors complained of on appeal, per Pa.R.A.P. 1925(b), which Appellant

timely filed on July 22, 2014. The court denied Appellant’s motion for

reconsideration on July 30, 2014.

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW WHEN IT FAILED TO STRIKE (EITHER UPON
[APPELLANT’S PETITION] TO STRIKE OR ITS OWN
[MOTION]) THE DEFAULT JUDGMENT ENTERED AGAINST
[APPELLANT], REGARDLESS OF THE PASSAGE OF TIME, AS
VOID DUE TO LACK OF SUBJECT MATTER JURISDICTION
IN THE TRIAL DIVISION WHEN ALL ALLEGATIONS OF
WRONGDOING AND PRAYERS FOR RELIEF AVERRED IN
THE COMPLAINT AGAINST [APPELLANT] ARE AGAINST HER
IN HER REPRESENTATIVE CAPACITY AS AGENT FOR HER
FATHER, HENRY SULLIVAN, UNDER A FINANCIAL POWER
OF ATTORNEY?

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW WHEN IT FAILED TO STRIKE (EITHER UPON
[APPELLANT’S PETITION] TO STRIKE OR ITS OWN
[MOTION]) THE DEFAULT JUDGMENT ENTERED AGAINST
[APPELLANT] IN HER INDIVIDUAL CAPACITY, REGARDLESS
OF THE PASSAGE OF TIME, AS VOID FOR FAILURE TO SUE
[APPELLANT] IN THE CORRECT CAPACITY, WHEN THE
FACE OF THE COMPLAINT FAILS TO CONTAIN ANY
ALLEGATIONS OF WRONGDOING OR ANY CLAIM AGAINST
[APPELLANT] IN HER INDIVIDUAL CAPACITY, BOTH OF
WHICH ARE NECESSARY TO SUPPORT A DEFAULT
JUDGMENT AGAINST HER IN THAT CAPACITY?

3
The record fails to show that Appellant properly served the petition to
strike on Green Acres.
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J-S10039-15

WHETHER THE TRIAL COURT COMMITTED AN ERROR OF
LAW WHEN IT FAILED TO STRIKE (EITHER UPON
[APPELLANT’S PETITION] TO STRIKE OR ITS OWN
[MOTION]) THE DEFAULT JUDGMENT ENTERED AGAINST
[APPELLANT], REGARDLESS OF THE PASSAGE OF TIME, AS
VOID DUE TO A DEFECTIVE PROOF OF SERVICE OF THE
NOTICE OF INTENT TO TAKE A DEFAULT JUDGMENT
WHICH (A) FAILS TO CERTIFY THAT A WRITTEN NOTICE
OF PRAECIPE TO ENTER JUDGMENT WAS MAILED OR
DELIVERED AS REQUIRED BY [PA.R.C.P.] 237.1(A)(2),
BUT RATHER CITES TO A NEW JERSEY RULE OF CIVIL
PROCEDURE, WHICH IS OF NO EFFECT IN THE
COMMONWEALTH OF PENNSYLVANIA AND (B)
REFERENCES THE SERVICE OF A “MOTION FOR FINAL
JUDGMENT BY DEFAULT” AND NOT A NOTICE OF PRAECIPE
TO ENTER DEFAULT JUDGMENT AS REQUIRED BY THE
RULE; BOTH OF WHICH REMOVED THE PROTHONOTARY’S
AUTHORITY TO ENTER SUCH A DEFAULT JUDGMENT?

(Appellant’s Brief at 4).4

In her first issue, Appellant argues all allegations against her in Green

Acres’ complaint concern Appellant’s alleged wrongdoing in her capacity as

Mr. Sullivan’s POA. Appellant asserts all prayers for relief in the complaint

4
In a footnote in the statement of the case in her brief, Appellant also
complains Green Acres’ service of the complaint was improper because the
return of service did not indicate how the process server identified the
person served as a relative of Appellant or a person in charge of Appellant’s
residence. Nevertheless, this argument appears nowhere in the argument
section of Appellant’s brief. Appellant also fails to include this issue in her
statement of the questions involved. Moreover, the footnote contains no
citations to relevant authority. For these reasons, Appellant’s short footnote
commentary regarding improper service is waived. See Pa.R.A.P. 2119(a)
(stating argument shall be divided into as many sections as there are
questions presented, followed by discussion with citation to relevant legal
authority); Commonwealth v. Johnson, 604 Pa. 176, 985 A.3d 915
(2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010)
(explaining appellant waives issue on appeal where she fails to present claim
with citations to relevant authority or to develop issue in meaningful fashion
capable of review).
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J-S10039-15

likewise refer to her as “Power of Attorney, Henrietta Sullivan.” Appellant

contends the trial division lacked subject matter jurisdiction over the claims

against her because the Orphans’ Court Division has “mandatory”

jurisdiction over matters pertaining to an agent’s actions under a POA.

Appellant concludes the default judgment is void on its face, and the court

erred when it denied Appellant’s petition to strike the default judgment on

this basis. We disagree.

An appeal regarding a petition to strike a default judgment implicates

the Pennsylvania Rules of Civil Procedure. Oswald v. WB Public Square

Associates, LLC, 80 A.3d 790, 793 (Pa.Super. 2013). Issues regarding the

operation of procedural rules of court present us with questions of law. Id.

Therefore, “our standard of review is de novo and our scope of review is

plenary.” Id.

“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.” Midwest Financial Acceptance Corp. v. Lopez, 78 A.3d 614,

622-23 (Pa.Super. 2013). “[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.” Oswald, supra at 794. A fatal

defect on the face of the record denies the prothonotary the authority to

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enter judgment. Erie Ins. Co. v. Bullard, 839 A.2d 383, 388 (Pa.Super.

2003). When a prothonotary enters judgment without authority, that

judgment is void ab initio. Id. “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.” Cintas Corp. v. Lee’s Cleaning Services, Inc.,

549 Pa. 84, 90, 700 A.2d 915, 917 (1997).

A judgment is void on its face if one or more of three
jurisdictional elements is found absent: jurisdiction of the
parties; subject matter jurisdiction; or the power or
authority to render the particular judgment. The term
“jurisdiction” relates to the competency of the individual
court, administrative body, or other tribunal to determine
controversies of the general class to which a particular
case belongs. Moreover, it is never too late to attack a
judgment or decree for want of jurisdiction, as any such
judgment or decree rendered by a court which lacks
jurisdiction of the subject matter or the person is null and
void, and can be attacked by the parties at any time. A
petition to strike a judgment founded on a jurisdictional
deficiency is therefore not subject to the same “timeliness”
considerations as a petition to open the judgment.

Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099, 1105 (Pa.Super. 1996).

Article V, Section 5 of the Pennsylvania Constitution states as follows:

§ 5. Courts of common pleas

There shall be one court of common pleas for each judicial
district (a) having such divisions and consisting of such
number of judges as shall be provided by law, one of
whom shall be the president judge; and

(b) having unlimited original jurisdiction in all cases except
as may otherwise be provided by law.

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Pa. Const. art. 5, § 5. See also 42 Pa.C.S.A. § 931(a) (stating: “Except

where exclusive original jurisdiction of an action or proceeding is by statute

or by general rule…vested in another court of this Commonwealth, the courts

of common pleas shall have unlimited original jurisdiction of all actions and

proceedings….”); Posner v. Sheridan, 451 Pa. 51, 299 A.2d 309 (1973)

(explaining 1968 Pennsylvania Constitution abolished former system of

separate trial courts and combined them into unified common pleas system).

The Judicial Code establishes three separate divisions within the

Philadelphia County Court of Common Pleas:

§ 951. Court divisions

(a) Philadelphia County.—The Court of Common Pleas
of Philadelphia County shall have the following divisions:

(1) Trial division.

(2) Orphans’ court division.

(3) Family court division.

42 Pa.C.S.A. § 951(a). Section 711 of the Probate, Estates and Fiduciaries

Code provides in relevant part as follows:

§ 711. Mandatory exercise of jurisdiction through
orphans’ court division in general

Except as provided in section 712 (relating to
nonmandatory exercise of jurisdiction through the orphans’
court division) and section 713 (relating to special
provisions for Philadelphia County),[5] the jurisdiction of
the court of common pleas over the following shall be
exercised through its orphans’ court division:

5
Section 713 addresses matters relating to adoptions and birth records.
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J-S10039-15

* * *

(22) Agents.—All matters pertaining to the exercise of
powers by agents acting under powers of attorney as
provided in…Chapter 56 (relating to powers of attorney).

20 Pa.C.S.A. § 711(22). Section 952 of the Judicial Code, however, states

the following:

§ 952. Status of court divisions

The divisions of a court of common pleas are
administrative units composed of those judges of the court
responsible for the transaction of specified classes of the
business of the court. In a court of common pleas having
two or more divisions each division of the court is
vested with the full jurisdiction of the whole court,
but the business of the court may be allocated among the
divisions of the court by or pursuant to general rules.

42 Pa.C.S.A. § 952 (emphasis added). With respect to matters filed in the

wrong division, Section 5103(c) directs:

§ 5103. Transfer of erroneously filed matters

* * *

(c) Interdivisional transfers.—If an appeal or other
matter is taken to, brought in, or transferred to a division
of a court to which such matter is not allocated by law, the
court shall not quash such appeal or dismiss the matter,
but shall transfer the record thereof to the proper division
of the court, where the appeal or other matter shall be
treated as if originally filed in the transferee division on the
date first filed in a court or magisterial district.

Id. § 5103(c). With reference to these constitutional and statutory

provisions, our Supreme Court explained:

[J]urisdictional restraints upon the former common pleas

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J-S10039-15

court under the old system no longer exist. The court of
common pleas, as reconstituted, possesses the
jurisdictions of the former courts of common pleas, courts
of quarter sessions, courts of oyer and terminer, orphans’
courts, and juvenile courts. One of the purposes of the
unified court is, of course, to simplify procedure and
remove archaisms from the judicial system. A case may
not be dismissed because brought in the wrong court; if
the matter is justiciable, there is jurisdiction in the court of
common pleas to hear it, and in a multi-division court the
remedy for bringing the case in the wrong division is not a
dismissal, but a transfer of the matter to the correct
division.

Gorden v. Cutler, 471 A.2d 449, 453 (Pa.Super. 1983) (quoting

Commonwealth v. Waszinski, 485 Pa. 247, 254-55, 401 A.2d 1129, 1132

(1978)).

Instantly, Green Acres filed its complaint for breach of contract in the

trial division of the Philadelphia County Court of Common Pleas. As

Appellant concedes, the court of common pleas had subject matter

jurisdiction over this case. See 42 Pa.C.S.A. 931(a). Thus, as a division of

the court of common pleas, the trial division was vested with the full

jurisdiction of the whole court to hear the case. See 42 Pa.C.S.A. § 952;

Gorden, supra. The question of whether the trial division was the

appropriate administrative unit to hear the case is immaterial to the issue of

subject matter jurisdiction.

Moreover, the complaint sought damages based on Mr. Sullivan’s

alleged failure to pay for nursing home services in accordance with his

contract with Green Acres. All allegations in the complaint stemmed from

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Mr. Sullivan’s alleged debt to Green Acres. The allegations against

Appellant, which concerned her failure to exercise her POA to pay this debt

with Mr. Sullivan’s funds, were wholly derivative of the claims for breach of

contract and unjust enrichment against Mr. Sullivan. Green Acres included

the allegations against Appellant as an alternative means to recover the

money damages it sought from her father. The gravamen of the complaint

is that Mr. Sullivan breached his contract with Green Acres. Although

irrelevant to the question of whether the trial division had subject matter

jurisdiction, this case fell outside the scope of 20 Pa.C.S.A. § 711(22), in any

event. Even if Green Acres had filed its complaint in the wrong division as

an administrative matter, the proper action would be to transfer the case to

the correct division, not to dismiss the case for lack of subject matter

jurisdiction. See 42 Pa.C.S.A. § 5103(c). Therefore, the trial division had

subject matter jurisdiction over this case. See Gorden, supra.

In her second issue, Appellant argues the caption of the complaint

indicates Appellant was sued in her individual capacity even though all of the

allegations against Appellant concerned her actions as Mr. Sullivan’s agent

under a POA. Appellant asserts an allegation against her in her individual

capacity was “an absolute prerequisite to the entry of a default judgment

against her in that capacity.” (Appellant’s Brief at 20). Appellant contends

the statute of limitations has now run on Green Acres’ claims, and the

default judgment cannot be amended to name Appellant in her

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J-S10039-15

representative capacity. Appellant concludes this alleged defect is clear on

the face of the complaint and renders the default judgment void. We

disagree.

“A petition to open a default judgment and a petition to strike a default

judgment seek distinct remedies and are generally not interchangeable.”

Stauffer v. Hevener, 881 A.2d 868, 870 (Pa.Super. 2005) (opening, not

striking, default judgment based on meritorious statute of limitations

defense raised in appellant’s petition to strike and/or open default

judgment).

A petition to open a default judgment is an appeal to the
equitable powers of the court. The decision to grant or
deny a petition to open a default judgment is within the
sound discretion of the trial court, and we will not overturn
that decision absent a manifest abuse of discretion or error
of law.

Graziani v. Randolph, 856 A.2d 1212, 1223 (Pa.Super. 2004), appeal

denied, 583 Pa. 663, 875 A.2d 1075 (2005). “Conversely, a petition to

strike a default judgment should be granted where a fatal defect or

irregularity appears on face of record.” Erie Ins. Co., supra at 386.

Ordinarily, if a petition to open a judgment is to be
successful, it must meet the following test: (1) the petition
to open must be promptly filed; (2) the failure to appear or
file a timely answer must be excused; and (3) the party
seeking to open the judgment must show a meritorious
defense…. In making this determination, a court can
consider facts not before it at the time the judgment was
entered.

Mother’s Restaurant, Inc. v. Krystkiewicz, 861 A.2d 327, 336

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J-S10039-15

(Pa.Super. 2004) (en banc) (quoting Cintas Corp., supra at 93-94, 700

A.2d at 918-19).

Here, Appellant averred in her petition to strike the default judgment

that Mr. Sullivan died on December 22, 2007, four days before the default

judgment was entered. Mr. Sullivan’s death would have terminated the

POA, as there is no evidence the POA was coupled with an interest that

made it irrevocable. See Appeal of Yerkes, 99 Pa. 401, 401 (1882)

(stating: “A power of attorney ceases to be operative upon the death of the

party giving it, unless it is coupled with such an interest as renders it

irrevocable”). See generally In re Estate of Eastman, 760 A.2d 16

(Pa.Super. 2000) (stating death of principal operates as instantaneous and

absolute revocation of agent’s authority to act for principal unless agency is

coupled with irrevocable interest). Thus, at the time the default judgment

was entered against Appellant, she might no longer have been Mr. Sullivan’s

agent. Under those circumstances, a default judgment could not have been

entered against Appellant in her “representative capacity” because that

capacity no longer existed. Here, the default judgment was entered against

Appellant in her individual capacity, not as Mr. Sullivan’s POA.

Additionally, Appellant is incorrect to suggest as a general matter that

an agent acting under a POA cannot be held personally liable for her acts or

omissions under a POA. See Metcalf v. Pesock, 885 A.2d 539 (Pa.Super.

2005) (holding decedent’s former agent under POA was liable for invalid gift

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he made to himself during decedent’s lifetime while POA was still effective).

To the extent Appellant argues she cannot be held personally liable based on

the specific allegations in Green Acres’ complaint, this claim is an

inappropriate ground to strike a default judgment because it goes to the

merits or allegations in the complaint and does not involve a fatal defect or

irregularity on the face of the record. See Erie Ins. Co., supra. Appellant

should have raised this defense, if at all, in a petition to open the judgment,

which is a distinct remedy Appellant failed to seek. See Graziani, supra;

Mother’s Restaurant, Inc. Therefore, the trial court properly declined to

strike the default judgment on this ground.

In her third issue, Appellant argues the certification Green Acres

attached to its praecipe to enter default judgment failed to comply with

Pa.R.C.P. 237.1. Specifically, Appellant contends the certification attached

to the praecipe to enter default judgment (1) improperly referred to a

“motion for final judgment by default” and (2) cited an inapplicable New

Jersey Rule of Civil Procedure. Appellant concludes Green Acres’ certification

was fatally defective and provides an alternative ground to strike the default

judgment. We disagree.

Rule 237.1 of the Pennsylvania Rules of Civil Procedure deals with

notice of intent to take a default judgment and provides in relevant part as

follows:

Rule 237.1 Notice of Praecipe for Entry of Judgment
of Non Pros for Failure to File Complaint or by

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Default for Failure to Plead

(a)(1) As used in this rule,

* * *

“judgment by default” means a judgment entered by
praecipe pursuant to Rules 1037(b), 1511(a), 3031(a) and
3146(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

* * *

(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.

The ten-day notice period in subdivision [(a)(2)(ii)] shall
be calculated forward from the date of the mailing or
delivery, in accordance with Rule 106.

(3) A copy of the notice shall be attached to the
praecipe.

Pa.R.C.P. 237.1(a)(1), (2)(ii), (3). The intent of Rule 237.1 is to allow the

defaulting party a full ten-day period to cure the default. Acre v. Navy

Brand Mfg. Co., 571 A.2d 466, 469 (Pa.Super. 1990). This rule operates in

tandem with Rule 237.5, which provides:

Rule 237.5 Form of Notice of Praecipe to Enter
Judgment by Default

The notice required by Rule 237.1(a)(2) shall be
substantially in the following form:

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(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 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)

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Pa.R.C.P. 237.5.

Under the doctrine of substantial compliance, the trial court may

“overlook any procedural defect that does not prejudice a party’s rights.”

Womer v. Hilliker, 589 Pa. 256, 267, 908 A.2d 269, 276 (2006) (emphasis

in original). “[P]rocedural rules are not ends in themselves, and…rigid

application of [the Rules] does not always serve the interest of fairness and

justice.” Id. Rule 126 incorporates the doctrine of substantial compliance

into the Pennsylvania Rules of Civil Procedure as follows:

Rule 126. Liberal Construction and Application of
Rules

The rules shall be liberally construed to secure the just,
speedy and inexpensive determination of every action or
proceeding to which they are applicable. The court at
every stage of any such action or proceeding may
disregard any error or defect of procedure which does not
affect the substantial rights of the parties.

Pa.R.C.P. 126. Rule 126 allows an equitable exception for parties “who

commit a misstep when attempting to do what any particular rule requires.”

Womer, supra at 268-69, 908 A.2d at 276. Rule 126 does not excuse a

party’s complete noncompliance with the rules, but Rule 126 “is available to

a party who makes a substantial attempt to conform.” Id. at 271, 908 A.2d

at 278 (holding there was no compliance, where party failed to take any

steps to conform with Rule 1042.3 for filing certificate of merit); Pomerantz

v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280, 1281 (1978) (holding

appellant substantially complied with Rule 1038(d) for filing exceptions,

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although pleading was erroneously titled motion for new trial, and appellee

suffered no prejudice when trial court considered appellant’s pleading).

Compare Oswald, supra at 796 (holding ten-day notice was defective

because it contained generic language from outdated rule and failed to

conform to amended language required under current Rule 237.5).

Instantly, Green Acres filed a praecipe for entry of default judgment

against Appellant on December 26, 2007. The praecipe included a

certification that Green Acres had sent Appellant, via certified mail, a ten-

day notice of its intent to seek a default judgment. Mail receipts in the

certified record indicate the ten-day notice was delivered to Appellant’s

address on December 12, 2007. Green Acres also attached to the praecipe a

copy of the ten-day notice, which complied with Pa.R.C.P. 237.5. Although

the certification attached to Green Acres’ praecipe mistakenly referred to a

“Motion for Final Judgment by Default” and an analogous New Jersey rule of

court regarding entry of default judgment, the language of the actual ten-

day notice sent to Appellant was virtually identical to the language set forth

in current Rule 237.5.

Additionally, Green Acres sent the ten-day notice to Appellant more

than ten days before it filed the praecipe for entry of default judgment.

Thus, Green Acres fulfilled the purpose of Rule 237.1, which is to allow the

defaulting party a full ten-day period to cure the default. See Acre, supra.

Appellant fails to explain how Green Acres’ alleged misstep in its certification

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attached to the praecipe prejudiced Appellant in any way. A review of the

record as a whole reveals Green Acres had substantially complied with the

applicable ten-day notice requirements before it sought entry of a default

judgment against Appellant. See Pa.R.C.P. 237.1; Pa.R.C.P. 237.5;

Womer, supra; Oswald, supra.

Based on the foregoing, we conclude Appellant failed to demonstrate a

fatal defect on the face of the record as it existed when judgment was

entered. See Midwest Financial, supra. Therefore, the court properly

denied Appellant’s petition to strike the default judgment. Accordingly, we

affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2015

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