J. A10012/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ROBERT DUNCAN & LEAH MANN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPELLANT :
v. :
:
PROJECT HOME, 1212 LUDLOW LP AND :
JOAN D. MCCONNON :
:
: No. 3054 EDA 2015
Appeal from the Order September 15, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): February Term, 2015, No. 2882
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MAY 23, 2017
Appellant, Robert Duncan, appeals pro se from the trial court’s May
13, 2015 Order granting the Petition to Strike Default Judgment filed by
Appellees, Project H.O.M.E., 1212 Ludlow, LP, and Joan D. McConnon, and
the September 15, 2015 Order sustaining Appellees’ Preliminary Objections
and dismissing Appellant’s Complaint. After careful review, we affirm.
On February 15, 2015, Appellant and Leah Mann1 (“Mann”)
(collectively “Plaintiffs”) commenced this action by filing a Complaint against
Appellees, in which Plaintiffs alleged that Appellees committed acts of
misconduct while Plaintiffs were residents of Project H.O.M.E. and during
1
Leah Mann is not a party to this appeal.
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Appellant’s eviction from Project H.O.M.E.2 An Affidavit of Service shows
that Plaintiffs served Appellees with the Complaint on February 26, 2016.
On March 9, 2015, counsel for Appellees entered their appearances.
On March 30, 2015, Plaintiffs allegedly forwarded a Notice of Intent to Enter
Default Judgment pursuant to Pa.R.C.P. No. 237.1. (“10-day Notice”) to
Appellees’ counsel.
On April 10, 2015, Plaintiffs entered Default Judgment against
Appellees by praecipe. On April 16, 2015, Appellees filed a Petition to Strike
Default Judgment, in which they alleged that Appellees’ counsel did not
receive the 10-day Notice Plaintiffs purportedly sent to counsel, and that
Plaintiffs never sent the 10-day Notice to Appellees, as required by Pa.R.C.P.
No. 237.1(a)(2)(ii).3
On May 13, 2015, the trial court granted Appellees’ Petition and struck
the Default Judgment.4
2
With regard to the allegations in the Complaint, the trial court concluded
that Plaintiffs “did not plead any cause of action in their Complaint. This
[c]ourt assumed that the Plaintiffs were alleging malicious prosecution and
defamation of character in their Complaint; however, the Plaintiffs at no
point actually identified these theories in their Complaint.” Trial Ct. Op.,
6/21/16, at 4.
3
Rule 237.1(a)(2)(ii) requires a party seeking entry of Judgment by default
to provide Notice of Intent to Enter Default Judgment to both the “party
against whom judgment is to be entered and to the party’s attorney of
record, if any.” Pa.R.C.P. No. 237.1(a)(2)(ii).
4
On June 2, 2015, Appellant filed an appeal from the May 13, 2015 Order.
This Court quashed that appeal as interlocutory on July 10, 2015. See
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On May 14, 2015, Appellees filed Preliminary Objections to the
Complaint. On June 16, 2015, the trial court entered an order specifically
directing Plaintiffs to file a Response to Appellees’ Preliminary Objections;
however, Plaintiffs did not comply. Therefore, on September 15, 2015, the
court entered an Order sustaining Appellees’ Preliminary Objections and
dismissing the Complaint.
Appellant filed a Notice of Appeal on September 30, 2015. The trial
court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.
Appellant raises the following three issues for our review, which we
reproduce here verbatim:
1. Did the trial court err in “strike default judgment of
defendants,” and “stricken” the default judgment entered
in favor of Plaintiffs, without first implying the Stabley
Test showing the three (3) elements: (1) the first prong
being timeliness, (2) the second prong being an
reasonable excuse of its delay to plead, and (3) the third
prong being a meritorious defense and abusing its
discretion by not conducting an hearing to better
determine whether or not the ten (10) day notice letters
were in fact mailed to all Defendants and Attorney’s of
record in accordance with Pa.R.Civ.P. 237.1(2)(ii). As
these notices was needed before being certified for the
default judgment entry?
2. Did the trial court err when it misapplied the law and
failed to exercise fair judgment when it allow the Appellees
too baldly file the “Petition to Strike Judgment” without an
rule to show cause, in violating Pa.R.Civ.P. 206.2(a),
and New Rule 206.4(a), as well as 206.7(a)?
Duncan v. Project H.O.M.E, et al., No. 1728 EDA 2015 (Pa. Super. filed
Sept. 1, 2015).
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3. Did the trial court err in granting Defendants
preliminary objection and dismissing the Plaintiffs
Complaint and not require Appellants to file an Pa.R.A.P.
1925(b), as Appellants would have been penalized under
the bright-line rule for failure to comply.
Appellant’s Brief at 4.
In his first issue, Appellant challenges the trial court’s May 13, 2015
Order granting Appellees’ Petition to Strike Default Judgment. Id. at 9-10.
Initially, we note that Appellant has confused the remedy of striking the
Default Judgment, which occurred here, with opening the Default
Judgment, which did not occur here. Id. Striking a judgment and opening a
judgment are distinct remedies, and have distinct standards of review on
appeal.5
Here, Appellees filed a Petition to Strike the Default Judgment,
alleging that Appellant failed to comply with the dual notice requirement,
certification, and attachment requirements of Pa.R.C.P. No. 237.1.
5
A Petition to Strike operates as a demurrer to the record. Keller v. Mey,
67 A.3d 1, 4 (Pa. Super. 2013). Where a fatal defect or irregularity is
apparent from the face of the record, the court must strike the Judgment as
void. Id. (citation omitted). Because a Petition to Strike raises a question
of law, our standard of review is de novo and our scope of review is plenary.
Oswald v. WB Public Square Assoc., LLC, 80 A.3d 790, 793 (Pa. Super.
2013). A Petition to Open a Judgment is an appeal to the court's equitable
powers and is a matter of judicial discretion. Cargitlada v. Binks Mfg. Co.,
837 A.2d 547, 550 (Pa. Super. 2003). In contrast to a Petition to Strike,
when considering a Petition to Open a Judgment, the court may consider
matters outside of the record. Id. “A petition to open default judgment is
discretionary; to reverse, we must find either a manifest abuse of discretion
or an error of law by the trial court.” Oswald, 80 A.3d at 794 n.3.
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Appellees did not file, and the court did not grant, a Petition to Open Default
Judgment. Appellant has not claimed or argued in his Brief that the trial
court erred in striking the Default Judgment. Therefore, Appellant has
waived any challenge to the Order striking the Default Judgment. See
Pa.R.A.P. 2119; see also MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d
980, 992 (Pa. Super. 2007) (“Appellants have the burden of developing their
claims on appeal; arguments that are not appropriately developed are
waived.”).
In his second issue, Appellant baldly claims the trial court erred in
granting Appellees’ Petition to Strike Judgment without first holding a
hearing to investigate the veracity of Appellees’ claim that their counsel did
not receive the Rule 237.1 Notice of Intent to Enter Default Judgment.
Appellant’s Brief at 10-11. Appellant claims this conduct violated
“Pa.R.Civ.P. 206.2(a), and New Rule 206.4(a), as well as 206.7(a)[.]” Id. at
10.
Appellant’s reliance on Pa.R.C.P. No. 206.4 is woefully misplaced, and
in fact, undermines this claim in its entirety. Rule 206.4 requires that,
generally, petition practice should proceed upon a Rule to Show Cause.
Pa.R.C.P. No. 206.4(a)(1). The rule also provides, in relevant part,
however, that “[a] judgment shall be stricken without the issuance of a rule
to show cause when there is a defect on the face of the record that
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constitutes a ground for striking a default judgment.” Pa.R.C.P. No.
206.4(a)(2).6
Here, the trial court found a fatal defect on the face of the record—
Appellant’s failure to comply with the notice requirements of Rule 237.1.
Thus, the court was required to grant Appellees’ Petition to Strike. See
Keller, 67 A.3d at 4. Rule 206.4(a)(2) expressly permitted the trial court to
do so without first holding a hearing.
Appellant has likewise failed to demonstrate the relevance of Pa.R.C.P.
Nos. 206.2(a) and 206.7(a). Rule 206.2(a) provides that “[a]n answer shall
state the material facts which constitute the defense to the petition.” See
No. Pa.R.C.P. 206.2(a). Rule 206.7(a) provides that, “[i]f an answer is not
filed, all averments of fact in the petition may be deemed admitted for the
purposes of this subdivision and the court shall enter an appropriate order.”
See Pa.R.C.P. No. 206.7(a). Accordingly, this claim also fails.
In his last issue, Appellant claims the trial court erred in sustaining
Appellees’ Preliminary Objections. Appellant’s Brief at 4. Appellant does
not, however, set forth any argument in support of this claim in his Brief to
this Court. Accordingly, it is waived. See Pa.R.A.P. 2119; see also
MacNutt, supra.
6
Rule 206.5(e) reiterates that a court need not hold a rule to show cause
hearing before striking a judgment by default where grounds for doing so
are apparent on the face of the record. See Pa.R.C.P. No. 206.5(e).
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Appellant also alleges in this issue that the court erred in not requiring
him to file a Pa.R.A.P. 1925(b) Statement, “as Appellant[] would had [sic]
been penalized under the bright-line rule for failure to comply.” Id. at 4,
11-12. It appears here that Appellant’s “logic” is as follows: the trial court
was so deeply concerned with the propriety of its rulings and their ability to
withstand appellate scrutiny that it did not order Appellant to file a Rule
1925(b) Statement in an effort to cause him to waive his issues on appeal.
Appellant apparently believes that the failure to file a Rule 1925(b)
Statement results in waiver of all issues on appeal, even if the trial court
does not order an appellant to file a Rule 1925(b) Statement. This is, of
course, not the case.
It is entirely within the trial court’s discretion to order an appellant to
file a Rule 1925(b) Statement. See Pa.R.A.P. 1925(b) (“If the judge
entering the order giving rise to the [N]otice of [A]ppeal (“judge”) desires
clarification of the errors complained of on appeal, the judge may enter an
[O]rder directing the appellant to file of record in the trial court and serve on
the judge a concise statement of the errors complained of on appeal
(“Statement”)” (emphasis added)).
Furthermore, an appellant’s issues on appeal are waived only when the
trial court orders him to file a Rule 1925(b) Statement and he fails to
comply. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“[I]n order to preserve their claims for appellate review, [a]ppellants must
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comply whenever the trial court orders them to file a Statement of Matters
Complained of on Appeal pursuant to Rule 1925.”). This issue, therefore,
lacks merit.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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