Friday, November 08, 2013

default judgment - 10-day notice - specific reasons - facial defect - motion to strike - timeliness not a factor

Oswald v. WB Public Square Association – Pa. Super. November 7, 2012

Under Pa. R.C.P. 237.1(a)(2), a notice of intent to take default judgment must include the specific reasons why the defendant is in default.   The language in the form specified by the rule states that "you are in default because….. [emphasis added].  The rule requires more than merely stating the the defendant is in default for failure to take action required in the case – which was the language required under the pre-1994 rule.

This decision is based in large part on the Cmwlth. Court decision in David J. Lane Advertising, 33 A.3d 674 (Pa. Cmwlth. ) which the Superior Court found "highly instructive." 

A notice which does not comply with the rule is defective on its face and is not subject to the discretion of the trial court.  It is a "fatal defect on the face of the record" and "cannot support a default judgment."  Therefore, it is "void ab initio" and timeliness of the petition to strike is not a factor as it would be for a judgment was merely voidable.  The prothonorary is "without authority" to enter such a void judgment, which is a "legal nullity" and "must be stricken without regard to the passage of time."