Grady v. Nelson – Pa. Super. – reported, precedential decision – October 21, 2022
https://www.pacourts.us/assets/opinions/Superior/out/J-A20028-22o%20-%20105315222201672548.pdf?cb=1
Petition to strike – defect on face of record -- 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. [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. A fatal defect on the face of the record denies the prothonotary the authority to enter judgment. When a prothonotary enters judgment without authority, that judgment is void ab initio. 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. Penn National Mutual Casualty Insurance Company v. Phillips, 276 A.3d 268, 273-74 (Pa. Super. 2022) (citations and indentations omitted). Further, “[w]here a fatal defect or irregularity is apparent from the face of the record, the prothonotary will be held to have lacked the authority to enter [a] default judgment and the default judgment will be considered void.” Keller v. Mey, 67 A.3d 1, 4 (Pa. Super. 2013). A litigant may seek to strike a void judgment at any time. Domus, Inc. v. Signature Building Systems of Pa, LLC, 252 A.3d 628, 640 (Pa. 2021).
Process served at non-existent address -- In this case, a fatal defect existed on the face of the record at the time of entry of judgment as evidenced by the sheriff’s return of service: the use of a non-existent address, 1075 Price Street, for service of the complaint and judgment notices. One of the fundamental objectives of the Rules of Civil Procedure is to ensure that litigants receive proper notice of all proceedings. The duty to make proper service begins with service of original process. Sharp v. Valley Forge Medical Center and Heart Hospital, Inc., 221 A.2d 185, 187 (Pa. 1966) (rules relating to service of original process “must be strictly followed”). This duty continues throughout all stages of the case. Pennsylvania Rule of Civil Procedure 440 provides, “Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action.” Pa.R.Civ.P. 440(a)(1). When there is no attorney of record for the defendant,4 “service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile[.]” Id. If the plaintiff seeks a default judgment due to the defendant’s failure to answer the complaint, the plaintiff must “mail[] or deliver[]” a written notice of intent to enter judgment to the defendant at least ten days before filing a praecipe for entry of judgment. Pa.R.Civ.P. 237.1(a)(2). Further, when the plaintiff files the praecipe, he must certify that he served the defendant with the ten-day notice and attach a copy of the notice to the praecipe. Pa.R.Civ.P. 237.1(a)(2)-(4). Finally, the prothonotary must mail all orders and notices of judgment to the defendant. Pa.R.Civ.P. 236(a)(2). Notices required under the Rules are ineffective if they are sent to an incorrect address. Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773 (Pa. Super. 1983)
Invalid ten-day notice of intent to take default judgment -- The Rules of Civil Procedure prohibit the prothonotary from entering default judgment against a party “unless the praecipe for entry includes a certification that a 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.Civ.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.Civ.P. 237.5.
The ten-day notice sent in this case provided in relevant part, “You are in default because you have failed [to] take action required of you in this case.” We held in Penn National and Oswald that ten-day notices containing precisely this same language were defective because they did not substantially comply with Rule 237.5. The Penn National court reasoned:
In Oswald, . . . the plaintiff initiated an action against the defendant by filing a complaint with proper service. After the defendant failed to respond to the complaint, the plaintiff sent the defendant notice of her intention to file a praecipe for default judgment. The default judgment notice provided in Oswald stated, in relevant part, “You are in default because you have failed to take action required of you in this case.” Id. at 796 (emphasis omitted). This Court found that this language was ‘deficient’ since the notice failed to state “specific reasons why the defendant is in default.” Id. (quoting City of Philadelphia v. David J. Lane Advertising, Inc., 33 A.3d 674, 679 (Pa. Cmwlth. 2011)). Thus, this Court concluded the notice of default judgment rendered the notice ‘defective on its face,’ as the document was ‘not “substantially” in the form required by Rule 237.5.’ Oswald, 80 A.3d at 796.
