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WILLIAM GEORGES, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
V. :
:
CONTEMPORARY :
STREETWEAR, LLC, :
DEFENDANT : NO. 11-1213 CIVIL
IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT
ORDER OF COURT
th
AND NOW
, this 12 day of September, 2011, upon consideration of the Petition to
Open/Strike Default Judgment filed on behalf of Contemporary Streetwear, LLC, William
Georges’ Response thereto, and after oral argument,
IT IS HEREBY ORDERED AND DIRECTEDDENIED
that the Petition is .
By the Court,
M. L. Ebert, Jr., J.
Samuel L. Andes, Esquire
Attorney for Plaintiff
John F. Yaninek, Esquire
Attorney for Defendant
WILLIAM GEORGES, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
:
V. :
:
CONTEMPORARY :
STREETWEAR, LLC, :
DEFENDANT : NO. 11-1213 CIVIL
IN RE: PETITION TO OPEN/STRIKE DEFAULT JUDGMENT
OPINION AND ORDER OF COURT
Ebert, Jr., September 12, 2011 -
Background
Pending before this Court is Defendant’s, Contemporary Streetwear, LLC, Petition to
Open/Strike Default Judgment. On June 2, 2011, a judgment was entered against Defendant in
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favor of Plaintiff, William Georges. Judgment arises from the failure of Defendant to pay
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monies owed to Plaintiff under an agreement between the parties.
A brief procedural history is provided to better illustrate the timeframe of events before
this Court. This civil action commenced with a Notice and Complaint filed on February 2, 2011.
On March 17, 2011, the Sheriff’s Return of Service was filed and stated that the Notice and
Complaint was unclaimed. On March 17, 2011, Plaintiff filed a Praecipe to reinstate the
Complaint. On May 25, 2011, Plaintiff filed an Affidavit of Service by Certified Mail with a
return receipt card showing a date of delivery to Defendant on April 26, 2011. On June 2, 2011,
Plaintiff filed a Praecipe to enter default judgment (“Praecipe”) against Defendant for failure to
file an Answer to Plaintiff’s Complaint. The Praecipe stated that Notice of Default was served to
Defendant on May 19, 2011. That document bore the heading IMPORTANT NOTICE.
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Plaintiff’s Praecipe Requesting Judgment, filed Feb. 2, 2011.
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Plaintiff’s Complaint, filed Feb. 2, 2011, ¶¶ 6-13.
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On June 15, 2011, Defendant filed a Petition to Open/Strike Default Judgment
(“Petition”). On July 7, 2011, Plaintiff filed an Answer to Defendant’s Petition. Oral argument
on the matter was held on August 23, 2011.
Discussion
A. Petition to Strike
In US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009), the Superior Court of
Pennsylvania described a petition to strike judgment as follows:
A petition to strike a judgment is a common law proceeding which operates as a
demurrer to the record. A petition to strike the judgment may be granted only for
fatal defect or irregularity
a appearing on the face of the record . . . . An order of
the court striking a judgment annuls the original judgment and the parties are left
as if no judgment had been entered.
Cintas Corp. v. Lee’s Cleaning Servs., 549 Pa. 84, 89-90, 700 A.2d 915, 917
(1997). Also, “[w]hen deciding if there are fatal defects on the face of the record
a court may only look at what
for the purpose of a petition to strike a judgment,
was in the record when the judgment was entered
.” Id. at 90, 700 A.2d at 917.
Id. at 991 (emphasis added). A case-by-case analysis has been used when determining whether a
“fatal defect” existed to warrant the grant for a petition to strike a judgment. See, e.g., Erie Ins.
Co. v. Bullard, 839 A.2d 383 (Pa. Super. 2003) (finding a fatal defect where insurer failed to
comply with Rule 237.1 in forwarding notice of intent to enter a praecipe for default judgment to
insured); Malizia v. Beckley, 513 A.2d 417 (Pa. Super. 1986) (finding no fatal defect where
typed signature of attorney was in substantially the form required by Rule 237.1(c)); George H.
Althof, Inc., v. Spartans Inns of America, Inc., 441 A.2d 1236 (Pa. Super. 1982) (finding no fatal
defect where verification by attorney failed to set forth information required by Rule 1024(c));
Monroe Contract Corp. v. Harrison Square, Inc., 405 A.2d 954 (Pa. Super. 1979) (finding no
fatal defect where verification by attorney was not in strict compliance with the language of Rule
1024).
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Although a fact specific analysis, done in conjunction with the Pennsylvania Rules of
Civil Procedure (“Pa.R.C.P.”), is applied when determining if a fatal defect exists on the face of
the record, “courts should not be astute in enforcing technicalities to defeat apparently
meritorious claims[.]” West Penn Sand & Gravel Co. v. Shippingport Sand Co., 80 A.2d 84, 86
(Pa. 1951). When a defect does not lead to confusion, or is inconsequential to a meritorious
claim, a petition to strike a judgment should not be granted. See Malizia, 513 A.2d at 419;
Monroe Contract Corp., 405 A.2d at 957.
An error can be classified as a non-fatal defect when the error on the face of the record
would not prejudice the defendant. See Atlantic Nat’l Trust, L.L.C. v. Stivala Invs., Inc., 922
A.2d 919, 923 (Pa. Super. 2007) (stating “[b]ecause [Appellant] did not make any allegations of
prejudice due to [Appellee]’s failure to conform to Pa.R.C.P. 2952(a)(5), we hold that the trial
court did not err when it denied [Appellant]’s petition to strike….”); George H. Althof, Inc., 441
A.2d at 1238; Monroe Contract Corp., 405 A.2d at 959 (“It would not be in the best interests of
judicial economy to remand the matter for the sole purpose of effecting a miniscule and purely
formal amendment.”). The Superior Court has said, “[w]hile we do not, of course, condone
willful noncompliance with our procedural rules, a hypertechnical reading of each clause, and a
blind insistence on precise, formal adherence, benefits neither the judicial system nor those
utilizing that system.” Monroe Contract Corp., 405 A.2d at 958.
In the often cited Supreme Court case, Cintas Corp. v. Lee’s Cleaning Servs. - dealing
with a petition to strike judgment, the Court reversed the Order of the Superior Court and
reinstated the Trial Court’s Order denying the petition. 700 A.2d 915, 920 (Pa. 1997). At issue
before the Court was whether the record supporting the default judgment was fatally defective
because of service violations under Pa.R.C.P. 405 and 425. Id. at 917. Plaintiff admitted that
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return of service was defective under Rule 405(a) because Howard Zavodnick instead of Albert
Zavodnick, the person who actually made service, completed the return of service. Id. The Court
in reaching its decision distinguished between a fatal defect commonly found in failure of service
versus a non-fatal defect of incorrect return of service:
Thus, improper service is not merely a procedural defect that can be ignored when
a defendant subsequently learns of the action against him or her. However, the
absence of or a defect in a return of service does not necessarily divest a court of
jurisdiction of a defendant who was properly served.
Id. at 918 (internal citations omitted). Although the Court found a specific violation of a rule of
civil procedure on the face of the record, “the return of service contained sufficient information
for a court to determine that service was proper, and any noncompliance with Rule 405(a) did
not render service fatally defective.” Id.
In the Petition to Strike before this Court, the issue is whether Plaintiff’s omission of a
portion of the IMPORTANT NOTICE (“notice”) as stated in Rule 237.5 rises to the level of a
fatal defect requiring a grant of Defendant’s Petition to Strike Default Judgment. The notice
portion of Rule 237.5 states:
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.
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Pa. R. Civ. P. 237.5.
First, this Court finds that there is no defect on the face of the record. Omission of the
example language contained in the last paragraph of Rule 237.5 does not constitute a defect
because the essential requirement of notice pursuant to Rule 237.1 has been achieved. Defendant
rightfully suggests that Plaintiff could have merely reproduced verbatim the example language
supplied in Rule 237.5 to ensure proper notice pursuant to Rule 237.1. However, Defendant fails
to recognize that proper notice can still be achieved without strict copying of the example
substantially
language. Id. (“The notice required by Rule 237.1(a)(2) shall be in the following
form…” (emphasis added)). Although Plaintiff did not include verbatim the language used in
Rule 237.5 which became effective on September 1, 2003, what was included still “informs the
defendant of the need for action, the consequences of default and where he can obtain a
lawyer[,]” as per the purpose of the notice requirement of Rule 237.1(a)(2)(ii). Id. at Explanatory
Comment--1994, Form of Notice. While the Court does not condone the fact that Plaintiff used
the old language recited in Rule 237.5 which was used prior to September 1, 2003, there is no
question that a corporation like Contemporary Streetwear would somehow be eligible for free
legal services. Equally important, is the fact that Contemporary was in fact in contact with
private counsel during this timeframe.
Second, even if the Court was to find that the omission is a defect, the defect would not
rise to the level of being “fatal” so as to warrant the grant of Defendant’s Petition. The facts and
procedural history here present a situation where even as a defect, the omission was neither
confusing, nor did it result in any prejudice to Defendant. After waiting almost two months after
the complaint was received, Defendant filed a petition to strike and never asserted that a lack of
knowledge or necessity for obtaining counsel at a reduced fee, or no fee, was prejudicial or even
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necessary for meeting the deadlines for filing an answer to the complaint. Instead, Defendant
asks this Court to grant the petition to strike based upon an immaterial claim to further delay an
award for Plaintiff. We cannot in this case be so “astute” in enforcing a technicality as to defeat a
meritorious judgment.
B. Petition to Open
A decision to open judgment is within the “court’s sound discretion, and, on appeal, the
order of the court below will only be reversed for clear abuse of discretion.” Berkowitz v. Kass,
40 A.2d 691, 691 (Pa. 1945). The Superior Court in Myers v. Wells Fargo Bank, N.A. reiterates
the well-established requirements:
Generally speaking, a default judgment may be opened if the moving party has (1)
promptly filed a petition to open the default judgment, (2) provided a reasonable
excuse or explanation for failing to file a responsive pleading, and (3) pleaded a
meritorious defense to the allegations contained in the complaint.
986 A.2d 171, 175-76 (Pa. Super. 2009). Additionally, a trial court may not open a default
all
judgment unless the moving party can meet three prongs. Id. at 176.
The Myers court further elaborated on the first prong stating, “[i]n cases where the
appellate courts have found a ‘prompt’ and timely filing of the petition to open a default
judgment, the period of delay has normally been less than one month.” Id. In the present case,
Defendant filed the Petition on June 15, 2011, within a month of being served with a notice of
default on May 19, 2011. Therefore, the first prong has been satisfied.
The Myers court then addressed the second prong stating, “whether an excuse is
legitimate is not easily answered and depends upon the specific circumstances of the case. The
appellate courts have usually addressed the question of legitimate excuse in the context of an
excuse for failure to respond to the original complaint in a timely fashion.” Id. at 177. The Myers
trial court denied the petition to open judgment based upon the defendant’s, U.S. Bank, failure to
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satisfy the second prong. Id. The Superior Court upheld the determination that U.S. Bank did not
provide a legitimate excuse for failing to file a responsive pleading based upon the assertion that
a clerical error and miscommunication between counsel and in-house counsel was the excuse for
delay. Id. The Court did not find that U.S. Bank’s “failure to answer was due to an oversight, an
unintentional omission to act, or a mistake of the rights and duties of the appellant, [thus] the
default judgment may [not] be opened.” Id. (internal quotations omitted). This Court takes note
of the Superior Court’s distinction between a stricter standard of a corporate defendant over a
layperson when making a determination of whether a reasonable excuse in delay exists. Id. (“The
Reid court emphasized the fact that the appellant was a layperson and not a corporate defendant
with the means to monitor its legal claims.”).
In the present case, the record is clear that Plaintiff’s complaint was served upon the
corporate Defendant on April 26, 2011. Defendant took no action. On May 19, twenty-three (23)
days after the complaint was served, Plaintiff notified Defendant of the intent to claim a default
judgment. Defendant still took no immediate action. Instead, Defendant waited another twenty-
seven (27) days before filing its first response, the petition to strike/open default judgment.
Defendant offers its status as an out-of-state entity as the reasonable excuse or
explanation as to why a responsive pleading was not timely filed. This Court finds this excuse or
explanation unpersuasive. Defendant had initially contacted local counsel and as a result of a
dispute or negotiation in payment, counsel did not enter an appearance until June 15, 2011. The
delay in obtaining counsel does not excuse Defendant of its responsibilities to timely file a
responsive pleading. This Court finds it clear that the failure of Defendant to file a timely
responsive pleading was not due to an oversight, unintentional omission, or a mistake of its
rights and duties. This Court will not grant Defendant’s petition to open default judgment
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because Defendant has failed to meet the second prong; namely failing to provide a reasonable
excuse or explanation as to why a timely responsive pleading was not filed. See Myers, 986 A.2d
at 178 (citing US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2009) (affirming denial of
petition to open even though trial court failed to analyze third prong of meritorious defense since
other prongs were not met); McCoy v. Public Acceptance Corp., 305 A.2d 698 (Pa. 1973)
(indicating all three factors must be met before default judgment may be opened and having
concluded the appellant did not adequately explain the failure to answer the complaint, the trial
court was justified in refusing to open the judgment)). At this juncture, justice would not be best
served in further delaying Plaintiff’s meritorious judgment.
Finally, even if the previous two prongs had been satisfied, Defendant has failed to state a
meritorious defense. Defendant is required under the third prong to “plead a defense that would
precise, specific and clear
justify relief if proved at trial and a defense that is set forth in
terms
.” American Express Centurion Bank v. Morley, 17 Pa. D. & C.5th 1, 2010 WL 5860732
(citing Penn-Delco School District v. Bell Atlantic-PA, 745 A.2d 14, 19 (Pa. Super. 1999))
(emphasis added). This Court on June 22, 2011, issued an Order to be decided under Pa.R.C.P.
206.7 for Plaintiff to show cause, file an Answer to the Petition, and have all Depositions
completed by July 29, 2011. Rule 206.7(c) states:
If an answer is filed raising disputed issues of material fact, the petitioner may
take depositions on those issues, or such other discovery as the court allows,
within the time set forth in the order of the court. If the petitioner does not do so,
the petition shall be decided on petition and answer and all averments of fact
responsive to the petition and properly pleaded in the answer shall be deemed
admitted for the purpose of this subdivision.
Pa. R. Civ. P. 206.7(c). Plaintiff filed an Answer disputing the issues of material fact set forth in
Defendant’s Petition in a timely fashion. Defendant failed to take depositions on the issues of
material fact disputed in the Answer to the Petition before July 29, 2011, and thus, the Court
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accepted as true all Plaintiffs’ properly pled averments in response to Defendant’s Petition. See
McCoy v. Mahoney, 820 A.2d 736, 739-40 (Pa. Super. 2003) (“Using the procedure outlined in
Pa.R.C.P. 206.7(c), we find the trial court should have credited Husband’s specific denials and
deemed his related averments of fact admitted.”). Defendant supports its Petition with Exhibit E,
a proposed Answer to Plaintiff’s Complaint, in an attempt to raise a meritorious defense. Exhibit
E provides general denials of Plaintiff’s averments and provides the following proposed New
Matter:
16. Plaintiff has failed to set forth a claim for which relief may be granted.
17. Plaintiff may have failed to mitigate his damages.
18. Plaintiff’s claim may be barred by the expiration of the applicable statute of
limitations.
19. Plaintiff is not entitled to interest or costs of suit.
20. Plaintiff’s claims may be barred by the affirmative defenses of laches,
collateral estoppel, release, accord and satisfaction, waiver and/or rescission.
21. Plaintiff’s averred damages are over-valued, over stated and/or speculative.
Defendant’s attempt to provide a defense is the antithesis of being “precise, specific and clear.”
This Court, pursuant to a previous Order in accordance with Rule 206.7(c), cannot find a
meritorious defense within the Petition and will not take into account the documents filed by
Defendant on August 22, 2011.
Conclusion
This Court finds no fatal defect on the face of the record because Plaintiff complied with
the intention of notice pursuant to Rule 237.1(a)(2) and will deny the petition to strike default
judgment. Also, this Court may not consider Defendant’s petition to open because Defendant has
failed to meet two of the three prongs required. Additionally, Defendant has repeatedly failed to
comply with the Pennsylvania Rules of Civil Procedure. This Court refuses to indulge Defendant
in unjustifiably prolonging Plaintiff’s claim and further delaying a meritorious judgment.
Accordingly the following order is entered:
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AND NOW
, this 12 day of September, 2011, upon consideration of the Petition
to Open/Strike Default Judgment filed on behalf of Contemporary Streetwear, LLC, William
Georges’ Response thereto, and after oral argument,
IT IS HEREBY ORDERED AND DIRECTEDDENIED
that the Petition is .
By the Court,
M. L. Ebert, Jr., J.
Samuel L. Andes, Esquire
Attorney for Plaintiff
John F. Yaninek, Esquire
Attorney for Defendant
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