HomeMy WebLinkAbout2011-1213 (2)
WILLIAM GEORGES, : IN THE COURT OF COMMON PLEAS OF
PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
CONTEMPORARY STREETWEAR, :
LLC, :
DEFENDANT : NO. 11-1213 CIVIL
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Ebert, Jr., J. November 9, 2011 –
Defendant filed a motion to strike/open default judgment entered for Plaintiff, which was
denied by opinion filed September 12, 2011. Defendant filed this appeal on October 11, 2011.
On November 2, 2011, the Defendant filed a Concise Statement of matters Complained of on
Appeal. The Concise Statement raises the following issues:
1. Did the trial court commit an error of law or abuse its
discretion in denying Defendant’s Petition to Strike the
Default Judgment because Defendant demonstrated
that the Notice was facially defective in that it did not
strictly comply with Pa.R.C.P. No. 237.5?
2. Did the trial court commit an error of law or abuse its
discretion in denying Defendant’s Petition to Open the
Default Judgment because Defendant promptly filed its
Petition to open; the Defendant provided a reasonable
excuse or explanation for failing to timely file its
responsive pleadings; and Defendant’s Answer pleads
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a meritorious defense to the allegations of the Complaint?
DISCUSSION
This Court previously filed a ten-page opinion on October 12, 2011, which deals with the
legal issues presented in the case at length. This opinion is filed pursuant to Pa. R.A.P. 1925(a) to
supplement the prior opinion and more specifically address the issue of what constitutes a facial
defect in a Notice of Praecipe to Enter Judgment by Default in light of the recent Commonwealth
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Defendant’s Concise Statement of Matters Complained of on Appeal.
Court opinion filed October 4, 2011, in City of Philadelphia v. David J. Lane Advertising, Inc.,
No. 1449 (Pa. Commw., Oct. 4, 2011).
Plaintiff’s counsel used the below quoted language in its “IMPORTANT NOTICE” to
Defendant pursuant to Pa. R.C.P. 237.5 (“Rule 237.5”):
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARNCE 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
(10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE
ENTERED AGAIST 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
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HELP. (Emphasis Added)
The underlined portion was used in and quoted from the previous version of Rule 237.5.
With respect to the warning of specific reason of deficiency and notice of default, the
language is verbatim the same as the most current Rule 237.5. The only noticeably
different language deals with the notice of right to and availability of free counsel, which
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was modified somewhat in the newest version of the rule.
In City of Phila. v. David J. Lane Adver., Inc., the Commonwealth Court held that
a Plaintiff must give notice to “the defendant that it is in default, notify the defendant that
the plaintiff intends to seek a default judgment if action is not taken within ten (10) days,
and include some indicia of notice to legal counsel for the defendant, if
represented…[and] the plaintiff must now include in the 10-Day
Notice specific reasons why the defendant is in default.” Id. (emphasis in original). The
court went on to emphasize in that case the Plaintiff’s notice was fatally deficient because
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Plaintiff’s Praecipe, filed June 2, 2011. Below the quoted paragraph was the Cumberland County Bar Association’s
address and telephone number.
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Pa. R.C.P. 237.5
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it failed to state specific reasons why the defendant was in default. Here, Plaintiff has not
committed such an error.
Plaintiff has only omitted the clause detailing the availability for free legal
counsel for Defendant. Plaintiff’s language does inform Defendant that it should contact
counsel immediately and, if it cannot afford counsel, to contact the Cumberland County
Bar Association. However, this difference between the old Rule 237.5 language and the
new Rule 237.5’s language is not such a significant difference as to justify finding that
the Plaintiff did not substantially comply with the rule. This is further bolstered by the
fact Defendant had employed private counsel for its defense. Free counsel for a corporate
entity was never an issue. In short, the notice was not “facially defective.”
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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