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MEMBERS 1 FEDERAL : IN THE COURT OF COMMON PLEAS OF
CREDIT UNION : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
KATHLEEN P. FLANNERY, :
DEFENDANT : NO. 10-5667 CIVIL
IN RE: PETITION TO STRIKE OFF DEFAULT JUDGMENT
ORDER OF COURT
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AND NOW
, this 11 day of July, 2011, upon consideration of the Petition to Strike Off
Default Judgment filed on behalf of Kathleen P. Flannery and Theresa Moran (the “Petition”),
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Members 1 Federal Credit Union’s Response thereto, and after oral argument,
IT IS HEREBY ORDERED AND DIRECTED
that:
DENIED
1. The Petition is .
2. The stay of action imposed by order dated May 26, 2011, is lifted and
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Members 1 is hereby permitted to proceed to Sheriff’s Sale in this matter.
By the Court,
M. L. Ebert, Jr., J.
Karl M. Ledebohm, Esquire
Attorney for Plaintiff
P. O. Box 173
New Cumberland, PA 17070-0173
Douglas P. France, Esquire
Attorney for Defendant
2675 Eastern Blvd.
York, PA 17402-2095
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MEMBERS 1 FEDERAL : IN THE COURT OF COMMON PLEAS OF
CREDIT UNION : CUMBERLAND COUNTY, PENNSYLVANIA
PLAINTIFF :
:
V. :
:
KATHLEEN P. FLANNERY, :
DEFENDANT : NO. 10-5667 CIVIL
IN RE: PETITION TO STRIKE OFF DEFAULT JUDGMENT
OPINION AND ORDER OF COURT
Background
Pending before this Court is Defendant, Kathleen P. Flannery’s, Petition to Strike Off
Default Judgment (“Petition”). On October 25, 2010, a judgment was entered against the
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Defendant in favor of Plaintiff, Members 1 Federal Credit Union. Judgment arises from failure
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of the Defendant to make payments under a Credit Card Agreement and Disclosure between the
parties.
A brief procedural history is provided to better illustrate the timeframe of events
occurring before this Court. This civil action commenced with a Notice to Defend and Claim
Rights and Plaintiff’s Complaint filed on September 1, 2010. On September 14, 2010, the
Sheriff’s Return of Service was filed. On October 25, 2010, Plaintiff filed a Praecipe to enter
judgment against Defendant for failure to file an Answer to the Complaint. On February 8, 2010,
Plaintiff filed a Praecipe for Writ of Execution directed to the Sheriff of Cumberland County,
Pennsylvania, an Affidavit Pursuant to Rule 3129.1, and a Notice of Sheriff’s Sale of Real
Estate. On March 14, 2011, Plaintiff filed a Praecipe for Amended Writ of Execution directed to
the Sheriff of Henrico County, Virginia. On April 18, 2011, Plaintiff filed a Praecipe to Make
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Plaintiff’s Praecipe Requesting Judgment, filed Oct. 25, 2010.
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Plaintiff’s Complaint, filed Sept. 1, 2010, ¶ 12.
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Affidavit of Service Part of Record. On April 27, 2011, Plaintiff filed an Affidavit of Service of
Notice to Lien Holders Pursuant to Pa. R.C.P. 3129.2(c). On May 24, 2011, Defendant filed a
Petition to Strike Off the Default Judgment. This being the Default Judgment which had been
entered by the Plaintiff on October 25, 2010. On May 31, 2011, Plaintiff filed a Response to
Petition to Strike Off Default Judgment leading to the present controversy. Oral argument on the
matter was held on June 24, 2011.
Discussion
In US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. Ct. 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
only for
demurrer to the record. A petition to strike the judgment may be granted
a fatal defect or irregularity
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
for the purpose of a petition to strike a judgment, a court may only look at what
was in the record when the judgment was entered.” Id. at 90, 700 A.2d at 917.
Id. at 991 (emphasis added). Additionally the Court went on to say, “where 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 default judgment and the default judgment will be considered void.” Id.
(citing State Farm Ins. Co. v. Barton, 905 A.2d 993 (Pa. Super. Ct. 2006)). 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. Ct.
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. Ct. 1986) (finding no fatal defect where typed signature of attorney was in
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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. Ct. 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. Ct. 1979) (finding no fatal defect where
verification by attorney was not in strict compliance with the language of Rule 1024).
Although a fact specific analysis, often in conjunction with the Pennsylvania Rules of
Civil Procedure (“Pa.R.C.P.”), is applied in 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,
or the possibility of an amendment of an error, would not prejudice the defendant or third
persons. See Atlantic Nat’l Trust, L.L.C. v. Stivala Invs., Inc., 922 A.2d 919, 923 (Pa. Super. Ct.
2007) (stating “Because [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 [Appelant]’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
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insistence on precise, formal adherence, benefits neither the judicial system nor those utilizing
that system.” Monroe Contract Corp., 405 A.2d at 958.
At oral argument the Defendant relied heavily on the Supreme Court case, Cintas Corp.
v. Lee’s Cleaning Servs., 700 A.2d 915 (Pa. 1997). The Court reversed the Order of the Superior
Court and reinstated the Trial Court’s Order denying the petition to strike. 700 A.2d 915, 920
(Pa. 1997). At issue before the Court was whether the record supporting the default judgment
was fatally defective because service violations of Pa.R.C.P. No. 405 and 425. Id. at 917. The
Plaintiff admitted that 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 the fatal defect
commonly found in failure of service versus the 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 case before this Court, the issue is whether the Praecipe for entry of default
judgment (“Praecipe”) incorrectly stating Rule 3031, instead of Rule 1037, rises to the level of a
fatal defect requiring a grant of Defendant’s Petition to Strike Off the Default Judgment.
The power of the Prothonotary to enter a judgment in favor of a party is limited under
Rule 1037 to two ministerial functions: (1) enter a judgment of non pros against a plaintiff failing
to file a complaint after a writ of summons against defendant was filed; and (2) enter a judgment
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against defendant for failing to file an answer to a proper complaint. See Gotwalt v. Dellinger,
577 A.2d 623, 625 (Pa. Super. Ct. 1990). Although Defendant correctly asserts that a
Prothonotary who enters a judgment outside the power of Rule 1037 is void, in the present case
the Prothonotary performed the authorized ministerial act of entering a judgment within the
boundaries and spirit of Rule 1037(b). See id. at 626. The Plaintiff’s technical, clerical error in
misstating the rule did not change the intended and actual action taken by the Prothonotary.
The facts and procedural history present a situation where although a clerical error was
made in the Praecipe, the defect was neither confusing, nor did it result in any prejudice to the
Defendant. The Plaintiff’s Praecipe surrounds the incorrectly stated rule with language
commonly associated with an entry of default judgment pursuant to Pa.R.C.P. No. 1037:
Please enter judgment in the above captioned proceeding in favor of
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Members 1 Federal Credit Union, Plaintiff, and against the Defendant,
KATHLEEN P. FLANNERY, in the amount of EIGHTEEN THOUSAND TWO
HUNDRED THIRTY-SIX AND 60/100 DOLLARS ($18,236.60) plus interest at
the legal rate on and after entry of judgment until the date of payment, additional
attorney’s fees and cost of suit. Judgment is entered pursuant to Pa. R.C.P. 3031
for failure to file an Answer
on behalf of Defendant, Kathleen P. Flannery, to
Complaint within twenty (20) days of service thereof and after a
Plaintiff’s
10-day Notice was sent.
(emphasis added). Aside from the clerical error of stating “3031”, no language associated with or
reference to a “Judgment of Revival. Lien” corresponding to Pa.R.C.P. No. 3031 is apparent in
the Plaintiff’s Praecipe. Also, the notices of intent to take default judgment provided the
Defendant with additional warning:
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.
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Although Rule 1037 is not specifically stated, the Defendant is given notice of the default
judgment that may be entered. Finally, the Defendant, after waiting nine months from the filing
of Plaintiff’s Complaint, now asks this Court to strike a meritorious judgment based upon a
technical clerical error, with no claim of prejudice. We cannot in this case be so “astute” in
enforcing a technicality as to defeat a meritorious claim.
Accordingly the following order is entered:
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AND NOW
, this 11 day of July, 2011, upon consideration of the Petition to
Strike Off Default Judgment filed on behalf of Kathleen P. Flannery and Theresa Moran (the
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“Petition”), Members 1 Federal Credit Union’s Response thereto, and after oral argument,
IT IS HEREBY ORDERED AND DIRECTED
that:
DENIED
1. The Petition is .
2. The stay of action imposed by order dated May 26, 2011, is lifted and
st
Members 1 is hereby permitted to proceed to Sheriff’s Sale in this matter.
By the Court,
M. L. Ebert, Jr., J.
Karl M. Ledebohm, Esquire
Attorney for Plaintiff
P. O. Box 173
New Cumberland, PA 17070-0173
Douglas P. France, Esquire
Attorney for Defendant
2675 Eastern Blvd.
York, PA 17402-2095
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