Keller v. Mey

• Decision Date: 10 April 2013
• Citation: 2013 PA Super 79,67 A.3d 1
• Court: Pennsylvania Superior Court
• Parties: David KELLER, Appellee v. Michael R. MEY, a/k/a Michael R. Mey, Esquire, et al., and Mey & Sulla, L.L.P., et al., Appellants.

67 A.3d 1

2013 PA Super 79

David KELLER, Appellee

v.Michael R. MEY, a/k/a Michael R. Mey, Esquire, et al., and Mey & Sulla, L.L.P., et al., Appellants.

Superior Court of Pennsylvania.

Submitted March 4, 2013.

Filed April 10, 2013.

Brian C. Corcoran, Kingston, for appellants.

Richard C. Frank, Jim Thorpe, for appellee.

BEFORE: DONOHUE, ALLEN and OTT, JJ.

OPINION BY DONOHUE, J.:

Michael R. Mey, et al. and Mey & Sulla, et al. (“Appellants”) appeal from the orders denying their motion to strike and petition to open, both of which were filed in response to the entry of default judgment against Appellants and in favor of David Keller (“Keller”). For the following reasons, we affirm.

We are presented with extraordinarily convoluted factual and procedural histories, the complexity of which is compounded by the fact that the certified record on appeal has been compiled in what seems to be no particular sequence, is missing pertinent transcripts and other documents, and contains documents filed in a case that does not involve the parties to this appeal.¹ Nonetheless, from our review of the record we have ascertained that Keller, acting pro se,²

filed a complaint against Appellants on September 3, 2010.³ Appellants did not file a responsive pleading. On October 27, 2010, Keller filed a praecipe for the entry of default judgment and the Prothonotary entered judgment in his favor on that date. On November 9, 2010, Appellants presented a motion to strike the default judgment to the trial court, which resulted in the issuance of a rule to show cause why the default judgment should not be stricken and setting November 17, 2010 as the date for a hearing on Appellants' motion to strike.⁴

The scheduled November 17th hearing on Appellants' motion to strike did not occur until November 22, 2010. There is only a partial transcript of that proceeding in the record which contains only the statements by the parties at the beginning of the hearing. On the same day, the trial court issued another rule to show cause why the motion to strike should not be granted, and set a hearing on the matter for December 16, 2010. The following day, November 23, 2010, Appellants filed a petition to open the default judgment. Court convened on December 16, 2010, but despite the order setting this date for an evidentiary hearing on the motion to strike, the parties presented no evidence and the trial court only heard argument. On December 22, 2010, the trial court entered an order denying only Appellants' petition to open.

In 2011, the case was scheduled for a trial limited to damages. In their pre-trial statement, Appellants raised the fact that there had been no ruling on their motion to strike. Defendants' Pre–Trial Statement, 9/21/11, at 1. On October 5, 2011, the trial court scheduled a settlement conference for November 28, 2011. On November 1, 2011, it entered an order denying Appellants' motion to strike. On November 17, 2011, Appellants filed a notice of appeal from the November 1, 2011 order.

Before we address the issues presented on appeal, we must first decide Appellants' motion to amend their notice of appeal to include the December 22, 2010 order of court denying their petition to open. As a result of the interplay of the Rules of Appellate Procedure and existing case law, the relief requested by Appellants is superfluous.

Although orders of court denying motions to strike or petitions to open default judgments are interlocutory, Pennsylvania Rule of Appellate Procedure 311 provides that “[a]n appeal may be taken as of right ... from [ ] [a]n order refusing to open, vacate or strike off a judgment. If orders opening, vacating or striking off a judgment are sought in the alternative, no appeal may be filed until the court has disposed of each claim for relief.” Pa.R.A.P. 311(a)(1). As such, Appellants could not have appealed from the trial court's denial of their petition to open until the trial court ruled on their motion to strike. Furthermore, the notice of appeal filed with regard to the denial of Appellants' motion to strike encompassed the trial court's prior order denying the petition to open the default judgment. See K.H. v. J.R., 573 Pa. 481, 493, 826 A.2d 863, 871 (2003) (“[A] notice of appeal from the entry of judgment will be viewed as drawing into question any prior non-final orders....”). Accordingly, we deny Appellants' motion as moot and turn to the issues presented on appeal.⁵

First, Appellants contend that the trial court erred in failing to strike the default judgment entered against them because Keller failed to file a copy of the notice to enter default judgment prior to filing the praecipe for default judgment. We consider this issue with the following standard in mind:

‘With regard to a motion to strike a default judgment, [a] court may only look at the facts of record at the time judgment was entered to decide if the record supports the judgment. A petition to strike does not involve the discretion of the court. A petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the face of the record. Matters outside of the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken.’

Aquilino v. Phila. Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa.Super.2005). ‘A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record.’ U.S. Bank, N.A. v. Mallory, 982 A.2d 986, 991 (Pa.Super.2009) (quoting Cintas Corp. v. Lee's Cleaning Servs., 549 Pa. 84, 89–90, 700 A.2d 915, 917 (1997)). ‘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 [a] default judgment and the default judgment will be considered void.’ Id.

Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 920–21 (Pa.Super.2010).

Pennsylvania Rule of Civil Procedure 1037(b) provides, in pertinent part, that “[t]he prothonotary, on praecipe of the plaintiff, shall enter judgment against the defendant for failure to file within the required time a pleading to a complaint which contains a notice to defend[.]”. Pa.R.C.P. 1037(b). Before a prothonotary may enter judgment in accordance with Pa.R.C.P. 1037(b), the plaintiff must provide notice of the intent to seek a default judgment in accordance with Pa.R.C.P. 237.1:

No judgment of ... default for failure to plead shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file 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.

* * *

(3) A copy of the notice shall be attached to the praecipe.

(4) The notice and certification required by this rule may not be waived.

Pa.R.C.P. 237.1(2)(ii), (3), (4).

In the present case, the record reflects that Keller filed his praecipe for default judgment on October 27, 2010 and attached thereto a certification that he sent written notice of his intention to file a praecipe for default judgment, as well as copies of the notices that he sent to Appellants. The 10–day notices that are attached to the praecipe are dated October 7, 2010—more than 10 days prior to the date Keller filed his praecipe for default judgment.

Appellants argue that because a copy of the 10–day notice was filed with the praecipe for a default judgment and not filed prior to the date of the filing of the praecipe, a fatal defect exists so as to preclude the entry of default judgment. Appellants' Brief at 10–14. The trial court rejected this argument, finding that Pa.R.C.P. 237.1 requires only that Keller file a certification that he complied with the 10–day notice requirement (along with a copy of the notice), and does not require that the certification be filed at any specific time prior thereto. Trial Court Opinion, 7/2/12, at 1.

“The interpretation and application of a Pennsylvania Rule of Civil Procedure presents a question of law. Accordingly, to the extent that we are required to interpret a rule of civil procedure, our standard of review is de novo, and our scope of review is plenary.” Gray v. Buonopane, 53 A.3d 829, 834 (Pa.Super.2012).

“Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Pa.R.C.P. 127(b). As set forth above, Pa.R.C.P. 237.1 provides only that a plaintiff seeking the entry of default judgment must file a praecipe and include with the praecipe “a certification that a written notice of intention to file 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[.]” Pa.R.C.P. 237.1(2)(ii). The only other requirement contained in this Rule is that “[a] copy of the notice shall be attached to the praecipe.” Pa.R.C.P. 237.1(3). The language of this Rule is clear and unambiguous. Rule 237.1 does not require the independent filing of the 10–day notice; it only requires that it be attached to the praecipe for default judgment at the time the praecipe is filed.

Appellants cite to two trial court decisions and a local rule of court of Luzerne County in support of their position. None of these help Appellants' cause.⁶ Appellants cite to a case from the Court of Common Pleas, Philadelphia County, Rosser v. Cherry, 75 Pa. D. & C.2d 468 (Pa.Com.Pl.1975), arguing that it involved similar factual circumstances to the case at bar. Appellants' Brief at 11. First, we note that the decision in Rosser predates the adoption of Pa.R.C.P. 237.1. SeePa.R.C.P. 237.1 (stating that it was “[a]dopted Dec. 14, 1979, effective Feb. 1, 1980.”). Accordingly, the holding of ...