J-A06032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALASDAIR WILSON & EILEEN                :   IN THE SUPERIOR COURT OF
WILSON, H/W                             :        PENNSYLVANIA
                                        :
                  Appellants            :
                                        :
                                        :
            v.                          :
                                        :
                                        :   No. 2294 EDA 2016
ANDREW TEPLICA, D.P.M.                  :

               Appeal from the Judgment Entered July 1, 2016
              In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): No. 08-2468


BEFORE:    PANELLA, J., SHOGAN, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                            FILED JUNE 13, 2017

     Appellants, Alasdair Wilson and Eileen Wilson, appeal from the

judgment entered July 1, 2016 in favor of Appellee following a jury trial. At

issue is the court’s decision to strike a default judgment entered in

Appellants’ favor on November 10, 2014. We affirm.

     In March 2008, Appellants commenced a medical malpractice action by

filing a writ of summons. In December 2008, Appellants filed a complaint.

On January 12, 2009, Appellants filed a certificate of merit. On January 13,

2009, Appellants mailed notice of intent to seek default judgment pursuant

to Pa.R.C.P. 237.1.   On February 6, 2009, Appellants filed a praecipe for

default judgment and on the same day, the court entered the default

judgment against Appellee.
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      In June 2014, Appellants filed a petition to schedule a hearing to

assess damages.         In July 2014, Appellee entered an appearance and

responded with a petition to preclude damages recovery or in the alternative

to strike/open the default judgment.     Following additional briefing by the

parties and a hearing, the court issued an order granting Appellee’s petition

to strike the default judgment on November 10, 2014.

      Following discovery, motions in limine, and voir dire, the case went to

a jury trial. A jury entered a verdict in favor of Appellee on April 27, 2016.

Appellants timely filed a post-trial motion, which the trial court denied. See

Order, 6/2/2016.        Appellants timely filed an appeal and court-ordered

1925(b) statement. The trial court issued a responsive opinion.

      On appeal, Appellants raise the following issue:

      Whether the [l]ower [c]ourt erred in striking the default
      judgment entered against [Appellee] where he failed to establish
      that a fatal defect in the judgement appeared on the face of the
      record?

Appellants’ Br. at 5.

      Appellants contend that the court’s decision to strike the default

judgment entered was improper. An appeal regarding a petition to strike a

default judgment implicates the procedural rules of court and presents

questions of law. Green Acres Rehab. v. Sullivan, 113 A.3d 1261, 1267

(Pa. Super. 2015).      Where, as here, an appeal presents questions of law,

“‘our standard of review is de novo and our scope of review is plenary.’” Id.




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(quoting Oswald v. WB Public Square Associates, LLC, 80 A.3d 790, 793

(Pa. Super. 2013)).

      As we have explained:

      “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.”       Midwest Financial
      Acceptance Corp. v. Lopez, 78 A.3d 614, 622–23 (Pa. Super.
      2013). “[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.” [Oswald, 80 A.3d] at 794. A fatal
      defect on the face of the record denies the prothonotary the
      authority to enter judgment. Erie Ins. Co. v. Bullard, 839 A.2d
      383, 388 (Pa. Super. 2003).         When a prothonotary enters
      judgment without authority, that judgment is void ab initio. Id.
      “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.” Cintas Corp. v. Lee's Cleaning
      Services, 700 A.2d 915, 917 (Pa. 1997).

Green Acres Rehab., 113 A.3d at 1267–68.

      Here, the trial court stated that its basis for striking the default

judgment was Appellant’s failure to comply with Rule 237.1(a)(2). “The rule

seeks to ensure that default judgments are not entered without the

defendant's knowledge.” Erie Ins. Co., 839 A.2d at 387 (citing Brown v.

Great Atlantic & Pacific Tea Co., 460 A.2d 773 (Pa. Super. 1983)). The

rule explicitly requires that the notice of intention to enter a judgment by

default be mailed “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.C.P. 237.1(a)(2).

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J-A06032-17



      Here, Appellants mailed their Rule 237.1 notice the day after filing

their certificate of merit. The trial court correctly observed that entering a

default judgment ten days thereafter was improper. Under Rule 1042.4, a

“defendant against whom a professional liability claim is asserted shall file a

responsive pleading within the time required by Rule 1026 or within twenty

days after service of the certificate of merit on that defendant, whichever is

later.” Pa.R.C.P. 1042.4. Accordingly, Appellee had twenty days to respond

to the complaint as a matter of law from when the certificate was filed on

January 12, 2009. See Pa.R.C.P. 1042.4.

      As noted by the court, “[t]he earliest default judgment could have

properly been entered by [the prothonotary] pursuant to Rule 237.1 was

February 13, 2009.”    Trial Ct. Op., 8/1/2016, at 7.    In other words, the

prothonotary lacked authority to enter a default judgment before the

responsive pleading time expired pursuant to Pa.R.C.P. 1042.4 and

Appellants’ Rule 237.1 notice was legally insufficient to sustain the entry of

judgment.   Thus, the default judgment was void ab initio.     See Erie Ins.

Co., 839 A.2d at 387. Accordingly, the court did not commit an error of law

in striking the judgment.

      Judgment affirmed.




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J-A06032-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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