J. A10012/17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ROBERT DUNCAN & LEAH MANN,                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                          APPELLANT            :
                    v.                         :
                                               :
PROJECT HOME, 1212 LUDLOW LP AND               :
JOAN D. MCCONNON                               :
                                               :
                                               :   No. 3054 EDA 2015

                   Appeal from the Order September 15, 2015
              In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): February Term, 2015, No. 2882

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 23, 2017

        Appellant, Robert Duncan, appeals pro se from the trial court’s May

13, 2015 Order granting the Petition to Strike Default Judgment filed by

Appellees, Project H.O.M.E., 1212 Ludlow, LP, and Joan D. McConnon, and

the September 15, 2015 Order sustaining Appellees’ Preliminary Objections

and dismissing Appellant’s Complaint. After careful review, we affirm.

        On   February    15,   2015,   Appellant   and   Leah   Mann1   (“Mann”)

(collectively “Plaintiffs”) commenced this action by filing a Complaint against

Appellees, in which Plaintiffs alleged that Appellees committed acts of

misconduct while Plaintiffs were residents of Project H.O.M.E. and during




1
    Leah Mann is not a party to this appeal.
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Appellant’s eviction from Project H.O.M.E.2    An Affidavit of Service shows

that Plaintiffs served Appellees with the Complaint on February 26, 2016.

      On March 9, 2015, counsel for Appellees entered their appearances.

On March 30, 2015, Plaintiffs allegedly forwarded a Notice of Intent to Enter

Default Judgment pursuant to Pa.R.C.P. No. 237.1. (“10-day Notice”) to

Appellees’ counsel.

      On April 10, 2015, Plaintiffs entered Default Judgment against

Appellees by praecipe. On April 16, 2015, Appellees filed a Petition to Strike

Default Judgment, in which they alleged that Appellees’ counsel did not

receive the 10-day Notice Plaintiffs purportedly sent to counsel, and that

Plaintiffs never sent the 10-day Notice to Appellees, as required by Pa.R.C.P.

No. 237.1(a)(2)(ii).3

      On May 13, 2015, the trial court granted Appellees’ Petition and struck

the Default Judgment.4


2
  With regard to the allegations in the Complaint, the trial court concluded
that Plaintiffs “did not plead any cause of action in their Complaint. This
[c]ourt assumed that the Plaintiffs were alleging malicious prosecution and
defamation of character in their Complaint; however, the Plaintiffs at no
point actually identified these theories in their Complaint.” Trial Ct. Op.,
6/21/16, at 4.
3
  Rule 237.1(a)(2)(ii) requires a party seeking entry of Judgment by default
to provide Notice of Intent to Enter Default Judgment to both the “party
against whom judgment is to be entered and to the party’s attorney of
record, if any.” Pa.R.C.P. No. 237.1(a)(2)(ii).
4
 On June 2, 2015, Appellant filed an appeal from the May 13, 2015 Order.
This Court quashed that appeal as interlocutory on July 10, 2015. See



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     On May 14, 2015, Appellees filed Preliminary Objections to the

Complaint. On June 16, 2015, the trial court entered an order specifically

directing Plaintiffs to file a Response to Appellees’ Preliminary Objections;

however, Plaintiffs did not comply. Therefore, on September 15, 2015, the

court entered an Order sustaining Appellees’ Preliminary Objections and

dismissing the Complaint.

      Appellant filed a Notice of Appeal on September 30, 2015. The trial

court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.

     Appellant raises the following three issues for our review, which we

reproduce here verbatim:

        1. Did the trial court err in “strike default judgment of
        defendants,” and “stricken” the default judgment entered
        in favor of Plaintiffs, without first implying the Stabley
        Test showing the three (3) elements: (1) the first prong
        being timeliness, (2) the second prong being an
        reasonable excuse of its delay to plead, and (3) the third
        prong being a meritorious defense and abusing its
        discretion by not conducting an hearing to better
        determine whether or not the ten (10) day notice letters
        were in fact mailed to all Defendants and Attorney’s of
        record in accordance with Pa.R.Civ.P. 237.1(2)(ii). As
        these notices was needed before being certified for the
        default judgment entry?

        2. Did the trial court err when it misapplied the law and
        failed to exercise fair judgment when it allow the Appellees
        too baldly file the “Petition to Strike Judgment” without an
        rule to show cause, in violating Pa.R.Civ.P. 206.2(a),
        and New Rule 206.4(a), as well as 206.7(a)?



Duncan v. Project H.O.M.E, et al., No. 1728 EDA 2015 (Pa. Super. filed
Sept. 1, 2015).



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           3. Did the trial court err in granting Defendants
           preliminary objection and dismissing the Plaintiffs
           Complaint and not require Appellants to file an Pa.R.A.P.
           1925(b), as Appellants would have been penalized under
           the bright-line rule for failure to comply.

      Appellant’s Brief at 4.

      In his first issue, Appellant challenges the trial court’s May 13, 2015

Order granting Appellees’ Petition to Strike Default Judgment. Id. at 9-10.

Initially, we note that Appellant has confused the remedy of striking the

Default    Judgment,    which   occurred   here,   with   opening     the   Default

Judgment, which did not occur here. Id. Striking a judgment and opening a

judgment are distinct remedies, and have distinct standards of review on

appeal.5

      Here, Appellees filed a Petition to Strike the Default Judgment,

alleging that Appellant failed to comply with the dual notice requirement,

certification,   and   attachment   requirements    of    Pa.R.C.P.   No.   237.1.


5
  A Petition to Strike operates as a demurrer to the record. Keller v. Mey,
67 A.3d 1, 4 (Pa. Super. 2013). Where a fatal defect or irregularity is
apparent from the face of the record, the court must strike the Judgment as
void. Id. (citation omitted). Because a Petition to Strike raises a question
of law, our standard of review is de novo and our scope of review is plenary.
Oswald v. WB Public Square Assoc., LLC, 80 A.3d 790, 793 (Pa. Super.
2013). A Petition to Open a Judgment is an appeal to the court's equitable
powers and is a matter of judicial discretion. Cargitlada v. Binks Mfg. Co.,
837 A.2d 547, 550 (Pa. Super. 2003). In contrast to a Petition to Strike,
when considering a Petition to Open a Judgment, the court may consider
matters outside of the record. Id. “A petition to open default judgment is
discretionary; to reverse, we must find either a manifest abuse of discretion
or an error of law by the trial court.” Oswald, 80 A.3d at 794 n.3.




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Appellees did not file, and the court did not grant, a Petition to Open Default

Judgment.     Appellant has not claimed or argued in his Brief that the trial

court erred in striking the Default Judgment.          Therefore, Appellant has

waived any challenge to the Order striking the Default Judgment.               See

Pa.R.A.P. 2119; see also MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d

980, 992 (Pa. Super. 2007) (“Appellants have the burden of developing their

claims on appeal; arguments that are not appropriately developed are

waived.”).

      In his second issue, Appellant baldly claims the trial court erred in

granting Appellees’ Petition to Strike Judgment without first holding a

hearing to investigate the veracity of Appellees’ claim that their counsel did

not receive the Rule 237.1 Notice of Intent to Enter Default Judgment.

Appellant’s   Brief   at   10-11.     Appellant   claims   this   conduct   violated

“Pa.R.Civ.P. 206.2(a), and New Rule 206.4(a), as well as 206.7(a)[.]” Id. at

10.

      Appellant’s reliance on Pa.R.C.P. No. 206.4 is woefully misplaced, and

in fact, undermines this claim in its entirety.       Rule 206.4 requires that,

generally, petition practice should proceed upon a Rule to Show Cause.

Pa.R.C.P. No. 206.4(a)(1).          The rule also provides, in relevant part,

however, that “[a] judgment shall be stricken without the issuance of a rule

to show cause when there is a defect on the face of the record that




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constitutes a ground for striking a default judgment.”             Pa.R.C.P. No.

206.4(a)(2).6

      Here, the trial court found a fatal defect on the face of the record—

Appellant’s failure to comply with the notice requirements of Rule 237.1.

Thus, the court was required to grant Appellees’ Petition to Strike.         See

Keller, 67 A.3d at 4. Rule 206.4(a)(2) expressly permitted the trial court to

do so without first holding a hearing.

      Appellant has likewise failed to demonstrate the relevance of Pa.R.C.P.

Nos. 206.2(a) and 206.7(a). Rule 206.2(a) provides that “[a]n answer shall

state the material facts which constitute the defense to the petition.” See

No. Pa.R.C.P. 206.2(a). Rule 206.7(a) provides that, “[i]f an answer is not

filed, all averments of fact in the petition may be deemed admitted for the

purposes of this subdivision and the court shall enter an appropriate order.”

See Pa.R.C.P. No. 206.7(a). Accordingly, this claim also fails.

      In his last issue, Appellant claims the trial court erred in sustaining

Appellees’ Preliminary Objections.       Appellant’s Brief at 4.   Appellant does

not, however, set forth any argument in support of this claim in his Brief to

this Court.     Accordingly, it is waived.      See Pa.R.A.P. 2119; see also

MacNutt, supra.


6
  Rule 206.5(e) reiterates that a court need not hold a rule to show cause
hearing before striking a judgment by default where grounds for doing so
are apparent on the face of the record. See Pa.R.C.P. No. 206.5(e).




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      Appellant also alleges in this issue that the court erred in not requiring

him to file a Pa.R.A.P. 1925(b) Statement, “as Appellant[] would had [sic]

been penalized under the bright-line rule for failure to comply.”      Id. at 4,

11-12. It appears here that Appellant’s “logic” is as follows: the trial court

was so deeply concerned with the propriety of its rulings and their ability to

withstand appellate scrutiny that it did not order Appellant to file a Rule

1925(b) Statement in an effort to cause him to waive his issues on appeal.

Appellant apparently believes that the failure to file a Rule 1925(b)

Statement results in waiver of all issues on appeal, even if the trial court

does not order an appellant to file a Rule 1925(b) Statement.         This is, of

course, not the case.

      It is entirely within the trial court’s discretion to order an appellant to

file a Rule 1925(b) Statement.        See Pa.R.A.P. 1925(b) (“If the judge

entering the order giving rise to the [N]otice of [A]ppeal (“judge”) desires

clarification of the errors complained of on appeal, the judge may enter an

[O]rder directing the appellant to file of record in the trial court and serve on

the judge a concise statement of the errors complained of on appeal

(“Statement”)” (emphasis added)).

      Furthermore, an appellant’s issues on appeal are waived only when the

trial court orders him to file a Rule 1925(b) Statement and he fails to

comply.   See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)

(“[I]n order to preserve their claims for appellate review, [a]ppellants must



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comply whenever the trial court orders them to file a Statement of Matters

Complained of on Appeal pursuant to Rule 1925.”).    This issue, therefore,

lacks merit.

      Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2017




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