J-A04008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    SKANSKA USA BUILDING, INC.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    UNIVERSAL CONCRETE PRODUCTS                :
    CORP.                                      :
                                               :   No. 1820 EDA 2019
                       Appellant               :

                   Appeal from the Order Entered May 20, 2019
              In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): No. 16-20521


BEFORE:      PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                       March 25, 2020

        Universal Concrete Products Corporation (“Universal”) appeals from the

order denying its third appeal concerning a default judgment entered against

it.1 This appeal challenges the trial court’s denial of Universal’s fourth petition,

its second petition seeking to strike the default judgment as void ab initio.

Appellee, Skanska USA Building, Inc. (“Skanska”) maintains that Universal’s



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*   Retired Senior Judge assigned to the Superior Court.

1  Universal claims jurisdiction arises pursuant to Pennsylvania Rule of
Appellate Procedure 341 (final orders). This Court has jurisdiction pursuant to
Pa.R.A.P. 311(a)(1) (allowing an appeal as of right from “[a]n order refusing
to open, vacate, or strike off a judgment”); see also Mother’s Rest. Inc. v.
Krystkiewicz, 861 A.2d 327, 332 (Pa. Super. 2004) (en banc).
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challenge to the judgment is barred by the doctrine of res judicata, waiver,

and the law of the case.2 On independent review, we agree. Moreover,

Universal’s issues would not merit relief. Accordingly, we affirm.

       On August 22, 2016, Skanska filed a complaint alleging Universal had

breached its contractual duties by failing to remedy deficient craftsmanship at

a hospital. Skanska alleged that after Universal refused to remedy the

deficiencies, Skanska had to hire another subcontractor to fix them.

       It is undisputed that Universal did not file an answer to the complaint.

Accordingly, on October 25, 2016, Skanska filed a praecipe to enter default

judgment in the amount of $354,373.13.

       Three days later, Universal filed a petition to open the default judgment.

Universal alleged that the petition was promptly filed and contained a

meritorious defense. The trial court denied the petition on December 15, 2016.

       While its motion for reconsideration was pending, Universal filed two

more petitions within several hours of each other.

       First, it filed a petition to strike the default judgment, asserting that

Skanska had not properly served the notice of intent to take default judgment.

The petition to strike also asserted that Universal had failed to join an

indispensable party, the owner of the hospital.



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2 On October 3, 2019, this Court, per curiam, denied Skanska’s motion to
dismiss without prejudice to its raising the issue with this panel.


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      Universal also filed another petition to open the default judgment. In

the new petition to open, Universal asserted that it never received Skanska’s

notice of intent to enter a default judgment. Instead, while it was awaiting a

response from its insurance carrier on Skanska’s claims, the first notice it

received was that of Skanska’s entry of default judgment.

      However, on that same day, Universal also filed a notice of appeal to

this Court. We affirmed. See Skanska USA Bldg. Inc. v. Universal

Concrete Products Corp., 384 EDA 2017 (Pa. Super. filed February 20,

2018) (unpublished memorandum), reargument denied April 18, 2018, appeal

denied, 195 A.3d 565 (Pa. 2018). The panel noted that the two petitions filed

on the same day as the notice of appeal were “legal nullities.” Id., at *6 n.2.

      After the Supreme Court of Pennsylvania refused allowance of appeal,

Universal filed a praecipe in the trial court for argument on the second petition

to open default judgment. The trial court denied the second petition to open

without argument on November 7, 2018.

      Universal filed a second appeal shortly thereafter. In its concise

statement, Universal identified the two issues it wished to raise on appeal:

      1. Whether the Prothonotary exceeded its authority in entering
         judgment including assessment of unliquidated damages
         without a hearing where the Complaint did not establish an
         amount of damages in a sum certain or that could be made
         certain by calculation?

      2. Whether the judgment is void ab initio since the Prothonotary
         exceeded its authority in entering judgment including
         assessment of unliquidated damages without a hearing.


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Statement of Matters Complained of on Appeal, 1/4/19.

        This Court responded by issuing a rule to show cause. We directed

Universal to show why the appeal was not controlled by the outcome of the

previous appeal. Universal filed a one-sentence response indicating that it did

not oppose the dismissal of the appeal, “recognizing that this Court previously

affirmed an order denying the Petition to Open, thereby addressing and

resolving the issues raised in the present matter.” Answer, 1/31/19. This Court

therefore issued an order dismissing the second appeal, noting that the issues

in the appeal were either waived or controlled by the law of the case. See

Order, 3705 EDA 2018, 2/4/19.

        A little over a month later, Universal filed a second petition to strike the

default judgment. In this petition, Universal presented two bases for its

contention that the default judgment was void ab initio. First, Universal

claimed that it was not entered against a proper legal entity. Specifically,

Universal contended that the judgment was entered against “Universal

Concrete Products Corp.” and not “Universal Concrete Products Corporation,

Inc.”

        Second, it asserted that the Prothonotary exceeded its authority by

entering judgment for a specific sum, which included attorneys’ fees and costs.

Universal argues the Prothonotary did not have the power to define damages

in the absence of a sum certain in Skanska’s complaint.




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      The trial court denied the second petition to strike on May 20, 2019. In

its order, the court reasoned that Universal had waived the arguments in the

second petition to strike when it did not contest the dismissal of its appeal

from the denial of its first petition to strike. This timely appeal followed.

      On appeal, Universal first argues that the trial court erred in finding the

issues in the second petition to strike waived. Universal correctly notes that a

“void judgment may be attacked at any time.” Graham v. Kutler, 418 A.2d

676, 677 (Pa. Super. 1980). As a result, normal waiver rules do not apply to

claims that a judgment is void ab initio. See Mother’s, 861 A.2d at 337

(recognizing that the Superior Court has allowed litigants to attack void

judgments without first preserving the issue in the trial court); see also

Northern Forests II, Inc. v. Keta Realty Co., 130 A.3d 19, 34-35 (Pa.

Super. 2015) (void judgment stricken twenty-four years after entry).

      However, even if we conclude the court’s reasoning was improper, we

may affirm if any proper basis exists for the court’s ruling. See The Brickman

Group, Ltd. v. CGU, Inc., 865 A.2d 918, 928 (Pa. Super. 2004) (“We are not

bound by the trial court’s rationale, and may affirm on any basis”). We

therefore turn to Universal’s assertions that the judgment is void.

      First, Universal contends the judgment is void because the prothonotary

was not authorized to assess damages when entering default judgment. While

Universal argues this is a non-waivable challenge to an ultra vires action taken




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by the prothonotary, see Appellant’s Brief, at 20, we conclude Universal has

mischaracterized its argument.

      Universal’s petition to strike the default judgment is a creature of

common law. See AmeriChoice Federal Credit Union v. Ross, 135 A.3d

1018, 1023 (Pa. Super. 2015). Such petitions may only be granted for a fatal

defect or irregularity apparent from the face of the record. See id. As such,

to be successful, the petitioner must establish the existence of defects that

affect the validity of the judgment. See id. Further, in deciding the petition,

the court is limited to the content of the record at the time the judgment was

entered. See id. The petition does not, however, provide the petitioner with

the opportunity to review the merits of the allegations supporting the

judgment. See id.

      Lack of jurisdiction is a defect sufficient to justify granting a petition to

strike. See Northern Forests, 130 A.3d 19, 28 (Pa. Super. 2015). Further,

a prothonotary is not authorized to assess damages when entering a default

judgment in the absence of a well-pleaded sum certain or facts capable of

providing   damages     pursuant    to    simple   calculation.   See   Pa.R.Civ.P.

1037(b)(1).

        However, both this Court and the Commonwealth Court have held that

the issue of the prothonotary’s power to assess damages under Rule

1037(b)(1) is distinct from the issue of the prothonotary’s jurisdiction to enter

default judgment. See Maiorana v. Farmers & Merchants Bank, 466 A.2d


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188, 191 (Pa. Super. 1983); Reaves v. Knauer, 979 A.2d 404, 412 (Pa.

Cmwlth. 2009). As a result, Universal’s first alleged basis for striking the

judgment is not an actual challenge to the validity of the default judgment.

This allegation was therefore not a sufficient basis for striking the judgment.

      Next, Universal argues the judgment is void based on its assertion that

Skanska improperly named Universal in the complaint. Universal’s argument

on this point consists of three sentences:

      The judgment was also not properly entered against Universal.
      [Skanska] sued and sought entry of judgment against the non-
      legal name of Universal. The judgment is irregular because it was
      not entered against a legal entity.

Appellant’s Brief, at 22 (citations to reproduced record omitted).

      Clearly, Universal’s brief fails to develop this argument in a meaningful

manner and violates multiple requirements of the Rules of Appellate

Procedure. This argument is not divided into a separate part from its

contention that the prothonotary acted without authority in assessing

damages. See Pa.R.A.P. 2119(a). Further, this specific argument contains no

citation to applicable authorities. See Pa.R.A.P. 2119(b).      As noted, the

argument on this issue consists of three sentences.

      “When a party’s brief fails to conform to the Rules of Appellate Procedure

and the defects are substantial, this Court may, in its discretion, quash or

dismiss       the       appeal       pursuant         to     Rule        2101.”

Giant Food Stores, LLC v. THF Silver Spring Development, L.P., 959

A.2d 438, 443 (Pa. Super. 2008) (citing Pa.R.A.P. 2101).          Furthermore,

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“[w]hen issues are not properly raised and developed in briefs, when the briefs

are wholly inadequate to present specific issues for review[,] a Court will not

consider the merits thereof.” Branch Banking and Trust v. Gesiorski, 904

A.2d 939, 942-943 (Pa. Super. 2006).

      We conclude Universal has waived this issue by failing to properly

develop it on appeal. In any event, we note that Universal has participated in

this litigation, including two prior appeals, without raising this issue. Even if it

had developed a cognizable argument, we would find it waived due to

Universal’s failure to raise it prior to this appeal. See Grimm v. Grimm, 149

A.3d 77, 83 (Pa. Super. 2016) (“personal jurisdiction is readily waivable”).

      As we conclude Universal did not present any valid grounds for striking

the default judgment, we affirm.

      Order affirmed.

      Judge Colins joins the memorandum.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/25/20




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