J-S30032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 AMANDA B. CRUZ, AS                      : IN THE SUPERIOR COURT OF
 ADMINISTRATRIX OF THE ESTATE OF         :        PENNSYLVANIA
 ANTHONY C. LOHIER AND AMANDA            :
 B. CRUZ AND MICHAEL LOHIER, IN          :
 THEIR OWN RIGHT                         :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 THE MIDWIVES & ASSOCIATES,              :
 INC., LAURICE L. DUNNING, R.N.          :
 A/K/A LAURICE STEVENS DUNNING,          :
 AND WILLIAM H. DUNNING,                 :
                                         :
                   Appellants            : No. 172 EDA 2019

              Appeal from the Order Entered December 3, 2018
               in the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2017-C-3103

BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JULY 30, 2019

     The Midwives & Associates, Inc. (“Midwives & Associates”), Laurice L.

Dunning, R.N., a/k/a Laurice Stevens Dunning (“Laurice”), and William H.

Dunning (collectively, “Defendants”), appeal from the Order denying their

Petition to Open the default Judgment entered against them and in favor of

Amanda B. Cruz (“Cruz”), as administratrix of the Estate of Anthony C. Lohier,

and Amanda B. Cruz and Michael Lohier, in their own right (collectively,

“Plaintiffs”). We strike the Judgment and remand for further proceedings.

     On October 9, 2017, Plaintiffs filed a Writ of Summons against

Defendants. The Sheriff of Lehigh County served Defendants with the Writ of
J-S30032-19


Summons on October 18, 2017. On June 4, 2018, Plaintiffs filed a Complaint,

including a Notice to Defend, and mailed it to Defendants on the same date.1

On July 5, 2018, Plaintiffs filed Certificates of Merit with the Prothonotary, and

on the same date, served Defendants with same via mail. Pursuant to the

Notice to Defend and Pa.R.C.P. 1042.4,2 Defendants were required to file a

responsive pleading to Plaintiffs’ Complaint within twenty days after service of

the Certificates of Merit. The twenty days elapsed on July 25, 2018, without

Defendants having filed any responsive pleadings.

       On July 26, 2018, Plaintiffs served identical “Notice[(s)] of Intention to

File Praecipe for Default Judgment Pursuant to Pa.R.C.P. 237.1” (collectively,

“the Default Notice”) upon each defendant via mail. Notably to this appeal,

the Default Notice states as follows:

                                IMPORTANT NOTICE

       YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE
       ACTION REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT
       WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A
       JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING
____________________________________________


1 The Complaint averred that Laurice, a registered nurse and midwife doing
business through Midwives & Associates, committed medical malpractice and
related torts. Specifically, Plaintiffs asserted that Laurice was negligent in her
medical treatment of Cruz, while Cruz was pregnant, which caused the death
of Cruz’s son a few days after his birth. Laurice did not have malpractice
insurance in place when she received the Complaint, and no insurer provided
her legal counsel.

2 Pennsylvania Rule of Civil Procedure 1042.4 provides that “[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.” Id.

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J-S30032-19


      AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT
      RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT
      ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD
      ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND
      OUT WHERE YOU CAN GET HELP:

                             Lawyer Referral Service
                          Lehigh County Bar Association
                            1114 West Walnut Street
                               Allentown, PA 18102
                                   610-433-6204

Praecipe to Enter Judgment by Default, 8/9/18, Exhibit E (bold and

capitalization in original).

      The ten-day period elapsed without the Defendants having entered an

appearance or filing a responsive pleading.      On August 9, 2018, a default

Judgment was entered against Defendants. A Notice of the entry of the default

Judgment was mailed to Defendants on the same date.

      On August 21, 2018, twelve days after the entry of the default

Judgment, Defendants filed a Petition to Open, and attached thereto an

Answer and New Matter, pursuant to Pa.R.C.P. 237.3(a). After the hearing on

the Petition to Open, the trial court denied the Petition by an Opinion and

Order entered on December 3, 2018.          Defendants timely filed a Notice of

Appeal. The trial court did not order Defendants to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

      Defendants present the following issues for our review:

      1. Did the trial court commit an error of law in determining that
         Defendants[’] Petition to Open should not be granted because
         Defendants failed to establish that their “failure to appear”
         could be “excused”?

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J-S30032-19



       2. Did the trial court manifestly abuse its discretion in determining
          that Defendants[’] Petition to Open should not be granted
          because Defendants failed to establish that their “failure to
          appear” could be “excused”?

Brief for Defendants at 7 (some capitalization omitted).

    Our standard of review is well settled:

       A petition to open a default judgment is an appeal to the equitable
       powers of the court. The decision to grant or deny a petition
       to open a default judgment is within the sound discretion of the
       trial court, and we will not overturn that decision absent
       a manifest abuse of discretion or error of law.

U.S. Bank Nat’l Ass’n for Pa. Hous. Fin. Agency v. Watters, 163 A.3d

1019, 1028 (Pa. Super. 2017) (citation omitted).

       The opening of a default judgment is governed by Pa.R.C.P. 237.3.

When a party files a petition to open default judgment within ten days of the

entry of the judgment on the docket, then a trial court must open the

judgment. See Pa.R.C.P. 237.3(b)(1); Attix v. Lehman, 925 A.2d 864, 867

(Pa. Super. 2007).3 But, if the moving party files a petition to open more than

10 days after the entry of judgment (as Defendants did in the instant case),

then the party must meet the common law standards for opening a default

judgment set forth in the three-prong test outlined by the Pennsylvania


____________________________________________


3 The Attix Court additionally explained that “[t]he purpose of a default
judgment is to prevent a dilatory defendant from impeding the plaintiff in
establishing his claim; it is not a means by which a plaintiff can quickly obtain
judgment without the difficulties of litigation.” Attix, 925 A.2d at 867 (citation
and quotations omitted). Therefore, default judgments are “generally not
favored.” Id. at 866.

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J-S30032-19


Supreme Court in Schultz v. Erie Ins. Exch., 477 A.2d 471 (Pa. 1984).

Under Schultz, a trial court may open a default judgment when the moving

party establishes that “(1) the petition has been promptly filed; (2) a

meritorious defense can be shown; and (3) the failure to appear can be

excused.” Id. at 472 (emphasis omitted).      If the petition fails to satisfy any

prong of the test, then the petition must be denied. Watters, 163 A.3d at

1028.

        Here, the trial court found that Defendants met the first two prongs of

the Schultz test.    See Trial Court Opinion and Order, 12/3/18, at 3, 8-9.

However, the court found that Defendants failed to meet the third prong, i.e.,

that Defendants’ failure to act was “excusable.” See id. at 3-8.

        Under the specific circumstances of this case, we need not address the

Schultz factors.    Rather, we will strike the default judgment on our own

petition, because the notice of default judgment in this case was defective on

its face, based on this Court’s decision in AmeriChoice Fed. Credit Union v.

Ross, 135 A.3d 1018 (Pa. Super. 2015). In that case, AmeriChoice, the

lender of an overdue mortgage to the defendants (“Homeowners”), caused a

default judgment to be entered against Homeowners, after (1) Homeowners

failed to file responsive pleadings to the Complaint; and (2) AmeriChoice

mailed to Homeowners, pursuant to Pa.R.C.P. 237.1, a notice of AmeriChoice’s

intention to file a praecipe for default judgment (“Notice”), to which

Homeowners did not timely respond. Ross, 135 A.3d at 1021. In announcing


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J-S30032-19


its holding that the trial court erred in denying Homeowners’ Petition to strike

the default judgment, this Court stated as follows:

      Of relevance to this appeal, [Pa.R.C.P.] 237.1(a)(2) prohibits the
      trial court prothonotary from entering default judgment against a
      party “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.” Pa.R.C.P. 237.1(a)(2)(ii). [Pa.R.C.P.]
      237.5 requires the 237.1(a)(2) notice to “substantially” comply
      with the following format:

         (CAPTION)

         To: -------------------   (Defendant)

         Date of Notice: -----------------

         IMPORTANT NOTICE

         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.

         YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT
         ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR
         TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE
         CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
         LAWYER.

         IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE
         MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT
         AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
         PERSONS AT A REDUCED FEE OR NO FEE.

         -----------------

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J-S30032-19


        (Name of Office)

        -----------------
        (Address of Office)

        -----------------
        (Telephone Number)

        -----------------
        (Signature of Plaintiff or Attorney)

        -----------------
        (Address)

     Pa.R.C.P. 237.5.

           Homeowners assert that AmeriChoice’s Notice failed to
     substantially comply with Rule 237.5, thus depriving the trial
     court’s prothonotary of the authority to enter default judgment
     pursuant to Rule 237.1.       In support of their argument,
     Homeowners rely upon Oswald v. WB Pub. Square Assocs.,
     LLC, 2013 PA Super 289, 80 A.3d 790 (Pa. Super. 2013), and City
     of Philadelphia v. David J. Lane Adver., Inc., 33 A.3d 674,
     679 (Pa. Commw. 2011).

           In Oswald, the plaintiff initiated an action against the
     defendant by filing a complaint with proper service. After the
     defendant failed to respond to the complaint, the plaintiff sent the
     defendant notice of her intention to file a praecipe for default
     judgment. The default judgment notice provided in Oswald
     stated, in relevant part, “You are in default because you have
     failed to take action required of you in this case.” Id. at 796
     (emphasis added). The Oswald Court found that this language
     was “deficient,” as the notice failed to state “specific reasons
     why the defendant is in default.” Id. at 796 (quoting David J.
     Lane Adver., Inc., 33 A.3d at 679) (emphasis in the original).
     The Court concluded that failing to include specific reasons for the
     defendant’s default in the notice of default judgment renders the
     notice “defective on its face,” as the document is “not
     ‘substantially’ in the form required by Rule 237.5.” Id. In so
     holding, the Oswald Court adopted the reasoning of the
     Commonwealth Court in David J. Lane Advertising, wherein it
     explained:


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J-S30032-19


              The general[,] “failed to take action required of you
          in this case” language[,] is consistent with the version
          of the form in Rule 237.5[,] predating a 1994
          amendment (Old Form Notice).               In the 1994
          amendment, which became effective on July 1, 1995,
          the Supreme Court chose to remove this general
          language in the Old Form Notice and to substitute the
          more specific language in the current form – “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.”
          Indeed, it appears from the explanatory comment to
          the rule that the specific purpose of the 1994
          amendment was to add this more specific language to
          the form. The explanatory comment notes that the
          purpose of the modification is to track the language
          set forth in Pa.R.C.P. [] 1018.1 for a notice to plead,
          which language expressly directs the defendant to
          defend by entering an appearance (either personally
          or by attorney) and by filing with the court in writing
          defenses or objections to the claims in the complaint.
          The comment to Rule 237.5 further provides: “Since
          the notice will in many cases be sent to an as yet
          unrepresented defendant, repetition of the notice to
          defend, in modified form[,] helps to stimulate action
          and stem the tide of petitions to open default
          judgments.”

             In adopting the revision to the form, then, the
          Pennsylvania Supreme Court determined that before
          entering judgment by default (which is no insignificant
          matter), it was important to notify a defendant
          specifically what it failed to do (i.e., why it was in
          default) by tracking the language in the earlier-issued
          notice to defend. Rather than informing a defendant
          that he merely “failed to take action required by you
          in this case,” a more specific notice of why the
          defendant was in default that tracks the earlier notice
          to defend serves as a reminder to the defendant in
          many cases unrepresented at that point, of the
          defendant’s specific pleading obligations.

       Id. at 678-79 (internal citations omitted; emphasis in
       original). The Commonwealth Court examined the above

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        legislative and judicial history in the context of its holding in
        Township of Chester v. Steuber, 72 Pa. Commw. 134,
        456 A.2d 669 (Pa. Commw. 1983)[,] and subsequent
        amendments to Rule 237.5. Id. at 678-80. Ultimately, the
        Commonwealth Court concluded that the amendments to
        Rule 237.5 “impose an additional notice requirement on a
        [plaintiff] who wishes to obtain a judgment by default[;] ...
        the [plaintiff] must now include in the Ten-Day Notice
        specific reasons why the defendant is in default.” David
        J. Lane Advertising, 33 A.3d at 679 (emphasis in original).

     Oswald, 80 A.3d at 795-96 (footnote omitted, emphasis in the
     original).

           The Notice provided by AmeriChoice to Homeowners in the
     case at bar stated, in relevant part, “You are in default because
     you have failed to take action required of you in this case.”
     AmeriChoice’s Praecipe for Default Judgment, 6/4/13, at 2
     (emphasis added). This is identical to the language contained in
     the deficient notice of default judgment provided in Oswald.
     See Oswald, 80 A.3d at 796. …

                                     ***

            The law is clear that generally, default judgments are
     disfavored. Attix[, supra]. AmeriChoice failed to provide any
     indication on the face of the Notice of precisely why default
     judgment would be entered against Homeowners.                   This
     constitutes a failure to comply with the format contained in
     Pa.R.C.P. 237.5, and thus constitutes a violation of Pa.R.C.P.
     237.1(a)(2). … “It is well established that a record which reflects
     a failure to comply with Pa.R.C.P. 237.1 is facially defective and
     cannot support a default judgment.” Oswald, 80 A.3d at 796
     (citation omitted). “Furthermore, since the prothonotary lacks
     authority to enter judgment under these circumstances, the
     default judgment would be void ab initio.” Id. at 797 (citation
     and italicization omitted). A default judgment that is void ab initio
     “must be stricken without regard to the passage of time.” Id. We
     therefore reverse the trial court’s order denying Homeowners’
     petition to strike the default judgment entered in this matter and
     remand the case for further proceedings.




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J-S30032-19


Ross, 135 A.3d at 1023-26 (citations to parties’ briefs and some brackets

omitted).

      In the instant case, the language in the Default Notice is identical to the

language ruled to be insufficient in Ross and Oswald, and it is thus facially

defective.   See Praecipe to Enter Judgment by Default, 8/9/18, Exhibit E

(stating, in relevant part, “[y]ou are in default because you have failed to take

action required of you in this case.” (capitalization omitted)). Therefore, the

default Judgment against Defendants was void ab initio and must be




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stricken. See AmeriChoice, supra; Oswald, supra.4

       Default Judgment against Defendants is stricken. Case remanded for

further proceedings. Jurisdiction relinquished.




____________________________________________


4 We acknowledge that Defendants did not raise the issue of the defective
language in the Default Notice before the trial court or on appeal. We note
the following language in Oswald:

       Appellant’s original petition challenging [a]ppellee’s default
       judgment[, as in the instant case,] exclusively discussed the issue
       of opening the default judgment. Generally, this Court will decline
       to address issues not first raised before the trial court. Pa.R.A.P.
       302(a). However, we have long held that a litigant may seek to
       strike a void judgment at any time. See Erie Insurance Co. v.
       Bullard, 2003 PA Super 448, 839 A.2d 383, 388 (Pa. Super.
       2003) …. This Court also permits litigants to attack allegedly void
       decrees for the first time on appeal. Mother’s Restaurant v.
       Krystkiewicz, 2004 PA Super 411, 861 A.2d 327, 337 (Pa. Super.
       2004) ….

Oswald, 80 A.3d at 793 n.2 (some internal citations omitted). As was the
situation in Oswald, the default Judgment here was void ab initio, not
voidable, and thus subject to being stricken at any time, even though
Defendants did not challenge the Default Notice on appeal. See id. at 797
(stating that “judgments which are void ab initio are those which the
prothonotary was without authority to enter in the first place. Such judgments
are not voidable, but are legal nullities.” (citation and quotation marks
omitted)). Moreover, our Pennsylvania Supreme Court has stated that void
judgments are a “mere blur on the record, [] which it is the duty of the court[,]
of its own motion[,] to strike off, whenever its attention is called to it.” M &
P Management, L.P. v. Williams, 937 A.2d 398, 401 (Pa. 2007) (emphasis
added) (quoting Romberger v. Romberger, 139 A. 159, 160 (Pa. 1927)).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/19




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