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2003 PA Super 448
ERIE INSURANCE COMPANY,
IN THE SUPERIOR COURT OF
No. 3430 EDA 2002
Appeal from the Order Entered October 31, 2002, in the
Court of Common Pleas of Philadelphia County, Civil
Division, at No. August Term, 2001 No. 2642.
BEFORE: STEVENS, BOWES AND MONTEMURO*, JJ.
***Petition for Reargument Filed December 8, 2003***
OPINION BY BOWES, J.:
Filed: November 24, 2003
***Petition for Reargument Withdrawn January 16, 2004***
¶ 1 Shirley Bullard appeals from the order denying her petition to open or
strike a default judgment entered in favor of Erie Insurance Group ("Erie").
Upon review of the record, we reverse the trial court's order and strike the
¶ 2 The following facts are relevant. On December 30, 2000, Appellant
reported the theft of her 1996 Ford Taurus. At the time, Appellant resided
with her twenty-eight-year-old son, Ron Bullard, and her thirty-three-year-
old daughter, Relaida Bullard. Mr. Bullard was the last person to use the
automobile prior to the theft. On the evening of December 29, 2000,
Mr. Bullard secured the automobile and parked it in the rear of Appellant's
residence in front of her garage. The next morning, the car was missing.
The automobile was recovered on February 13, 2001, with no damage
indicative of theft. The windows were intact, the steering column was not
* Retired Justice assigned to the Superior Court.
broken, and there was no trash or personal objects in the car. Erie informed
Appellant that it would tow the car back to her residence, but Appellant
refused, stating that she no longer wanted the car. Erie returned the vehicle
to her nonetheless.
¶ 3 Erie continued its investigation into the suspicious circumstances
surrounding Appellant's claim. Appellant's cooperation with the investigation
was limited. She refused to allow Erie to depose Mr. Bullard, and she failed
to produce certain documents that Erie requested. Appellant did agree,
however, to provide a sworn statement and answer questions while under
oath. Arthur Alexion, Esquire represented Appellant during the deposition.
At the conclusion of its investigation, Erie determined that it was not liable to
Appellant for the alleged theft because Appellant made material
misrepresentations and failed to cooperate with investigators, as she was
required to do under the insurance policy.
¶ 4 On August 24, 2001, Erie commenced this action by filing a complaint
seeking a declaration absolving it from liability under the insurance policy
and demanding damages under the civil provision of Pennsylvania's
insurance fraud statute, 18 Pa.C.S. § 4117, for the cost of investigating
Appellant's fraudulent claim. Appellant failed to respond to the complaint,
and Attorney Alexion never entered his appearance. Erie obtained a default
judgment against Appellant but later withdrew the judgment because service
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¶ 5 On January 4, 2002, Erie sent Appellant notice of its intent to praecipe
for entry of default judgment by mail to Mr. Alexion's office. Neither
Appellant nor Mr. Alexion responded to the notice. On January 29, 2002,
upon praecipe of Erie, the prothonotary entered a default judgment against
¶ 6 Having established Appellant's liability, the trial court scheduled a
hearing on July 1, 2002, to assess Erie's damages. Appellant attended the
trial, but Mr. Alexion was absent. Appellant informed the court that
Mr. Alexion would be late because he was in a criminal trial. The trial court's
tipstaff confirmed this in a telephone conversation with Mr. Alexion. When
Mr. Alexion never arrived, the trial court held a truncated proceeding in his
absence. The court allowed Erie to present documentary evidence of its
damages without laying a testimonial foundation. In addition, it conducted a
colloquy and informed Appellant of the procedural posture of the case.
Appellant, speaking on her own behalf, stated that she was unaware of the
default judgment entered against her on January 29, 2002. The trial court
reiterated that judgment had been entered against her and explained the
nature of the assessment trial. Appellant did not oppose Erie's damage
assessment, and the trial court entered a verdict in favor of Erie for the
amount it requested, $10,056.60.
¶ 7 Appellant did not file post-trial motions or perfect an appeal. Instead,
nearly three months later, she filed an answer to the complaint and a motion
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to open or strike the default judgment based, in part, upon the faulty service
of the ten-day notice of intent to enter default judgment. In addition,
Appellant filed a motion for leave to file a post-trial motion nunc pro tunc on
the basis that Mr. Alexion had been placed on inactive status as of August
21, 1999, and was not licensed to represent her at any point during this
matter. On October 30, 2002, the trial court denied Appellant's petition to
open or strike the default judgment, and by separate order, it denied the
motion for post-trial relief nunc pro tunc. This appeal followed.
¶ 8 Appellant raises the following issues for our review:
Whether the trial court erred in denying the petition to open and strike
the default judgment when Appellant did not receive proper notice of intent
to enter default judgment.
Whether the trial court erred in refusing to grant Appellant leave to file
a motion for post-trial relief nunc pro tunc when she was represented by a
person who was not authorized to practice law in the Commonwealth and
was never informed by him of the default judgment against her.
III. Whether the trial court erred in accepting written evidence of Erie's
damages without a proper testimonial foundation.1
¶ 9 We find that Appellant's first argument has merit, and we vacate the
default judgment entered against her in this matter as void ab initio.
Therefore, we do not address Appellant's remaining claims.
1 We have restated the issues raised in Appellant's brief.
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¶ 10 Although Appellant's petition is labeled, "Petition to Open and Vacate
Judgment," the substance of the petition implicates aspects of both a
petition to strike a default judgment and a petition to open a default
judgment. A petition to strike a default judgment and a petition to open a
default judgment request distinct remedies and generally are not
interchangeable. See Williams v. Wade, 704 A.2d 132 (Pa.Super. 1997).
A petition to open is an appeal to the discretion of the trial court; hence, we
cannot reverse the trial court's determination absent a manifest abuse of
discretion or error of law. Penn-Delco School Dist. v. Bell Atlantic-Pa,
Inc., 745 A.2d 14 (Pa.Super. 1999). Conversely, a petition to strike a
default judgment should be granted where a fatal defect or irregularity
appears on face of record. U.K. LaSalle, Inc. v. Lawless, 618 A.2d 447
(Pa.Super. 1992). "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." Triangle
Printing Co. v. Image Quest, 730 A.2d 998, 999 (Pa.Super. 1999). As
Appellant's dispositive argument raises an issue that is properly framed as a
petition to strike, we address it as such.
¶ 11 Appellant alleges that Erie improperly served her with notice of its
intent to praecipe for default judgment pursuant to Pa.R.C.P. 237.1, and that
defect, which is apparent on the face of the record, voids the default
judgment and the damage award that flowed from it. Erie concedes that it
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did not send the notice to Appellant directly but contends that Appellant has
waived this argument on appeal pursuant to Pa.R.A.P 2119(a) for failing to
develop a legal argument or cite to pertinent authority. We disagree with
Erie's contention. Although Appellant's legal argument admittedly is slight,
she cites Pa.R.C.P. 237.1(a), the dispositive authority in this matter.
¶ 12 Pursuant to Pa.R.C.P. 237.1(a), a party seeking default judgment must
provide the opposing party with a ten-day notice of its intent to obtain a
default judgment. That section provides as follows:
(2) No judgment of non pros for failure to file a complaint or by
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
. . . .
(ii) in the case of a judgment by default, 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) (emphasis added). The rule seeks to ensure that
default judgments are not entered without the defendant's knowledge.
Brown v. Great Atlantic & Pacific Tea Co., 460 A.2d 773 (Pa.Super.
¶ 13 A record that reflects a failure to comply with Rule 237.1 is facially
defective and cannot support a default judgment. Fierst v.
Commonwealth Land Title Ins. Co., 535 A.2d 196 (Pa.Super. 1987).
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Furthermore, since the prothonotary lacks authority to enter judgment under
these circumstances, the default judgment would be void ab initio. See
Fountainville Historical Farm Ass'n of Bucks County, Inc., v. Bucks
County, 490 A.2d 845 (Pa.Super. 1985) (prothonotary lacks authority to
enter default judgment where fatal defect appears on face of record).
¶ 14 Having outlined the applicable law, the issue we must resolve is
whether Erie complied with Rule 237.1 when it forwarded the notice of its
intent to praecipe for entry of default judgment to Mr. Alexion, who never
entered his appearance in the matter and was not authorized to practice
law, rather than mail a separate notice to Appellant directly as the rule
provides. After reviewing the applicable authority, we find that Erie's
performance was inadequate.
¶ 15 We observe that the rule explicitly requires that notice be served on
the defendant and the attorney of record. The legislative comment to Rule
237.1 explains the purpose of the dual service requirement as follows:
Rule 237.1(a)(2)(ii) requires the notice of intention to
enter a judgment by default to be mailed or delivered both to
the party against whom judgment is to be entered and, if
represented, to the party's attorney of record. Dual service is
required for two reasons. First, there may be delays in
transmittal of process and pleadings from the client to his
attorney. This often occurs where papers are forwarded by a
party to his insurer through an intermediary, such as an
insurance agency. Often the papers never get to defendant's
attorney until after the time for filing a responsive pleading has
expired. Notice to the party will alert him that there may have
been some failure in transmission and prompt inquiry of his
insurer may correct this.
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Second, even if an appearance has been entered, notice to
the client as well as the attorney may have a salutary effect in
speeding up action by a dilatory attorney.
Explanatory comment to Pa.R.C.P. 237.1, (1994).
¶ 16 In Giallorenzo v. American Druggists' Insurance Co., 447 A.2d
974 (Pa.Super. 1982), we examined a similar issue and found that a letter
requesting a defense attorney to file an answer within ten days or suffer
default judgment did not constitute proper notice under Pa.R.C.P. 237.1, in
part, because it was not mailed to the defendant personally. In resolving
the case, we indicated that notwithstanding its form, the notice was faulty
because it was not mailed to the defendant independently. "[The letter] did
not constitute the notice required under 237.1(a). This would be so on the
basis that the letter was only mailed to the Defendant's attorney and not
also to the Defendant itself, as required by the rule." Id. at 976.
Consequently, we affirmed the trial court's decision to strike the default
judgment against the defendant. The record before us demands a similar
¶ 17 By mailing the ten-day notice of intent to enter a praecipe for default
judgment only to Mr. Alexion, Erie disregarded the letter, spirit, and purpose
of the rule requiring dual service. Consequently, Appellant never was
informed of Erie's intention to enter default judgment and was denied the
opportunity to address the issue with Mr. Alexion, her dilatory attorney. In
light of the express language of the rule, we conclude that Erie's chosen
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method of service failed to comply with the notice requirement contained in
the rule. Furthermore, consistent with Giallorenzo, we find that Erie's non-
compliance constitutes a facial defect that supports striking the default
¶ 18 Next, we must determine whether Appellant's petition had to be filed
within a reasonable period following the entry of the default judgment. Our
determination depends upon whether the facial defect rendered the default
judgment void or voidable. In Williams, we explained that where a
judgment merely is voidable, a petition to strike can be granted only if it is
filed within a reasonable period following the entry of judgment. Williams,
supra at 135. However, timeliness is not a factor where the underlying
judgment is void, and petitions to strike void judgments are granted
regardless of any delay. Id. For the following reasons, we find that the
default judgment against Appellant is void ab initio, and the timeliness of the
petition is irrelevant.
¶ 19 Erie's non-compliance created a facial defect which denied the
prothonotary the authority to enter the judgment. See Fountainville
Historical Farm Ass'n of Bucks County, Inc., supra. Since the
prothonotary was without authority to enter judgment against Appellant, the
judgment is void ab initio. See Jones v. Seymour, 467 A.2d 878, 880
(Pa.Super. 1983) (emphases added), ("unauthorized entry of judgment by
the prothonotary renders the judgment void, and . . . such a judgment
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must be stricken without regard to the passage of time, if its
defectiveness is apparent on the face of the record."). Thus, the
unauthorized default judgment is a nullity. See Mullen v. Slupe, 360 Pa.
485, 490, 62 A.2d 14, 16 (1948) (judgment "entered without authority . . .
is no judgment at all so far as it affects the rights of the defendants.")
(quoting Long v. Lemoyne Borough, 222 Pa. 311, 318 71 A. 211, 212
¶ 20 Based on the foregoing, we hereby reverse the trial court's order
denying Appellant's petition to strike the default judgment.
¶ 21 Order reversed. Judgment stricken. Jurisdiction relinquished.
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