Dobbs, D. v. A Impulse Auto ( 2019 )

J-S06017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAISE DOBBS AND ERIC WISHER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A IMPULSEE AUTO, INC., AND YUDIK :
AYSENTSHTEYN, :
: No. 1426 EDA 2018
Appellants :
Appeal from the Order Entered April 5, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 151103182
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED AUGUST 19, 2019
A Impulse Auto, Inc., and its owner and operator, Yudik Aysentshteyn
(collectively “Appellants”), appeal from the Order entered by the Philadelphia
County Court of Common Pleas denying their Petition to Open and/or Strike
Default Judgment. After careful review, we affirm.
On November 20, 2015, Daise Dobbs and Eric Wisher (“Appellees”) filed
a Complaint against Appellants seeking damages resulting from a knee injury
that Ms. Dobbs allegedly suffered after the bench on which she was sitting at
Appellant A Impulse Auto, located at 4700 Torresdale Avenue in Philadelphia,
collapsed. The Complaint identified two addresses for Appellants: 4700
Torresdale and 4608 Torresdale Avenue. The properties, located catty-corner
from one another, are both owned by Appellant Aysentshteyn. The Complaint
J-S06017-19
included a Notice to Defend Within Twenty Days, and was served on Appellants
at 4700 Torresdale Avenue.
Appellants did not file an Answer or otherwise respond.
On January 15, 2016, Appellees’ attorney, Thomas M. Holland, Esq.,
sent a letter to Appellants at both addresses indicating Appellees’ intent to file
a Praecipe for Entry of a Default Judgment (“Praecipe”) within 10 days.
Appellants took no action.
On February 9, 2016, Attorney Holland filed the Praecipe for failure to
file an answer within the required time, attaching an affidavit pursuant to
Pa.R.C.P. 237.1 that stated that he sent a notice of Appellees’ intent to take
a default judgment to Appellants on January 15, 2016. Annexed to the
Praecipe were copies of Attorney Holland’s notice of intent letters sent to
Appellants. See Exh. B, annexed to Notice of Praecipe to Enter Default
Judgment. Attorney Holland sent the Notice of Praecipe itself to Appellant
Aysentshteyn at 4700 Torresdale Avenue and to Appellant A Impulse Auto,
Inc., at 4608 Torresdale Avenue.
On March 3, 2016, the court issued a case management order directing,
inter alia, that discovery be completed by August 1, 2016.1 Appellants failed
to comply with numerous discovery requests; Appellees filed motions to
compel and for sanctions; the court granted the motions, but Appellants did
not comply and did not pay the ordered sanctions.
____________________________________________
1 The docketing of the Praecipe to Enter Default Judgment established only
liability so that further proceedings were required to establish damages.
-2-
J-S06017-19
On November 4, 2016, the court entered an order directing the parties
to appear at an Assessment of Damages Hearing on February 8, 2017.
On February 8, 2017, Appellants did not appear. Appellees testified
regarding the incident and the injuries suffered. After the court reviewed
medical records, it assessed damages totaling $235,0002 and entered
judgment.
Between February 2017 and January 2018, numerous proceedings
occurred in connection with Appellees’ attempts to execute on the judgment,
including the imposition of a sheriff’s levy on eight automobiles parked on
Appellants’ car lot and various assets located at 4608 Torresdale Avenue.
On January 25, 2018, the sheriff posted a Notice of Impending Sale of
the Seized Assets.3 That same day, Appellants’ attorney, Jonathan H.
Stanwood, Esq., filed a Motion to Open and/or Strike the Default Judgment.
Appellees filed a Response in Opposition.
After a hearing on April 4, 2018, the court denied the Motion to Open
and/or Strike the Default Judgment. See Order, entered April 5, 2018.
Appellants timely appealed, and filed a counseled Pa.R.A.P. 1925(b)
Statement. The trial court filed a responsive Pa.R.A.P. 1925(a) Opinion.
Appellants raise the following issues for our review:
____________________________________________
2Damages included $60,000 for a future knee replacement; $150,000 for pain
and suffering, and $25,000 for loss of consortium.
3Despite the levy, Appellants removed the vehicles from the 4700 Torresdale
property. They subsequently received a Stay of the sheriff’s sale.
-3-
J-S06017-19
1. Whether the Court’s April 4, 2018, order was an abuse of
discretion and error of law when it denied Appellants’ Petition to
Open and or Strike when a default judgment entered pursuant to
Pa.R.C.P. Rule 237.1 against A Impulse Auto, Inc., despite service
of the ten day notice of intent to take default judgment as required
by Pa.R.C.P. 237.5 was sent to an address other than the address
where that party was alleged to have been served with original
process?
2. Whether the Court’s April 4, 2018, order was an abuse of
discretion and error of law when it found that the Notice to Defend
and Notice of Intent to Take Default Judgment required by the
rules of procedure were not in compliance with the Rules of
Procedure as to language and font?
Appellants’ Brief at 4 (verbatim).
Standard of Review for Petition to Strike a Default Judgment
“A petition to open a default judgment and a petition to strike a default
judgment seek distinct remedies and are generally not interchangeable.”
Stauffer v. Hevener, 881 A.2d 868, 870 (Pa. Super. 2005). Appellants do
not raise or address in any way the Petition to Open. Rather, they challenge
only the denial of their Petition to Strike for failure to comply with Pa.R.C.P.
237.5.
An appeal regarding a petition to strike a default judgment implicates
the Pennsylvania Rules of Civil Procedure. Oswald v. WB Public Square
Associates, LLC, 80 A.3d 790, 793 (Pa. Super. 2013) (citing Skonieczny v.
Cooper, 37 A.3d 1211, 1213 (Pa. Super. 2012)). Issues regarding the
operation of procedural rules of court present us with questions of law. Id.
Therefore, “our standard of review is de novo and our scope of review is
plenary.” Id.
-4-
J-S06017-19
“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
(Pa. Super. 2013) (citation omitted). “[A] petition to strike is not a chance to
review the merits of the allegations of a complaint. Rather, 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, supra at 794 (citation
omitted). 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 assessing a defendant’s petition to strike to determine whether
there are fatal defects on the face of the record, a trial court may only consider
the evidence in the record at the time the judgment was entered. Cintas
Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 917 (Pa. 1997).
Appellants claim that two fatal defects on the face of the record
precluded entry of the Default Judgment: (1) Appellees mailed the notice of
their intent to take default judgment to 4608 Torresdale Avenue, “an address
that is not used by the A Impulse” and was not the address where the
Complaint was served; and (2) the form of its Notice of Praecipe to Enter
Judgment by Default “does not substantially comply with the form provided in
-5-
J-S06017-19
Pa.R.C.P. 237.5 and is an old form of notice which has long since been
superseded.” Appellants’ Brief at 7.
Issue 1 –Notice of Intent to file Praecipe to Enter Default
Judgment.
Appellants first contend that there is a fatal defect in the record because
Appellees mailed the letter regarding their intent to file a Praecipe for a Default
Judgment to 4608 Torresdale Avenue, “an address that is not used by A
Impulse” and is not the address where the Complaint was served. Appellants’
Brief at 7. This claim is without merit.
Our rules of civil procedure provide that a party seeking a default
judgment must provide a notice of intent to the defaulting party ten days prior
to filing the Praecipe for entry of the judgment. Specifically, Pa.R.C.P. 237.1
states, in relevant part:
(2) No judgment of . . . 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 delivered
***
(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. No. 237.1
The purpose of this rule is to ensure that default judgments are not
entered without a defendant’s prior knowledge, and to provide the defaulting
party with an opportunity to cure the defect prior to the entry of default
judgment. Green Acres Rehabilitation and Nursing Center v. Sullivan,
-6-
J-S06017-19
113 A.3d 1261, 1271-72 (Pa. Super. 2015); Erie Ins. Co. v. Bullard, supra
at 387. A plaintiff is not required to file a copy of ten-day notice of intent to
enter a default judgment prior to filing the Praecipe for entry of the default
judgment; the rule requires only that a plaintiff attach to the Praecipe a
certification stating that he or she complied with ten-day notice requirement.
Keller v. Mey, 67 A.3d 1, 5 (Pa. Super. 2013); Pa.R.C.P. 237.1(a)(2)(ii) and
(3).
Our review of the certified record indicates that the letter from Attorney
Holland providing notice of Appellees’ intent to file a Praecipe for the entry of
a default judgment was sent to Appellant Aysentshteyn at 4700 Torresdale
Avenue, and to A Impulse, Inc., at 4608 Torresdale. Appellant Aysentshteyn
has never disputed he is the owner of A Impulse Auto, Inc. The Complaint
itself lists both addresses. Contrary to Appellants’ summary contention, the
mailing of the Notice of Intent to both addresses is arguably not a defect at
all, let alone a fatal one.
Accordingly, we conclude that the trial court properly determined that
there was no fatal defect or irregularity appearing on the face of the record
that precluded the Prothonotary from entering the default judgment.4
Appellant’s first issue garners no relief.
____________________________________________
4 Further, whether A Impuls Auto, Inc., actually does business at 4608
Torresdale is irrelevant when considering the ultimate issue: whether
Appellants received timely notice of Appellees’ intent to file a Praecipe to enter
the default judgment. Appellants do not contend that they never received
-7-
J-S06017-19
Issue 2 – Form of Notice of Praecipe to Enter Default Judgment
Appellants next contend that “the notice used by Plaintiff departs
significantly from the form required by Rule 237.5 and, in fact, uses an old
form of notice which has long been replaced.” Appellants’ Brief at 11.
Specifically, they assert that because the notice on the form failed to include
a notation that the Bar Association may be able to provide names of agencies
that could provide legal services at a reduced or no fee, there was “a fatal
defect in the record that requires that the default judgment in this matter be
stricken.” Id. at 12. Their argument is specious, at best.
Pa.R.C.P. 237.5 provides that the Notice of Praecipe to Enter Judgment
by Default “shall be substantially in the following form:”
(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.
____________________________________________
notice or that the notice was untimely. Moreover, Appellants provide no
authority to support their bald contention that because original process was
served on Appellants only at 4700 Torresdale that the mailing of the notice of
intent to file a Praecipe to enter default judgment to both 4700 and 4608
Torresdale was improper.
-8-
J-S06017-19
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.
___________________________
(Name of Office)
___________________________
(Address of Office)
___________________________
(Telephone Number)
(Signature of Plaintiff or Attorney)
(Address)
Note: The office shall be that designated by the court under Rule
1018.1(c).
Pa.R.C.P. No. 237.5.
The Notice of Praecipe to Enter Judgment by Default sent to Appellants
in this case provided, in relevant part, the following:
Notice, Rule 237.5
Notice of Praecipe to Enter Judgment by Default
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 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 legal help:
Philadelphia Bar Association
Lawyer Referral and Information Service
1101 Market Street, 11th Floor
-9-
J-S06017-19
Philadelphia, Pennsylvania 19107
(215) 238-6333
This Notice does, in fact, contain the language Appellants now assert
was missing, i.e., it informs them that they can call the local bar association
if they need a lawyer and/or cannot afford to hire one themselves. While the
form received by Appellants provided the Notice in both English and Spanish,
side-by-side on one page in upper and lower case bold letters, rather than
only in English and in all bold, capital letters, these differences do not render
the record defective on its face so as to require the striking of the default
judgment.
Appellants provide no citation to applicable precedential authority in
support of their bald contention that the notice they received presents a fatal
defect in the record.5 Further, Appellants have provided no examples of how
the notice they received did not substantially comply with the form provided
in Rule 237.5 and did not provide the same information required by Rule
237.5. Thus, in addition to the specific factual basis of their claim being
blatantly hollow, their argument is not developed in accordance with our rules
of appellate procedure. See Pa.R.A.P. 2101 (requiring conformance with rules
of appellate procedure); 2111 (pertaining to content of appellate briefs); 2119
____________________________________________
5 Appellants rely on a case issued by the Allegheny County Court of Common
Pleas.
- 10 -
J-S06017-19
(pertaining to presentation and content of argument in appellate briefs).
Appellants’ second issue warrants no relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
- 11 -