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STEPHEN W. MALIZIA AND DESIREE D. MALIZIA v. DANIEL F. BECKLEY AND REBECCA BECKLEY (07/25/86)

filed: July 25, 1986.

STEPHEN W. MALIZIA AND DESIREE D. MALIZIA, HIS WIFE, APPELLANTS,
v.
DANIEL F. BECKLEY AND REBECCA BECKLEY, HIS WIFE, AND PAUL LEVI AND CAROL LEVI, T/D/B/A ACTION REAL ESTATE



Appeal from Order Entered on October 24, 1985, in the Court of Common Pleas of Clinton County, Civil Division, No. 315-85.

COUNSEL

Michael F. Salisbury, Lock Haven, for appellants.

Charles J. Weyandt, State College, for appellees.

Cirillo, President Judge, and Tamilia and Hester, JJ.

Author: Hester

[ 355 Pa. Super. Page 258]

This is an appeal from an order striking a default judgment on the ground that appellants' ten-day notice of default judgment pursuant to Pa.R.C.P. 237.1 was not signed by appellants or their attorney. We reject the rationale that absence of a signature could have led the recipients of the notice to believe it was sent by "an interloper in the proceedings," and thus to doubt its authenticity. We reverse.

Appellants commenced this action by filing a complaint against appellees and others alleging material misrepresentations in the sale of a residence to appellants, seeking damages and rescission of the conveyance. The complaint, together with a notice to defend, was served on all defendants, including appellees. Due to appellees' failure to respond, two months after service of the complaint appellants' counsel sent by certified mail a ten-day notice of default judgment to appellees as required by Pa.R.C.P. 237.1. Appellants subsequently filed a praecipe for default judgment, which was entered, and notice of the judgment was mailed to appellees. Almost a month afterward, appellees filed a petition to open or strike the default judgment, alleging, inter alia, that the notice of default judgment was not signed as required by Pa.R.C.P. 237.1.

The trial court, in a hearing conducted on October 24, 1985, considered only the issue of the signature on the notice of default judgment. The court held that absence of a signature was a fatal defect on the face of the record which required that the judgment be stricken. Its reasoning

[ 355 Pa. Super. Page 259]

    was that "there's no indication that it's authentic or legitimate," and it might have been mailed by "an interloper in the proceedings." N.T., October 24, 1985, at 6, 7.*fn1

The allegedly defective notice of default judgment was identical in all respects to the form of notice set forth in Rule 237.1(c) except for the final portion of the form, as to which the rule specifies:

___

(Signature of Plaintiff or ...


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