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11/21/97 SALVATORE WILLIAMS v. JOHN WADE AND EDNA

November 21, 1997

SALVATORE WILLIAMS, AN INDIVIDUAL
v.
JOHN WADE AND EDNA WADE, HUSBAND AND WIFE, APPELLANTS



Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil Division, No. GD96-05506. Before FRIEDMAN, J.

Before: Tamilia, J., Popovich, and Hester, JJ. Opinion BY Tamilia, J. Popovich, J., Concurred in the result.

The opinion of the court was delivered by: Tamilia

OPINION BY TAMILIA, J.:

FILED November 21, 1997

This is an appeal from the denial of a petition to strike a judgment in mortgage foreclosure entered pursuant to Rule 237.1 of the Pennsylvania Rules of Civil Procedure due to appellants' default for failure to plead. *fn1

The record reveals notice of intention to enter default judgment was mailed to appellants on May 6, 1996 and the prothonotary entered the judgment on May 16, 1996. Appellees' praecipe for writ of execution was filed in the Court of Common Pleas minutes before appellants filed for Chapter 13 bankruptcy on May 20, 1996. Six months later, Bankruptcy Judge Judith K. Fitzgerald entered an Order granting appellee's motion for relief from stay for the limited purpose of allowing him to defend any action brought by appellants to open or strike the judgment of the Court of Common Pleas and ordering that relief from stay would be granted in full unless appellants filed their petition on or before December 16, 1996. Accordingly, appellants filed a petition to strike on December 5, 1996. The trial court denied the petition, concluding that it was untimely and appellants' bankruptcy proceeding was not an acceptable excuse for the delay. As such, the petition was denied "without reaching the question of whether a judgment taken on May 16 was premature where the notice of intent to do so was mailed out on May 6." (Slip Op., Friedman, J., 5/12/97, p. 3.)

Appellants present two questions on appeal. "1. Is a default judgment void when it was filed prior to the expiration of the notice 10-day period required under Pa.R.Civ.P. 237.1? 2. Under the unique facts of this case, was the Petition to Strike Judgment timely filed?" (Appellant's Brief, p. 3.)

As to the latter issue of delay, the basis upon which the trial court denied the petition to strike, appellants argue their bankruptcy proceeding was the cause of the delay in petitioning the Court of Common Pleas to strike the default judgment. Presumably, this delay was alleged because the trial court inquired of it, mistakenly believing the assertion of an acceptable excuse for a delay in filing a petition to strike was necessary. Alternatively, appellants may have alleged the delay in an attempt to argue the petition was filed within a reasonable time, given the interruption created by the bankruptcy proceeding. Regardless, appellants were not prohibited from petitioning to strike the judgment prior to the commencement of their bankruptcy proceedings or, once bankruptcy was filed, requesting leave in order to promptly petition the common pleas court to strike the default judgment. As such, the trial court's error of law and appellant's argument in this regard are of no moment.

Appellants also argue the default judgment is void because it was taken before the expiration of the tenth day of notice required by Pa.R.C.P. 237.1. Because the judgment is void, they argue, it may be stricken regardless of the passage of time between the entry of the judgment and the filing of the petition to strike, citing Centennial Bank v. Germantown-Stevens Academy, 277 Pa. Super. 134, 419 A.2d 698 (1990).

We find appellants are correct in their assertion that void judgments should be stricken regardless of the passage of time, Helms v. Boyle, 431 Pa. Super. 606, 637 A.2d 630, and, in the instant case, the trial court in fact did consider the timeliness of the petition, "relying primarily" upon DiNardo v. Central Penn Air Services Inc., 358 Pa. Super. 75, 516 A.2d 1187 (1986) (Slip Op. at 2). The trial court's reliance, however, is misplaced because appellant's petition sought to strike the judgment, not open it. DiNardo set forth a three-part test which must be met when considering petitions to open, but did not refer to petitions to strike. This Court explained in U.K. LaSalle, Inc. v. Lawless, 421 Pa. Super. 496, 618 A.2d 447 (1992):

A petition to strike a default judgment and a petition to open a default judgment are two distinct remedies, which are generally not interchangeable. Pennwest Farm Credit, ACA v. Hare, 410 Pa. Super. 422, 430, 600 A.2d 213, 217 (1991). A petition to strike a judgment operates as a demurrer to the record. Id. As such, it is not a matter calling for the exercise of discretion. A petition to strike a judgment may be granted only where a fatal defect in the judgment appears on the face of the record.

Id. at , 618 A.2d at 449.

Furthermore, in addressing the question of the timeliness of the petition, and finding the answer dispositive, without considering appellant's argument that the judgment was void, the trial court erred. The trial court should have first reached a Conclusion as to the nature of the judgment, i.e. whether it was void, voidable or valid, in order to establish whether the timeliness of the petition to strike was a relevant consideration for its ruling. If the judgment was found to be void, as argued by appellant, timeliness would not be a factor and the petition to strike would be granted. Helms, supra. If the judgment was found to be voidable, timeliness would be a factor and the petition would be granted only if it was filed within a reasonable time. *fn2 Finally, if the judgment was found to be valid and fully effective, the petition to strike would be denied and timeliness would not be a factor as a petition to strike a valid judgment will be denied even if filed immediately after the entry of that judgment.

Upon our thorough review of the judgment and the procedure by which it was entered, we conclude that it is a valid and effective judgment. Appellee's praecipe to enter default judgment was filed appropriately on May 16, 1996 and did not cause the judgment to be entered prematurely in violation of Rule 237.1. Subsection (2)(ii) of that rule requires the party seeking to have default judgment entered to include in their praecipe a certification indicating that notice of their intention to file that praecipe was mailed to the defaulting party at least ten days prior to the filing date of their praecipe. As the explanatory comment to Rule 237.1 states that "the ten-day period runs from the date of mailing", the sixth ...


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