Duncan, R. v. Project Home
Duncan, R. v. Project Home No. 3054 EDA 2015
| Pa. Super. Ct. | May 23, 2017Background
- Plaintiffs Robert Duncan and Leah Mann filed a complaint alleging misconduct and wrongful eviction by Project H.O.M.E., 1212 Ludlow LP, and Joan D. McConnon; service shown February 26, 2015.
- Plaintiffs sent a 10-day Notice of Intent to Enter Default Judgment (Pa.R.C.P. 237.1) allegedly on March 30, 2015, and entered default judgment by praecipe on April 10, 2015.
- Defendants’ counsel had entered appearances March 9, 2015, and on April 16, 2015 defendants filed a Petition to Strike the default judgment, alleging the 10-day notice requirement of Rule 237.1 was not satisfied.
- Trial court struck the default judgment on May 13, 2015 (finding a facial defect under Rule 237.1) and defendants then filed preliminary objections; plaintiffs did not respond to those objections.
- On September 15, 2015 the trial court sustained the preliminary objections and dismissed the complaint; Duncan appealed pro se.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court erred in striking default judgment without applying Stabley factors for opening a default judgment | Duncan contends court should have applied the three-prong Stabley test (timeliness, excuse, meritorious defense) and held a hearing before striking | Defendants argue they sought to strike (not open) the judgment because of a facial defect: failure to comply with Rule 237.1 notice/certification requirements | Court: Affirmed striking judgment. Plaintiff confused striking with opening; waiver of any challenge to striking because not argued; striking proper where defect was on face of record. |
| Whether court erred by striking judgment without a Rule to Show Cause hearing (Pa.R.C.P. 206.4) | Duncan asserts a hearing was required to test whether the 10‑day notices had actually been mailed | Defendants: Rule 206.4 allows striking without a rule to show cause where a facial defect exists; no hearing required | Court: No error. Rule 206.4(a)(2) permits striking without a hearing when defect appears on face of record (here Rule 237.1 noncompliance). |
| Whether court erred in sustaining preliminary objections and in not ordering a Pa.R.A.P. 1925(b) statement | Duncan argues trial court should have required a 1925(b) order; failure to do so prejudiced him on appeal | Defendants: trial court may in its discretion order a 1925(b) statement; plaintiffs failed to respond to preliminary objections | Court: No error. Failure to file 1925(b) is only penalized when court orders it; plaintiff’s challenge waived for lack of developed argument. |
Key Cases Cited
- MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d 980 (Pa. Super. 2007) (appellants must develop claims on appeal or face waiver)
- Keller v. Mey, 67 A.3d 1 (Pa. Super. 2013) (petition to strike where facial defect in record requires striking default judgment)
- Oswald v. WB Public Square Assoc., LLC, 80 A.3d 790 (Pa. Super. 2013) (standards distinguishing petitions to strike and to open; scope of review)
- Cargitlada v. Binks Mfg. Co., 837 A.2d 547 (Pa. Super. 2003) (petition to open is equitable, discretionary relief and may consider matters outside the record)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (appellate issues preserved only when party complies with court’s order to file a Rule 1925(b) statement)