Penn National a/s/o Shenberger, D. v. Phillips, B.
276 A.3d 268
Pa. Super. Ct.2022Background
- Penn National (subrogee of Dennis Shenberger) sued Bailey Phillips for a September 22, 2020 auto collision, seeking $26,804.59; complaint filed July 19, 2021.
- Plaintiff mailed the complaint by certified mail to 1308 Summer Lake Drive, Concord, NC; USPS forms show delivery July 28, 2021 and a signature marked "agent" with "Covid-19" noted.
- Plaintiff's affidavit of service mistakenly abbreviated the state as "NH" (New Hampshire), creating a discrepancy with the USPS forms that show "NC."
- On September 7, 2021 Plaintiff filed a praecipe for default judgment but did not attach the mandatory ten‑day notice or a certification of mailing to the praecipe as required by Pa.R.C.P. 237.1; the prothonotary entered default judgment that day.
- Phillips’ counsel entered an appearance and filed a petition to strike/open on September 17, 2021, arguing defective service and a defective/omitted ten‑day notice; trial court denied relief.
- Superior Court held service by certified mail was shown by the USPS forms (so no jurisdictional defect), but the ten‑day notice failed to substantially comply with Pa.R.C.P. 237.5 and was not attached to the praecipe as required by Rule 237.1, rendering the default judgment void; court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of service/affidavit of service | Affidavit shows service (but contains a state abbreviation error); plaintiff argues mailing to Phillips’ NC residence was completed | Phillips argues discrepancy ("NH" v. "NC") and illegible signature ("agent"/"Covid‑19") show defective service and lack of personal jurisdiction | Service was adequate on the face of the record: USPS certified mail forms show delivery to the NC address and signature by an agent, so no fatal defect in service |
| Compliance with Rule 237 (ten‑day notice / praecipe) | Plaintiff contends the ten‑day notice was provided and any omission attaching it to the praecipe was clerical; later filed the notice with response | Phillips contends praecipe lacked required certification and the ten‑day notice did not substantially follow Rule 237.5’s required language (too general), so praecipe was defective | Praecipe violated Rule 237.1 because it did not include the certification or attach the ten‑day notice; the ten‑day notice itself failed to substantially comply with Rule 237.5. Default judgment void ab initio; petition to strike should have been granted |
Key Cases Cited
- Cintas Corp. v. Lee’s Cleaning Servs., Inc., 700 A.2d 915 (Pa. 1997) (fact of service controls jurisdiction even if return is defective)
- Sawyers v. Davis, 222 A.3d 1 (Pa. Super. 2019) (explaining service by mail rules for out‑of‑state defendants under Pa.R.C.P. 403–405)
- Oswald v. WB Public Square Assocs., LLC, 80 A.3d 790 (Pa. Super. 2013) (ten‑day notice must state specific reasons for default; failure makes notice defective)
- Keller v. Mey, 67 A.3d 1 (Pa. Super. 2013) (Rule 237.1 requires the praecipe to include certification and a copy of the ten‑day notice when filed)
- Bank of New York Mellon v. Johnson, 121 A.3d 1056 (Pa. Super. 2015) (petition to strike tests for fatal defects on the face of the record)
- Erie Ins. Co. v. Bullard, 839 A.2d 383 (Pa. Super. 2003) (record showing failure to comply with Rule 237.1 is facially defective and cannot support default judgment)
- Pincus v. Mutual Assurance Co., 321 A.2d 906 (Pa. 1974) (return of service need not identify person by name to be valid)