City of Philadelphia v. David J. Lane Advertising, Inc.

17.) thеrefore, Claimant, (R.R. 13, 15, at phys- in his change

failed to demonstrate

ical condition. affirm.

Accordingly, we

ORDER NOW, day September, 2nd

AND Compensa- the Workers’ order of (Board), dated Decem- Board Appeal

tion 15, 2010, hereby AFFIRMED.

ber OF PHILADELPHIA

CITY ADVERTISING, LANE INC. J.

DAVID Lane, Officer.

and David J.

Appeal: J. Lane. of David Pennsylvania.

Commonwealth Sept. Briefs

Submitted on 4, 2011.

Decided Oct. addition, on Claimant testified cross-examina- testimony medical ant's does not constitute evidence, hearing during that he did before Adelsheimer testified the June Dr. tion that, strength, and both Dr. not note a loss in "[b]asically,” there has been WCJ Tobin testified that Swartz and Dr. Adelsheimer he change in his condition since tеstified no fairly grip strength remained Claimant’s has petition. of his 1998 reinstatement Claimant’s 1998 consistent since resolution of 135.) (R.R. at 21, 271.) (R.R. petition. reinstatement Kelly Diffily, Philadelphia, ap- Susan pellee. LEADBETTER,

BEFORE: President McGINLEY, Judge, and Judge, and JUBELIRER, Judge, COHN LEAVITT, ‍‌‌​‌‌​‌‌‌​‌​‌‌​‌​​​​‌‌‌‌‌‌​‌​​​‌​‌‌​​​​‌‌‌​‌‌‌​‌‍BROBSON, Judge, and Judge, McCULLOUGH, Judge, and BUTLER, Judge. BY Judge

OPINION BROBSON. (Lane) David J. Lane appeals from the order of the Court of Common Pleas of (common County court), Philadelphia pleas which denied his Petition to Strike Off Judgment. Default For the reasons set below, we pleas reverse the common court. 28, 1999, April

On of Philadel- phia (City) commenced an action Advertising, (Company) David J. Lane Inc. and Lane as an Company officer of the Defendants) (collectively, pursuant Ordinance, Wage and Net Profits Tax Sec- tion 19-1500 of the The Philadelphia Code. City alleged that Defendants withheld wage taxes from the Company’s employees but failed to remit the monies due for 1988 City аlleged and 1989. The that Lane was personally liable for the amounts set forth in the complaint, as trustee ex maleficio. City sought monetary judgment The against each defendant in the amount of $27,919.43, interest, plus penalties, attor- fees, neys’ and costs. court, local

Pursuant rule of the mat- assigned ter was to arbitration based on the amount in controversy. prothono- tary stamped of the common court notice in red ink on the сover sheet of the provided which that the matter assigned had been to arbitration and that the arbitration hearing place D. would take Joseph DiGuglielmo, Philadelphia, for 24, 1999, appellant. on December p.m., 2:30 at 1601 Floor, Street, appear to have been unsuccessful. Philadelphia. 2nd Market their that notwith- In November counsel entered provided stamp also arbitration, petitioned assignment appearance standing COMPLY WITH judgment.2 MUST STILL Lane raised “YOU strike the default BELOW,” meaning (5) the no- support request: THE NOTICE his grounds five on the cover of the com- tice to defend (1) City’s 10-Day Notice was defi- the (R.R.) 9a.) at Record plaint. (Reproduced cient; County Montgomery The Sheriff (2) the multiple the notices affixed to City’s complaint on Defendants served the or col- City’s Complaint, separately 4, file a May 1999. Defendants did not on contradictory and lectively, werе complaint to the with- responsive pleading provide failed to the misleading and (20) days, required by Pa. twenty as No. required by 1026(a). (6) Roughly six No. R.C.P. 1018.1; thereafter, City a notice months the sent (3) City’s underlying claim was the 17, November to each defendant dated laches; by barred 1999, indicating its intention to seek (4) sufficient City’s complaint lacks act judgment if Defendants failed to fault a claim averments to establish (10) Notice). days (10-Day ten within against personally; Lanе (R.R. 27a.) 26a, See Pa. No. at court erred in as- pleas the common 237.1(a)(2).1 Defendants did not file a re- arbitration be- signing the matter to 2, 1999 sponsive pleading. On December panel of arbitrators lacked cause 0ie., weeks before the scheduled arbitra- authority grant the relief that hearing), acting praecipe, tion on the City sought complaint. its pleas the common court entered (R.R. 31a-41a.) pleas The commоn against in the favor and at by default petition by court denied the order dated Defendants. January 2010. The certified docket entries reflect that July City began appealed,3 pleas Lane and the common in or around of its through opinion support efforts writs of attach- court filed an collection against garnishees, ment several banks as order on March 2010.4 237.1(a)(2) Pennsylvania any only 1. Rules assets. We note that counsel filed provides: of Civil Procedure petition only to set aside on behalf of and, similarly, appeal pros of non for failure to is on behalf of Lane No complaint file a failure to only Company. and not the prothonotary plead shall be filed praecipe entry unless the includes a Superior appealed 3. Lane to the Court of certification that a written notice of inten- Pennsylvania, appеal transferred praecipe file the mailed or deliv- tion to disposition. this Court for ered intervening period while 4. In the default, (ii) judgment by in the case of a pending, City again attempted appeal was plead complaint after the failure to to a judgment against to execute on the default days prior and at ten to the date of least garnishees. various financial institutions filing party praecipe however, time, appar- This had some judgment is to be entered whom success, $46,625.45 seizing of Lane’s ent record, party’s attorney and to the if Pennsylvania. funds from Citizens Bank of any. (R.R. 6a-7a.) It is not clear from the record whether the so, or, Company still exists if whether it has order, court pleas raises, its the common found Of the issues that Lane we find that one question particular that there was no that Lane was has merit an appropriate and is basis on whiсh to set properly served with the aside the default this case City’s 10-Day he received the under the above standards. “A record entry that he the notice of of a received that reflects a failure to with Rule The common Pennsylvania [of Rules of Civil City’s 10-Day court concluded that facially Procedure] defective and cannot Notice complied with Rules 2B7.1and 237.5 support a default judgment.” Erie Ins. and, therefore, was not defiсient as Lane Bullard, (Pa.Su 383, v.Co. 839 A.2d 387 claimed. pleas The common court refused per.2003); Credit, see PennWest Farm argument to consider Lane’s that the no- Hare, 422, ACA v. 410 Pa.Super. 600 A.2d him, tices misled and confused as to do so 213, 215-16 (“Generally, if the rec would have required pleas the common affirmatively ord shows a failure to comply court to consider matters not of record. 237.1, with Pa. R.C.P. [No.] the record is specifically The trial court did not address defective and will not entry opinion any in its of the arguments other (footnote omitted)). judgment.” default Lane petition raised his to strike.5 On 237.1(a)(2) Rule requires plaintiff appeal, essentially raises the same provide notice to the defendant of ‍‌‌​‌‌​‌‌‌​‌​‌‌​‌​​​​‌‌‌‌‌‌​‌​​​‌​‌‌​​​​‌‌‌​‌‌‌​‌‍its in issues that petition he raised his tent to seek a default Rule strike.6 requires that the notice “substantial ly” be in the form established the Penn begin analysis by noting We sylvania Supreme Court and set forth in judgmеnts generally are Thus, the rule. if the provided Black, favored. Kennedy See v. 492 Pa. not “substantially” in the form adopted by 397, (1981). 1250, 424 A.2d 1252 Court, the Pennsylvania Supreme then the considering a motion to strike a default complied has not with Rule 237.1 judgment the court is limited to the facts and the judgment cannot stand. judgment record at the time the initiated this action in De entered. Corp. Cleaning Cintas v. Lee’s time, cember 1999. At that Servs., Inc., today, like 549 Pa. 700 A.2d 915 237.5, (1997). in relevant part, required that Importantly, a petition to strike is the 10-Day Notice “be substantially in the not a chance to review the merits of the following form”: allegations Rather, a complaint. a peti tion to strike is aimed at defects that IMPORTANT affect NOTICE the validity judgment of the and that enti ARE YOU IN DEFAULT BECAUSE petitioner, law, tle the as a matter of YOU FAILED HAVE TO ENTER A relief. See First Union Nat'l Bank v. WRITTEN APPEARANCE PERSON- Serv., Inc., Refrigerated Portside ALLY BYOR ATTORNEY AND FILE 1224, 1227(Pa.Super.2003). IN WRITING WITH THE COURT pleas 5. The common court also noted the petition This Court's review of a denial of a petition difference between a to strike a de- to strike a default is limited to petition fault "open" and a whether the common court committed analyzed petition Lane’s an error Corp. of law. Resolution Trust if it appeal, were both. On Lane maintains Assocs., Copley Qu-Wayne 546 Pa. petition that his was one to "strike” the de- (1996). A.2d 269 judgment. Accordingly, fault we will treat it appeal. as such in this use of question, As to the first OR OBJECTIONS DEFENSES YOUR “failed to take action general SET FORTH THE CLAIMS TO consistent you language in this case” YOU ACT UNLESS AGAINST YOU. in Rule 237.5 with the version of the form THE DAYS FROM TEN WITHIN (Old Form a 1994 amendment predating NOTICE, A THIS JUDG- DATE OF Notice). amendment, In the 1994 ENTERED BE MAY MENT 1, 1995, the Su- July effective on became HEAR- A YOU WITHOUT AGAINST general remove this chose to preme Court MAY LOSE YOUR AND YOU ING and to in the Old Form Notice IMPOR- OR OTHER PROPERTY specific language more substitute the TANT RIGHTS. form—“failed to enter a writ- current added). (emphasis No. 237.5 by attorney or appearance personally ten corresponding portion your writing with the court and file provided: to Lane 10-Day Notice objections to the claims set defenses Indeed, NOTICE IMPORTANT appears against you.” the rule explanatory from the comment to the 1994 specific purpose of you because have You are in default specific was to add this more amendment required you in to take action of failed explanаtory the form. The language to (10) ten you act within this case. Unless purpose of the comment notes notice, a days from the date of language is to track the set modification you entered Judgment may be in No. 1018.1 for a notice hearing you may your and lose without a directs plead, language expressly to important rights.... property or other by entering to an the defendant defend added).) (R.R. (emphasis at 26a (either byor attоr- appearance personally writing court in ney) by filing with the identical to the City’s notice is not objections the claims in the defenses or to instructing than Rule 237.5 form. Rather The comment to Rule 237.5 complaint. he to do specifically of what failed in provides: further “Since the notice will notice, as the that led the to issue yet unrepre- sent to an as many cases be City’s notice provides, Rule 237.5 form defendant, notice repеtition sented of the Lane that he was in default only informed defend, helps in modified form to stimu- required action because he “failed to take petitions late action and stem the tide of light in In of this of this case.” [him] open judgments.” Pa. R.C.P. No. inconsistency on the face of apparent 237.5 comment.7 record, as fol- analysis proceed must (a) form, comply lows: did the the revision to the adopting In because, identical, then, it thоugh Pennsylvania Rule 237.5 Supreme required by form “substantially” entering judgment in the that before termined (b) (which matter), not, rule, and, insignificant fatal is no it by the if a notify specif- important must was a defendant defect such that the default (ie., why it was ically what it failed to do be set aside. Laudenberger v. Port Auth. Though accompany- was drafted.” explanatory comments 52, 59, 147, ing procedure Cnty., do not consti- Allegheny the rules of civil 496 Pa. itself, "they part indicate the (1981), tutе of the rule appeal dismissed sub nom. Bu 151 drafting spirit and motivation behind Laudenberger, 456 U.S. 102 S.Ct. cheit v. rule, guidelines serve as (1982). 72 L.Ed.2d 462 understanding purpose which the rule default) “substantially” in the by tracking in followed the form sug- 237.1(c). gested under Pa. No. notice to defend. Rather earlier-issued informing merely than a defendant that he Id. in you

“failed to take action Today, we can Township read case,” specific why a more notice of proposition Chеster for the that in order in the defendant was default that tracks for a Notice with the the earlier notice to defend serves as Old Form notice need defendant, many default, reminder to the cases notify the defendant that it is in notify plaintiff the defendant that the in point, at that unrepresented defen- tends to seek a if action specific pleading obligations. dant’s is not taken within ten days, Steuber, Township Chester v. legal include some indicia of notice to coun (1983), Pa.Cmwlth. 456 A.2d 669 we defendant, represented. sel for the if But particular 10-Day considered whether a amendment, with the 2004 Rule 237.5 now substantially complied Notice with the Old imposes an requirement additional notice notice, challenged Form Notice. plaintiff on a who wishes to obtain a judg letter, ie., ‍‌‌​‌‌​‌‌‌​‌​‌‌​‌​​​​‌‌‌‌‌‌​‌​​​‌​‌‌​​​​‌‌‌​‌‌‌​‌‍provided: the form of ment must default — now specific include May To It Whom Concern: why reasons the defendаnt inis default.8 Please be advised that the Complaint It is this additional notice that is absent in captioned the above matter was served any form from the 10-Day Notice. on the Township component, of Chester on Novem- Without this additional notice required by the Pennsylvania Rules of Civ ber 1980. To date no answer has il years Procedure for over five interposed. been before City the filed its we cannot This will advise that an answer or if consider the notice to “substan be response pleading other is not inter- of tially” required by in the form Rule 237.5. posed days within ten date the of of therefore, City, comply failed to with letter, I will enter a judgment default and, Rule consequently, you. 237.1(a)(2) Pennsylvania of the Rules of Civil Procedure. Chester, Twp. 456 A.2d at 670 n. 3 of We must now determine whether the added). (emphasis Despite the obvious comply 10-Day failure to with the differences between the letter notice and requirement Notice is a fatal defect on the Notice, the Form Old this Court held that record, such that the judgment the “substantially” followed the Old above, must be set aside. As noted “[a] Form: record that reflects a failure to letter township This notified the that it Pennsylvania with Rule 237.1 the [of Rules was in default and that the Steubers facially Procedure] Civil defective and to a intended seek judgment.” cannot a default Erie days within ten if did not hear from Co., Ins. 839 A.2d at 387. the “[S]ince Furthermore, township. the the letter prothonotary authority judg- lacks to enter was directed the legal department. circumstances, ment under these the de- Therefore, we conclude that the letter fault would be void ab initio.” Oddly enough, greater Township provided township 8. the letter notice in notice to the than just regard, required. did In Chester that. the Old Form Notice

680 Co., pros non praecipe, whether In Erie Ins. Supеrior the Court Id. strictly plead, failure to must be the fault for judgment because struck a default required 10-Day No- construed. The required the plaintiff served was defective on attorney by Rule 237.1 in this case represented who tice on the face, “substantially” in was not the investiga- its as it pre-complaint in a the defendant Rather, rule, by Rule 237.5. that the form reasoned tion. The court based on the Old Form reason, of the notice was requires service a Pennsylvania and attorney Supreme which the Court Notice on the defendant very language that record, failing provide amended to include any. By if its notice in this service, City omitted from “disregarded dual Supreme Court letter, of the rule re- spirit, purpose case — reason. See Erie Ins. Id. at 388. specific added for a quiring dual service.” key language Co. Failure to include this Interiors, Inc. v. Browns In Franklin was, therefore, Regardless а fatal defect. Inc., Lane, 323 A.2d Pa.Super. had, the level of actual notice Lane he (1974), observed: Superior Court type and extent of notice did not have the where there entered “[A] re- Pennsylvania Supreme compliance not been strict has obtaining before quired provide is void.” Franklin procedure of civil rules a default Interiors, light of our purely a judg- that default What is before us this case Supreme Court’s view disfavоred, agree question permitted we of law. Were we generally ments are case, allowing equities analy- balance the in this Superior with the Rules Court.9 filing quite sis would different.10 Our focus party judgment by to obtain a be defendant, original City argues portion ally process served on the 9. The that this of Franklin good light Supreme that failure to longer no law in Court reasoned Interiors is Cintas, ruling strictly requiring notice to Supreme in Cintas. In adhere to the rule Court’s process by person judgment the court of service of the Superior the Court struck a default actually complaint that served the was not of the com- because the affidavit of service fatal. plaint required by not Pa. R.C.P. No. 405 was by person actually the who served executed Here, contrast, we are asked to deter- requires. the The Su- the as rule provide the re- mine whether the failure to reversed, holding preme while the Court that quired under ‍‌‌​‌‌​‌‌‌​‌​‌‌​‌​​​​‌‌‌‌‌‌​‌​​​‌​‌‌​​​​‌‌‌​‌‌‌​‌‍Rule notice to defendant of service was deficient in this re- affidavit filing praecipe a default 237.1 before gard, it "contained sufficient information for judgment is a fatal defect. Our conclusion proper, a court to determine that service was provide above that failure to in substance the 405(a) any noncompliance with did required under Rule notice to the defendant Cintas, fatally not render service defective.” 237.1 a fatal defect is not at odds with the is 549 Pa. at 700 A.2d at 918. We do not Supreme decision in Cintas. Court’s Superior read Cintas as an indictment of say not to that the result would Court's observation in Franklin Interiors relat- This is Indeed, equita- necessarily change. there are compliance ed with rules to secure a to strict favoring parties in Supreme mere- ble considerations both The Court standard, appears record a ly applied apply which we in this matter. There on the case, diligence pursu- be lack of due on both sides this that a default should ing defending alleged or this claim for failure stricken where there is a "fatal” defect ago. pay And procedural The rule at issue to taxes due over two decades on the record. original that Lane process while the Court is not convinced in Cintas related to service suit, not, сase, City's proce- completely ignorant of the its specific in this was as judgment, what securing efforts to secure a default or dural rules for judgment, he needed to to avoid a default fault. Because the face of the record allowed do Notice, City’s instead plaintiff actu- use of the Old Form the court to determine that A in a notice deserving not on whether Lane “fatal defect” is one that here is is misleads, rath- or оne that judgment; from the default misinforms fails of relief Here, er, entitled to inform at all. there was no misin- it is on whether was City’s 10-Day instance. formation. The al- judgment in the first the default above, not though it did follow Pa. R.C.P. No. set we con- reasons For the word-for-word, it did serve to warn that the failure to clude default, were in of the Defendants that provision of Rule 237.1 the notice required action or else a judgment was Pennsylvania Rules of Civil Procedure striking the wоuld be entered them within 10 justifies case an order basis, days. clearly a notice which judgment.11 On we re- It was judg- warned Defendants that an adverse the common court. verse if they ment was imminent failed to act. ORDER 10-day no manner or suggested fashion that no action was re- NOW, October, day this 4th AND quired of Defendants. 2011, the order of the Common Court of Philadelphia denying County Pleas Contrary Majority’s approach, Judgment to Strike Off Default Petition have, to, courts must continue look The default REVERSED. implication alleged defect STRICKEN. it opposed determine if is “fatal” as having a de minimis effect. Judge BY DISSENTING OPINION Beckley, Pa.Super. Malizia McGINLEY. (1986), 513 A.2d 417 our Superior notice, City’s 10-day I as dissent. specifically evaluated whether the written, How- “technically” was defective. fact that a Notice had not been ever, it “fatally” was not defective because any “signed” bearing had on the default. not faсilitate Defendants’ default or did There, 10-day sent a any on bearing have whatsoever Defen- attorney’s typewrit- notice. The name was conduct. dants’ “signed” by plaintiffs ten but it argument, This is a subtle I do not but attorneys required by their it should be favor of ignored believe No. 237.5. The trial court found that the finding a defect “fatal” because the signature absence of was a “fatal defect” failed to follow Pa. No. 237.5 on the record Majority summarily wоrd-for-word. The stricken. The Superior be concludes that since the Notice The court Court reversed. concluded that failed to include the added in a signature operate the absence of “did not “fatally per defective” se. in or to raise [the defendants] confuse Majority, specters I courts their interlopers Unlike believe minds in the ” particular look at the proceedings must circumstances and was not а proper basis Malizia, of each case to determine if the defect was judgment. strike the added). before opening “fatal” at 419 (Emphasis issue, complying light ruling with the in Rule 237.5 11. In form on this we need (which not other issues Lane place had been in address the raises in his for over five had, however, appeal. If we we would have years complaint filed its before concluded that either lack merit or are case), inexplicable. grounds proper judg- not to strike a default ment under our standard of review. token, lan missing By the same DAVIDSON, Petitioner Jefferson clearly 10-Day Notice in the

guage confuse Defendants operate did not respond required to they were to whether BOARD spe Defendants were PENNSYLVANIA Complaint.

to the AND they must “enter OF PROBATION that cifically advised PAROLE, attor Respondent. or personally appearance written the court” writing and “file ney” Pennsylvаnia. Commonwealth Court accom objections defenses their Defend, ‍‌‌​‌‌​‌‌‌​‌​‌‌​‌​​​​‌‌‌‌‌‌​‌​​​‌​‌‌​​​​‌‌‌​‌‌‌​‌‍undisput- Notice to panying 12, 2011. Aug. Submitted on Briefs Pa. word-for-word to edly conformed 19, Decided Oct. 10-Day No No. 1018.1. they were in Defendants tice warned they must take action. and that Notice did not restate

The fact that the actions did not mislead

those alternative they were_ re

Defendants to believe response to the to take no action

quired

Notice, which is what occurred.

Moreover, not that his argue Lane does was caused the absence of

inaction know

missing language or that he did not do, justified he was to do noth-

what to so

ing. sum, be I believe each case must circum-

analyzed particular based on its attention to whether special

stances with repercussions and its effect

the defect had inaction which caused the

on a defendants’ if no example,

default. For defaults, and a defendant provided,

there would be a fatal defect because to a defendant’s

lack of notice correlates

inaction.

Here, missing I do believe the lan- respond caused Lane not to

guage Therefore, a “fatal

Complaint. it was not Majority’s promotes position

defect.” The

form over substance. joins LEADBETTER Judge

President

in this dissent.

Case Details

Case Name: City of Philadelphia v. David J. Lane Advertising, Inc.

Court Name: Commonwealth Court of Pennsylvania

Date Published: Oct 4, 2011

Citation: 33 A.3d 674

Docket Number: 1449 C.D. 2010

Court Abbreviation: Pa. Commw. Ct.