This is an appeal by Commonwealth Land Title Insurance Company (Land Title) from an order refusing to strike a default judgment entered against it by Lawrence J. Fierst and Betty J. Fierst. The determinative issue can be understoоd only after a review of the history of this protracted litigation.
On December 10, 1981, the Fiersts filed a complaint against Land Title which sounded in assumpsit and tort.
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The complaint was served on Land Title on Decеmber 15, 1981. Thereafter, an extension of thirty days within which to file a responsive pleading was granted orally by plaintiffs’ counsel to counsel for the defendant. Despite several conversations between counsel for the parties after this extension had expired, a responsive pleading was not forthcoming. Therefore, on April 1, 1982, plaintiffs’ counsel gave written notice of intent to enter a defаult judgment under Pa.R.C.P. 237.1. When there still was no responsive pleading, the Fiersts, on April 13, 1982, caused a default judgment to be entered. The praecipe for judgment recited that “[njotice of intent to enter default judgmеnt [had been]
A petition to open the defаult judgment was filed on June 25, 1982. In order to assist the court in deciding the same, the parties filed a stipulation of facts. Included were the following agreed facts:
9. On April 1, 1982, Plaintiffs’ counsel in compliance with the Pennsylvаnia Rules of Civil Procedure sent out the appropriate notices of intent to take default judgment.
12. On April 13, 1982 at 10:42 a.m., Plaintiffs’ counsel filed a Praecipe for Default Judgment along with proper certifiсation in compliance with the Pennsylvania Rules of Civil Procedure and judgment was entered accordingly.
Land Title’s petition to open the default judgment was denied on December 28, 1982 because, the triаl court held, Land Title had not moved promptly to open the judgment. No immediate appeal was filed. Instead, Land Title petitioned the trial court to reconsider its order, alleging for the first time that thе Fiersts had failed to comply with the notice requirements of Pa.R.C.P. 237.1. The petition for reconsideration was denied on August 28, 1984; and on September 25, 1984, Land Title appealed to the Superior Court. It argued, intеr alia, that the default judgment was improper and should have been opened because the Fiersts had failed to comply with Rule 237.1.
The Superior Court, in an unpublished memorandum, affirmed the order of the trial court and responded to Land Title’s argument 2 as follows:
Commonwealth Land Title complains that the Fiersts failed to comply with the notice provisions of Pa.R.C.P. 237.1 in that while notice was served upon AttorneyHerrington, аnd the Praecipe so stated, the Praecipe did not state that the notice of intention to enter default judgment was served upon Commonwealth Land Title. Furthermore, Appellant complains, the notice of intent to take default judgment was never served on or received by Commonwealth Land Title prior to the entry of default judgment by the Fiersts. Commonwealth Land Title has appended, to its brief, an affidavit to this effect.
Appellant’s petition to open the default judgment contains no allegation that notice was never received by them and, based upon stipulation to which attorneys for bоth the Fiersts and Appellant agreed, the trial court found as a fact that, in compliance with the Pennsylvania Rules of Civil Procedure, appropriate notices of intent to take default judgment had been sent. Thus, we find that Appellant has waived this argument by failure to first raise it in the court below. See: Ackerman v. Port Authority of Allegheny County,323 Pa.Super. 375 ,470 A.2d 640 (1984).
Regarding Commonwealth Land Title’s attempt to raise this issue in its petition to the trial court for reconsideration, a petition for reconsideration of an order asks the court to reconsider its order in light of the record it previously considered. Conaway v. 20th Century Corporation,491 Pa. 189 ,420 A.2d 405 (1980). We perceive no manifest abuse of discretion or error of law on the part of the trial court for having failed to consider the enhanced record presented to it.
A subsequent application to the Superior Court for reargument was denied.
Thereafter, Land Title filed, on October 23, 1986, a petition to strike the judgment on grounds that the record was defective because it failed to disclose that the Fiersts had complied with Pa.R.C.P. 237.1. The trial court dеnied the petition summarily; and Land Title filed the appeal which is presently before this Court.
The Fiersts filed a motion to quash Land Title’s appeal on grounds that the issue had been decided by this
A petition to strike a judgment will be granted only for defects appearing on the facе of the record.
Franklin Interiors v. Wall of Fame Management Co., Inc.,
In the instant case, however, the record is not defective. Attached to the praecipe for the entry of judgment was a copy of a notice of intent to enter a default judgment, which had been addressed to Land Title. Although the language of the praecipe for judgment was that the notice of intent had been served upon counsel, the parties subsequently stipulated that notice of intent to enter a default judgment had been sent in compliance with the Pennsylvania Rules of Civil Procedure. This record is sufficient to support a valid judgment.
Moreover, appellant was estopped to assert any irregularity in the proceedings leading up to the entry of a default judgment. After the default judgment had been entered, appellant did not challengе the validity of the judgment but acknowledged its validity and moved to open it. Its petition to open the judgment did not allege that the
Parties are bound by their stipulations made in judicial proсeedings. “[Concessions made in stipulations are judicial admissions, and accordingly may not later in the proceedings be contradicted by the party who made them.”
Tyler v. King,
The judgment entered against Land Title was not what is sometimes referred to as a “snap judgment.” The judgment was entered almost four months after the complaint had been served. In the interim, according to the record in the proceedings to open the judgment, plaintiffs’ counsel had orally granted an extension of thirty days for the filing of a responsive pleading by the defendant and, upon the expiration of the extended period, had made several requests upon defense counsel to file the same. Finally, plaintiffs’ сounsel sent notice that plaintiffs intended to enter judgment if the default were not corrected within ten days. When the default remained uncorrected after the expiration of that ten day period, thе default judgment was
Finally, appellant argues that the trial court erred because it denied the motion to strike the judgment without taking testimony pursuant to Pa.R.C.P. 209. This argument misperceives the nature of a motion to strike the judgment. “An application to strike off a judgment is an attack upon the judgment’s validity.” 12 Std.Pa.Prac., Relief from Judgments § 71:165. It is in the nature of a demurrer to the record.
Bethlehem Steel Corp. v. Tri State Industries, Inc.,
Appellant’s petition to strike the default judgment entered against it was a demurrer to the record; it asked the court to review the record and determine whether it was sufficient to support a valid judgment. This petition did not require the court to take testimony in order to dеtermine whether the application of equitable principles required that the judgment should be opened to allow a defense. Because appellant’s request was limited to a review of the record to determine the validity of the judgment, there was no need to receive testimony by depositions or otherwise. To consider facts not already a part of the record would have been improper.
The order of the trial court is affirmed.
Notes
. A prior action in equity between the same parties had terminated in favor of Land Title.
. The panel of the Superior Court could have affirmed the trial court’s refusal to reconsider for the same reasons which led to the decision in
Simpson
v.
Allstate Insurance Co.,