Opinion
889 EDA 2023 J-A24031-23
11-05-2024
MARIA ESTHER ARREGUIN AND P.A.B., A MINOR BY PARENTS AND NATURAL GUARDIANS MARIA ESTHER ARREGUIN AND GAMALIEL ARREGUIN RUIZ AND J.A.B., MINOR BY PARENTS AND NATURAL GUARDIANS MARIA ESTHER ARREGUIN AND GAMALIEL ARREGUIN RUIZ AND MARIA ESTHER ARREGUIN AND GAMALIEL ARREGUIN RUIZ (H/W) AND GAMALIEL ARREGUIN RUIZ v. CHARLES KINSING APPEAL OF: P.A.B., A MINOR, BY MARIA ESTHER ARREGUIN, PARENT AND NATURAL GUARDIAN
Benjamin D. Kohler, Esq.
Appeal from the Judgment Entered May 18, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 160701153.
Benjamin D. Kohler, Esq.
BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.
OPINION
SULLIVAN, J.
In this matter of first impression, Maria Esther Arreguin ("Arreguin"), on behalf of her minor child, P.A.B. ("Son"), appeals from the entry of judgment after a non-jury trial in her successful personal injury action against Charles Kinsing ("Appellee"). Specifically, Arreguin challenges the trial court's denial of her motion for delay damages. Upon careful consideration, we affirm.
Because of the nature of the instant appeal, a detailed recitation of the underlying facts and procedural history is unnecessary. However, we briefly note, in July 2015, Arreguin was driving a car which Appellee, who was severely intoxicated, rear-ended. The police arrested Appellee for driving under the influence four times within a six-week period; this collision caused the third arrest. Appellee's rear-ending of Arreguin's car caused a chain-reaction collision in which six people sustained injuries. Son, who was then ten years old, endured severe facial injuries necessitating multiple surgeries and causing permanent scarring.
The Commonwealth charged Appellee with driving under the influence and related offenses, and Appellee spent several years in state prison during the pendency of the instant proceedings.
Arreguin filed the instant personal injury action. Following a January 2023, non-jury trial, the trial court found in favor of Arreguin and awarded $4,111,746.38 in damages. Arreguin filed a timely motion for delay damages, which the trial court denied. The instant, timely appeal followed.
Arreguin and the trial court complied with Pa.R.A.P. 1925.
On appeal, Arreguin raises the following questions for our review:
1. Whether the [trial] court committed a reversible error and abused its discretion in denying [Arreguin's Pennsylvania Rule of Civil Procedure] Rule 238 motion for delay damages . . . through its misinterpretation of [Pa.R.Civ.P.] 238(c)?
2. Whether the [trial] court committed a reversible error and abused its discretion in relying upon Dietz v. AVCO Corp., 279 A.3d 1288 (Pa. Super. 2022) (unpublished memorandum), [to] support its decision?
3. Whether the [trial] court erred in dismissing [Arreguin's] claim for delay damages where the [trial court and appellate courts] have refused similar penalties?Arreguin's Brief at 4 (capitalization, punctuation, and citation formats standardized).
Although Arreguin purports to raise three issues for our review, her argument is divided into five subsections. We remind Arreguin "[t]he argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part-distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a).
Although Arreguin purports to raise three issues on appeal, her issues are more properly analyzed as alternative phrasings of a single issue, whether the trial court erred in denying her motion for delay damages.
Our standard of review concerning a motion for delay damages under Rule 238 is whether the court committed an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.Spencer v. Johnson, 249 A.3d 529, 561 (Pa. Super. 2021) (citations and quotation marks omitted).
Resolution of the issues raised herein requires us to interpret the Pennsylvania Rules of Civil Procedure. The interpretation of our procedural rules presents a pure question of law for which our standard of review is de novo and our scope of review is plenary. See Getting v. Mark Sales & Leasing, Inc., 274 A.3d 1251, 1261 (Pa. Super. 2022). "The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court." Pa.R.J.A. 108(a). In so doing, "[t]he rules shall be liberally applied to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties." Pa.R.Civ.P. 126.
Pennsylvania Rule of Judicial Administration 108, effective January 1, 2024, replaced Pa.R.Civ.P. 127. It is settled law that changes in law are applied retroactively to cases pending on appeal. See Christy v. Cranberry Volunteer Ambulance Corps, Inc., 856 A.2d 43, 51 (Pa. 2004).
The language of Pennsylvania Rule of Civil Procedure 126 was amended effective January 1, 2024. Again, we apply the current version of the Rule. See id.
Statutory construction is not required for unambiguous language, only where ambiguity exists. Thus,
we construe every rule, if possible, to give effect to all of its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. It is only when the words of a rule are not explicit that we may ascertain the intent by reference to other matters . . . . As we have explained in the context of statutory construction, ambiguity occurs when there are at least two reasonable interpretations of the text. When we are construing and giving effect to the text, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.HTR Restaurants, Inc. v. Erie Ins. Exchange, 307 A.3d 49, 58 (Pa. 2023) (internal quotation marks and footnotes omitted).
Pa.R.Civ.P. 238 provides:
(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury . . . damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury . . ..
(2) Damages for delay shall be awarded for the period of time from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.
* * * * *
(c) Not later than ten days after the verdict or notice of the decision, the plaintiff may file a written motion requesting damages for delay and setting forth the computation. The motion shall begin with the following notice:
NOTICE
You are hereby notified to file a written answer to the attached motion for delay damages within twenty days from the filing of the motion or the delay damages sought in the motion may be added to the verdict or decision against you.Pa.R.Civ.P. 238(a)(1)-(2) and (c) (emphasis added).
Arreguin first contends in the denying of her motion, the trial court "ignored the true purpose" of Rule 238, i.e., to improve the flow of cases in the trial courts and encourage defendants to settle meritorious cases. See Arreguin's Brief at 11-13. She opines the legislature "never intended Rule 238(c) to act as a preclusion to [p]laintiffs who fail to attach the notice. The [r]ule was written to protect [d]efendants from [p]laintiffs who take action and have not given notice." See id. at 14.
The trial court disagreed, explaining it:
properly interpreted Pa.R.Civ.P. 238(c) and denied [Arreguin's] motion for delay damages because it did not comply with the strict, unambiguous language of [the rule], due to the required notice not appearing in the beginning of the motion. The language of Pa.R.Civ.P. 238(c) is clear and free from ambiguity when it reads, "The motion shall begin with the following notice . . .." Pursuant to Pa.R.Civ.P. 127(b), the letter of Pa.R.Civ.P. 238(c) is not to be disregarded in the presence of such unambiguous language . . .Trial Court Opinion, 6/15/23, at 4 (emphasis added, record citation omitted, capitalization and citation formats standardized).
Having thoroughly reviewed the law and the record, we find no error in the trial court's ruling. As cited above, Rule 238(c) unambiguously states to obtain delay damages a prevailing plaintiff must file a motion and "[t]he motion shall begin with the following notice." Pa.R.Civ.P. 238(c) (emphasis added). The rule then includes the exact language and form of the notice. See id.
Our Supreme Court has stated, "By definition, 'shall' is mandatory." Oberneder v. Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997). See also Coretsky v. Bd. of Com'rs of Butler Tp., 555 A.2d 72, 74 (Pa. 1982) (holding the use of the word "shall" in a statute is mandatory, clear, and unambiguous).
Arreguin does not dispute she failed to attach the rule-mandated notice and does not argue the word "shall" is ambiguous. See Arreguin's Brief at 11-16. Rather, she contends we should disregard the plain language of the Rule and look to the Supreme Court's intent in enacting it. See id. She maintains the purpose of the Rule is to protect defendants from plaintiffs who seek delay damages without giving notice but simultaneously assigns error to the denial of a motion that fails to include the required notice. See id. at 14.
It is long settled the "touchstone" of statutory, or in this case rule, interpretation is "where a [rule] is unambiguous, the judiciary may not ignore the plain language under the pretext of pursuing its spirit[.]" Grossi v. Travelers Personal Ins. Co., 79 A.3d 1141, 1161 (Pa. Super. 2013) (citations and internal quotation marks omitted). Here, for us to reach the issue of the Supreme Court's intent in promulgating Rule 238(c), we would have to first conclude the rule bears two reasonable interpretations. It does not. The only reasonable construction of "shall" in Rule 238(c) is that to seek delay damages, a litigant must file a motion which begins with the required notice.
Moreover, while our Courts have not addressed whether the inclusion of the notice to defend is mandatory in the context of Pa.R.Civ.P. 238(c), we have addressed the issue in the context of analogous rules. In a recent decision, Gould v. Wagner, 316 A.3d 634 (Pa. Super. 2024), this Court construed whether a generic notice to plead could act as a substitute for the very specific notice to defend required by Pa.R.Civ.P. 3279(a) and 3282(b), which concern the commencement of proceedings under the Deficiency Judgment Act ("DJA"). See Gould, 316 A.2d at 638. Rule 3279(a) provides proceedings under the DJA are commenced by "filing a petition which shall begin with the notice to defend and set forth the averments required by Rule 3282 or Rule 3288." Pa.R.Civ.P. 3279(a) (emphasis added). Rule 3282(b) provides in pertinent part, "The petition shall begin with a notice to defend substantially in the following form[.]" Pa.R.Civ.P. 3282(b). We concluded the use of "shall" in the rules was mandatory and unambiguous. See Gould, 316 A.3d at 641. Thus, we held the failure to attach a notice to defend that did not substantially comply with Pa.R.Civ.P. 3279(a) and 3282(b) constituted a facial and fatal defect in the pleading. See id. at 644-45.
Similarly, this Court has held that failure to comply with Pa.R.Civ.P. 1018.1, which provides "[e]very complaint filed by a plaintiff and every complaint filed by a defendant against an additional defendant shall begin with a notice to defend in substantially the form set forth in subdivision (b)" (emphasis added), constitutes a facial defect in the pleadings to which the defendant is not required to respond. See Mother's Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 337-38 (Pa. Super. 2004); Lewandowski v. Crawford, 222 A.2d 601, 601 (Pa. Super. 1966) ("[f]ailure to endorse a pleading with notice to answer relieves the opposite party of the obligation to file a responsive pleading, and in consequence, no default judgment can be entered against him").
The dissent takes issue with this interpretation, arguing it disregards the mandatory nature of delay damages. See Dissent at 2-5. However, the dissent fails to read the statute as a whole; instead, it focuses solely on Section 238(a) and its mandatory language, and the dissent's narrow reading renders Section 238(c) superfluous. See id.
The principles of statutory construction require us to construe every statute "if possible, to give effect to all of its provisions." 1 Pa.C.S.A. § 1921(a) (emphasis added). Thus, we may not "ignore the language of a statute, nor may we deem any language to be superfluous." Bd. of Revision of Taxes, City of Philadelphia v. City of Philadelphia, 4 A.3d 610, 622 (Pa. 2010); see also 1 Pa.C.S. § 1922(2). As this Court has stated:
[o]ur rules of statutory construction, however, do not permit us to invalidate a clearly expressed requirement in this manner, [we cannot] disregard [one section on a rule's] directive [when it] may be read in harmony with [another section's directive]. See, e.g., Commonwealth v. Office of Open Records, 103 A.3d 1276, 1287-88 (Pa. 2014) (declining to construe one provision to nullify immediately preceding provision when rules of statutory construction require reading provisions in harmony where both can be made to stand together).Miller v. St. Luke's University Health Network, 142 A.3d 884, 893-94 (Pa. Super. 2016) (citation format regularized).
We read the statute harmoniously, thus the filing of a proper motion for delay damages includes the mandatory notice required by Pa.R.Civ.P. 238(c), it is only at that point that Pa.R.Civ.P. 238(a)(1) is triggered. This reading is in accordance with proper principles of statutory construction and gives effect to all provisions of the rule. See 1 Pa.C.S.A. § 1921(a); Bd. of Revision of Taxes, 4 A.3d at 622; Miller, 142 A.3d 893-94.
We do not disagree that the result in this case is a harsh one. However, the inclusion of a notice to defend is required under the rule and not an onerous requirement. The language of the rule is clear and mandatory, the principles of statutory construction require us to "give effect to all of its provisions". Thus, under the law Pa.R.Civ.P. 238(c) cannot be rendered superfluous. It is not this Court's role to disregard the plain meaning of the rule under the guise of pursuing its spirit. See City of Johnstown v. Worker's Compensation Appeals Board, 255 A.3d 214, 220 (Pa. 2021) (addressing statutory interpretation). The remedy for any perceived harshness does not lie with this Court, which as an intermediate appellate court, does not have the prerogative to "enunciate new precepts of law or expand existing legal doctrines." N.W.M. and E.M. v. Langenbach, 216 A.3d 7, 21-22 (Pa. 2024) (citations omitted); Commonwealth v. Fuentes, 272 A.3d 511, 521 (Pa. Super. 2022) (same).
Thus, we conclude Arreguin's failure to include the required notice with her motion for delay damages constituted a facial defect in the pleadings and the trial court did not err in denying the motion. See Gould, supra; Mother's Rest., supra. Arreguin's first issue does not merit relief.
Arreguin next maintains the trial court improperly relied on Dietz, 279 A.3d 1288. See Arreguin's Brief at 17-19. Arreguin argues that because Dietz was non-precedential, it cannot be cited as persuasive authority. See id. The trial court did not err in considering Dietz. See Pa.R.A.P. 126(b) (permitting consideration of non-published cases decided after May 1, 2019, for their persuasive value). Moreover, the trial court explained it found Dietz instructive but distinguishable because the trial court there lost jurisdiction to find the absence of the notice dispositive and the plaintiff thereafter filed the mandatory notice Arreguin never filed. See Trial Court Opinion, 6/15/23, at 4-5. Arreguin's second issue did not merit relief.
Dietz filed a motion for delay damages that did not include the required notice to defend. See Dietz, 279 A.3d 1288 at *13. However, during the pendency of the motion, one of the defendants filed a premature appeal, thus depriving the trial court of jurisdiction over the motion for delay damages. See id. The trial court dismissed the motion for delay damages without prejudice. See id. Following the dismissal of the premature appeal, Dietz refiled the motion and included the required notice. See id. The trial court granted the motion. See id. On appeal, while specifically noting the original motion did not comply with Pa.R.Civ.P. 238, the Court held because it had been dismissed without prejudice, nothing prevented Dietz from refiling a corrected notice. See id. Deitz accordingly holds nothing more than where a plaintiff filed a correct notice, delay damages were not precluded.
In her final issue, Arreguin maintains the "penalty of dismissal" was overly harsh, and courts have refused to sanction parties so harshly in "similar situations." Arreguin's Brief at 19. In essence, Arreguin's argument is that we should excuse her noncompliance with Pa.R.Civ.P. 238(c). See id.
We disagree with Arreguin's characterization of the trial court's actions. The trial court did not void the judgment or overturn the favorable verdict in this action, it simply denied a motion which contained a facial defect.
We must first examine whether Arreguin preserved this issue. See, e.g., Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (explaining "[t]he fact [a]ppellants filed a timely [court-ordered] Pa.R.A.P. 1925(b) statement does not automatically equate with issue preservation."). As this Court has held, "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa.R.A.P. 1925(b)(4)(vii). [Commonwealth v.] Lord[, 719 A.2d 306 (Pa. 1998)] operates as a bright-line rule, such that 'failure to comply with the minimal requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.'" U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some citations omitted, emphasis added); see also Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc) ("it is no longer within this Court's discretion to ignore the internal deficiencies of Rule 1925(b) statements.").
In addition,
Rule 1925 is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the parties plan to raise on appeal. This Court has further explained that a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no concise statement at all.Tucker, 939 A.2d at 346 (capitalization standardized, quotation marks and citations omitted).
Although Arreguin filed a Rule 1925(b) statement, she never claimed the trial court imposed a disproportionate penalty by denying delay damages because Arreguin failed to provide the mandated notice. See Arreguin's Brief, at 19-23; Statement of Matters Complained of on Appeal, 4/27/23, at 1-2. The trial court did not address this issue in its opinion. See generally, Trial Court Opinion, 6/15/23, at 5-6. Accordingly, Arreguin waived her final issue.
Instead Arreguin raised an entirely different issue, not raised in her brief on appeal, claiming the trial court erred in denying her motion for delay damages because Appellee never made any pre-trial settlement offers and was not prejudiced by the failure to include the required notice. See Statement of Matters Complained of on Appeal, 4/27/23, at 2.
The purpose of a Rule 1925(b) statement is to afford the trial court the opportunity to explain its ruling and correct any error. See Tucker, 939 A.2d at 346.
In any event, the claim would not merit relief. We are not persuaded the instances Arreguin cites in which a defect is excused are similar circumstances. Those cases involve: (1) discovery disputes; (2) defects in a divorce complaint; and a (3) 1977 Court of Common Pleas decision regarding a deficient motion to strike. Moreover, as we discussed in Gould, there is a difference between a minor procedural misstep and a party's failure to substantially comply with the Rules of Civil Procedure. See Gould, 2024 WL 2143776, at *7. Here Arreguin did not include any notice. Appellee clearly pointed out this deficiency in its response, filed less than twenty days after Arreguin filed her motion for delay damages. See Appellee's Response in Opposition, 2/18/23, at 1-2. Despite being put on notice of the deficiency, Arreguin does not point to, and we have been unable to locate, any place in the record, wherein Arreguin sought to amend or refile the motion to correct the deficiency. Thus, we cannot agree with Arreguin that this was a minor mistake, or that the trial court erred in denying her motion. See Gould, supra at *7; see also Home Sav. and Loan Co. of Youngstown, Ohio v. Irongate Ventures, 19 A.3d 1074, 1080 (Pa. Super. 2011) (holding the trial court did not err in declining to transfer a timely, but incorrectly filed, petition where the petition ignored mandatory, statutory language regarding the filing of the petition, which resulted in the termination of the action).
Because we agree with the trial court that Arreguin filed a fatally deficient motion for delay damages, we affirm. Order affirmed.
Judge Dubow joins this opinion. Judge Stabile files a dissenting opinion.
Judgment Entered.
DISSENTING OPINION
STABILE, J.:
The trial court denied delay damages based solely on the absence of the prescribed Pa.R.Civ.P. 238(c) notice in Appellant's motion. The Majority affirms, concluding that this procedural defect was fatal. For the following reasons, I respectfully dissent.
The Majority's result turns on the use of the word "shall" in Rule 238(c). The Majority is correct that the word "shall" denotes a mandatory action. For this reason, we cannot disregard that the word "shall" appears in other places in Rule 238. Most importantly, 238(a)(1) begins by mandating that the trial court award delay damages in response to the request of a plaintiff in a civil action:
At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and shall become part of the verdict, decision or award.Pa.R.Civ.P. 238(a)(1)(emphasis added). Likewise, subsection 238(a)(2) provides that delay damages "shall" be calculated for a given period of time, and subsection 238(a)(3) provides that delay damages "shall" be calculated at the prime rate plus one percent. Pa.R.Civ.P. 238(a)(2), (3). Here, Appellant has made the request under Rule 238(a)(1), thus triggering the mandate for an award of delay damages as computed under subsections (a)(2) and (a)(3). The Majority effectively concludes, however, that the Appellant's request was a nullity because it did not include the notice required under of Rule 238(c). I find the Majority's conclusion problematic because the Majority never explains why all of the other mandates of Rule 238 can be disregarded if the plaintiff fails to provide notice under Rule 238(c).
In my view, the starting point for an analysis of Rule 238(c) is to recognize that it is silent on the penalty for noncompliance with the notice mandate. The Majority fails to do so. For this reason, the Majority's insistence on strict adherence to the clear language of the entirety of Rule 238 misses the point. The rule contains no language governing the question before us. And contrary to the Majority's opinion, my reading of the statute does not render Rule 238(c) superfluous. Rule 238(c) serves to ensure that the parties have a full and fair opportunity to litigate delay damages prior to entry of judgment. Nothing in my analysis would change that. On the other hand, as I have already mentioned, the Majority's result vitiates a clear mandate: "damages for delay shall be added to the amount of compensatory damages." Pa.R.Civ.P. 238(a)(1). Thus, I believe the analysis I offer here gives proper effect to the entirety of Rule 238.
Because of the Rule's silence on the issue before us, I believe any statutory construction analysis is incomplete without reference to certain other rules, beginning with Rule 126:
The rules shall be liberally applied to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties.Pa.R.Civ.P. 126(a) (emphasis added). As I explain more fully below, I believe Rule 126(a) describes precisely what happened in this case: Appellant committed a procedural error that did not affect the substantive rights of Appellee. Further, Rule 126(b) directs us to apply Rules 104 to 115 of the Pennsylvania Rules of Judicial Administration. Pa.R.Civ.P. 126(b). Of particular importance here, given Rule 238(c)'s silence on the remedy for noncompliance, is Rule of Judicial Administration 108(c):
(c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters:
(1) precedent of the Supreme Court interpreting the current rule; (2) the commentary accompanying the rule; (3) the rulemaking history; (4) other procedures governing the same or similar subjects; (5) the practice followed under the rule; (6) the consequences of a particular interpretation; and (7) the prior practice, if any, including other rules and Acts of Assembly, upon the same or similar subjects.Pa.R.J.A. 108(c).
Rule of Judicial Administration 104 echoes Rule of Procedure 126. Pa.R.J.A. 104.
Pursuant to Rule 108(c)(2), I begin with a review of the commentary accompanying Rule 238. The 1997 comment explains, with regard to Rule 238(c): "One court of common pleas has ruled that the entry of judgment under Rule 227.4 prior to the disposition of an unopposed motion for delay damages under Rule 238 precludes the award of such damages. This is a result that was not intended." Pa.R.Civ.P. 238, Explanatory Comment-1997. Thus, the notice requirement of Rule 238(c), in tandem with Rule 238(c)(3)(i), which forbids entry of judgment prior to a ruling on a pending motion for delay damages, was enacted to ensure that the moving party did not forfeit delay damages without a full and fair opportunity to litigate the issue prior to entry of judgment. In other words, the enactment of Rule 238(c)'s notice requirement was part of an effort to ensure substantive consideration of a pending motion for delay damages and prevent the movant from forfeiting delay damages because of a procedural irregularity. Yet in this case, where the parties have engaged in substantive litigation of the motion for delay damages, the Majority relies on the notice requirement to prevent recovery because of a procedural irregularity. The Majority's result flies in the face of the comment accompanying Rule 238.
There appears to be no Pennsylvania Supreme Court precedent on the issue before us.
Next, I turn to other similar procedures, in accord with Rule 108(c)(4). I agree with the Majority that that Rule of Civil Procedure 1018.1 is worthy of consideration here, but I disagree with the Majority's analysis. In the context of a civil complaint, Rule 1018.1 provides that every complaint "shall begin" with a notice to defend. Pa.R.Civ.P. 1018.1. But in that Rule, as in Rule 238, the Rule does not expressly define the penalty for lack of compliance therewith. Our courts have held that in the case of noncompliance with Rule 1018.1, the filing party may not take a default judgment if the opposing party fails to respond. Mother's Restaurant v. Krystkiewicz, 861 A.2d 327, 33738 (Pa. Super. 2004). In Krystkiewicz, this Court held that a default judgment taken after the plaintiff failed to include a notice to defend was void. Id.
The voiding of a default judgment in some cases does not, however, mean that all parties who fail to comply with Rule 1018.1 are permanently deprived of relief in all cases. Rather, the Rules of Civil Procedure allow amendment of complaints by consent of the opposing party or with leave of court. Pa.R.Civ.P. 1033(a). "Leave to amend lies within the sound discretion of the trial court and the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party." Ritz v. Ramsay, 305 A.3d 1056, 1063-64 (Pa. Super. 2023). Thus, while noncompliance with Rule 1018.1 precludes the entry of a default judgment, it need not and does not permanently and finally preclude relief to all parties in all cases.
In the recent case of Gould v. Wagner, 316 A.3d 634 (Pa. Super. 2024), the trial court held that, because a petition to fix the fair market value of real property lacked the required notice, the filing party failed to comply with the applicable statute of limitations. Id. at 641. I do not dispute that a defective pleading may be fatal in some cases. As I explain in the main text, the law is clear that a defective pleading is not fatal in all cases. As Gould dealt with the application of a different statute under different circumstances, I do not believe it bears on the outcome here.
Likewise, Rule 1019 provides that "the material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a) (emphasis added). Failure to adhere to this mandate may result in a successful preliminary objection, such as under Rule 1028(a)(3), for insufficient specificity in a pleading, or under Rule 1028(a)(4) for failure to state a claim upon which relief can be granted. But, again, a deficient pleading can be amended in appropriate cases. The filing party is not necessarily out of court.
Our discovery rules also contain mandates. Rule 4006 mandates that written interrogatories "shall be answered fully and completely unless objected to ...." Pa.R.Civ.P. 4006(a)(2). Rule 4019 governs sanctions for noncompliance and provides the trial court with a range of options, including designating certain facts as established, forbidding a noncompliant party to support or oppose a claim or defense, holding a noncompliant party in contempt, or entering an appropriate order the trial court believes to be just. Pa.R.Civ.P. 4019(c). Thus, the nature of the remedy is within the trial court's discretion, and Rule 4019(c)(5) clothes the trial court with discretion to do whatever is just.
A trial court's discretion to do whatever is just leads me to Rule of Judicial Administration 108(c)(6), which I believe is similar to Rule 4019(c)(5) in that it requires consideration of the consequences of a particular interpretation. Pa.R.J.A. 108(c)(6). In other words, courts should consider whether a particular interpretation of a rule will lead to unjust results. In applying Rule 108(c)(6), I am mindful of Rule of Civil Procedure 126, which, as explained above, permits courts to overlook procedural defects that have no substantive effect on the opposing party. The Majority's holding disregards this principle. Nothing in the express language of Rule 238 supports the Majority's conclusion, and Rule 126 militates against it. In the case before us, despite the lack of the prescribed notice, Appellee was aware of Appellant's motion for delay damages, filed a response, and opposed it during oral argument before the trial court. In other words, Appellee received notice and had a full and fair opportunity to litigate the issue. But rather than overlooking a procedural defect in light of these circumstances, the Majority relies on the lack of notice to preclude Appellant from recovering delay damages.
I believe the Majority's result is unjust, unwarranted by the text of Rule 238, in tension with Rules of Civil Procedure and Rules of Judicial Administration that govern our analysis here, and in tension with our treatment of other, similar rule-based mandates. I would vacate the judgment and remand for further consideration of Appellant's motion for delay damages.
I respectfully dissent.