J-A15017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BENJAMIN KOWALCZYK

v.

FREDERICK L. BOLLEN

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1 MDA 2018

Appeal from the Order Entered November 29, 2017

In the Court of Common Pleas of Cumberland County Civil Division at 

No(s): 2014-06580

BEFORE: PANELLA, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED JULY 30, 2018

Frederick L. Bollen (Appellant) appeals from the order denying his 

petition to open or strike the default judgment entered in favor of Benjamin 

Kowalczyk (Kowalczyk). We affirm.

In April of 2012, Kowalczyk purchased a residential property at 217 

Eutaw Avenue in New Cumberland, Pennsylvania, for $60,000, with the intent 

to renovate and reside in it. The property was one half of a duplex, sharing a 

wall with the property at 215 Eutaw Avenue. Appellant and his wife resided 

at 215 Eutaw Avenue, which was owned by Appellant’s mother.1

In July of 2014, Kowalczyk sued Appellant in Magisterial District Court, 

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1 According to Kowalczyk, Appellant and his wife moved out in late 2012 or 

early 2013, and around March 31, 2014, Appellant became the owner 

following the death of his mother. Kowalczyk’s Complaint, 3/24/16, at 5.
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averring that beginning in the fall of 2012, his use and enjoyment of his 

property was precluded by the foul stench and poor condition of Appellant’s 

home. Specifically, Kowalczyk averred that Appellant had a dozen or more 

cats but neglected to provide them proper care or adequately clean their urine 

and defecation, several cats died inside the home, but Appellant’s wife failed

to cure the deteriorated condition of the home. Kowalczyk further averred 

that when Appellant and his wife moved out sometime in late 2012 or early 

2013, they left the cats unattended and neglected inside the property. On 

November 12, 2014, the Magisterial District Judge awarded judgment in favor 

of Kowalczyk in the amount of $11,208.50. Appellant appealed to the Court 

of Common Pleas (trial court), but then on April 30, 2015, filed a Chapter 13 

bankruptcy petition, which stayed the case.

The bankruptcy court dismissed Appellant’s bankruptcy petition on 

March 23, 2016, and the following day, Kowalczyk filed a complaint in the trial 

court. Kowalczyk averred the same allegations and raised one claim each of 

nuisance and intentional infliction of emotional distress.2 Appellant did not file 

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2

In support of his claim of intentional infliction of emotional distress, 

Kowalczyk claimed that Appellant told him that he “would never see any 

money of the [Magisterial District Court] judgment because [Appellant] 

intended to file bankruptcy.” Kowalczyk’s Complaint at 8-9. Kowalczyk

further averred that Appellant abused bankruptcy proceedings in order to

thwart or eliminate his claim, and that Appellant deliberately failed to cure the 

continuing nuisance caused by the unattended cats.
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any response. On April 26, 2016, Kowalczyk filed a praecipe to enter default 

judgment against Appellant, who was pro se, and serviced a “10-day notice”

on Appellant, as required by Pa.R.Civ.P. 237.13

Nine days thereafter, on May 5, 2016, Appellant filed a second Chapter 

13 bankruptcy petition. Consequently, this matter was stayed until April 25, 

2017, when, upon Appellant’s voluntary motion to dismiss, the bankruptcy 

court dismissed the bankruptcy case.

On April 28, 2017, Kowalczyk filed a second praecipe to enter default 

judgment, in the amount of $71,208.50 — representing $60,000 for “[l]oss 

for purchase value of 217 Eutaw Avenue property” and $11,208.50 for 

“[i]mprovements to [the] property” and loss of use of the property. 

Kowalczyk’s Praecipe to Enter Judgment by Default, 4/28/17. Kowalczyk also 

certified that two days earlier, on April 26th, he served notice on Appellant.

On May 1, 2017, the trial court’s prothonotary mailed Appellant notice 

of entry of default judgment against him. On May 5th, Appellant filed a pro 

se “Answer & New Matter” — his first filing in this case, which we quote 

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3 See Pa.R.C.P. 237.1(a)(2)(ii) (“No judgment . . . by default for failure to 

plead shall be entered by the prothonotary unless the praecipe for entry 

includes a certification that a written notice of intention to file the praecipe 

was mailed or delivered . . . after the failure to plead to a complaint and at 

least ten days prior to the date of the filing of the praecipe to the party against 

whom judgment is to be entered and to the party’s attorney of record, if 

any.”). We note that the certified record includes only Kowalczyk’s certificate 

of service stating that he served notice on Appellant, but does not include the

April 26, 2016 praecipe to enter judgment itself.
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verbatim:4

ANSWER AND NEW MATTER

And now, comes the Defendant, (your name), pro se, who 

answers Plaintiff’s Complaint as follows:

1. Paragraph 1 is admitted.

2. Paragraph 2 is admitted.

3. Paragraph 3 is denied. (Explain what the true facts are).

4. Paragraph 4 is denied (Explain what the true facts are).

5. Paragraph 5 is admitted in part and denied in part. (Explain 

what part is admitted and what part is denied, and what the true 

facts are; or, if you do not know what the fact are, then use the 

following phrase: “After reasonable investigation, I am without 

knowledge or information sufficient to form a belief as to the truth 

of paragraph 5, which is therefore denied.”)

(Admit, or deny and explain, the other paragraphs of the 

complaint in this same way. If you have been advised by an 

attorney that the allegation is a conclusion of law, then use the 

phrase: “The allegation in paragraph is a conclusion of law to 

which no response is required.”)

NEW MATTER

6. (Here write out any other facts you feel the Court should know 

in your favor. Number each paragraph. Keep each paragraph 

short. Here is where you write out in separately numbered 

paragraphs each affirmative defense you are claiming such as 

payment, statute of limitations, mistaken identity, prior 

bankruptcy filing and so forth.)

WHEREFORE, the defendant requests that judgment be 

entered against the plaintiff.

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4

It is apparent that the second and third page of Appellant’s “Answer & New 

Matter” were transposed. We have quoted the pages in the correct order.
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Appellant’s Answer & New Matter, 5/5/17, at 1-2.

Three months thereafter, on August 3, 2017, Appellant filed a third 

Chapter 13 bankruptcy petition. He was represented by Kara Katherine 

Gendron, Esquire.5

On September 25, 2017 — four and a half months after the entry of 

default judgment against him — Appellant filed a counseled petition to open 

and strike the default judgment. Appellant was represented by Ralph M. 

Salvia, Esquire. The petition argued that: (1) Appellant’s pro se “Answer & 

New Matter” should be deemed a petition to open or strike the default 

judgment; and that (2) it was timely under both Pa.R.Civ.P. 237.3 (if the 

petition for relief is filed within 10 days of entry of a default judgment, the 

court shall open the judgment if the proposed preliminary objection has merit 

or the proposed answer states a meritorious defense) or the standards set 

forth in Schultz v. Erie Ins. Exchange, 477 A.2d 471 (Pa. 1984).

6

 The 

petition further averred that Kowalczyk’s complaint did not set forth an 

amount for damages in sum certain, and thus that damages should be 

assessed at trial. Finally, Appellant’s counsel sought leave to file an answer 

to the complaint, attaching a copy of the proposed answer.

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5 As we discuss infra, the bankruptcy court has granted relief from the 

automatic stay so that the appeal before this Court may proceed.

6 We review the standards discussed in Schultz in our summary of the 

relevant law, including Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 175 

(Pa. Super. 2008), infra.
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The trial court heard oral argument on Appellant’s petition to open or 

strike on November 20, 2017. At this time, Appellant was represented — and 

continues to be represented — by Bruce J. Warshawsky, Esquire. The trial 

court denied Appellant’s petition on November 29th. Appellant timely 

appealed and complied with the court’s order to file a Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal.

On June 11, 2018, this panel issued rule to show cause why this appeal 

should not be stayed due to Appellant’s third bankruptcy filing. In response, 

Appellant sought relief from the automatic stay in the bankruptcy court, which 

was granted on June 13th. Appellant provided this Court a copy of the 

bankruptcy court’s order, permitting the present appeal to proceed provided 

that the stay remains in effect with respect to enforcement of any judgment 

against Appellant. Accordingly, we discharged our rule to show cause, and 

proceed to the merits of Appellant’s claims.

Appellant presents two issues for our review:

[1.] Did the Trial Court abuse its discretion by failing to exercise 

its equitable powers to open the Default Judgment when 

[Appellant] substantially conformed with the applicable rules and 

the rights of [Kowalczyk], would not have been substantially 

affected?

[2.] Did the Trial Court commit an error of law by failing to find 

that the Prothonotary lacked the authority to assess damages 

pursuant to Pa.R.[Civ.]P. 1037(b), as the damages were neither 

a sum certain nor an accurate reflection of the cost of repairs, 

which constituted a fatal defect of record, requiring that the 

Default Judgment be stricken?

Appellant’s Brief at 2-3.
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Appellant first contends that the trial court abused its discretion in 

declining to exercise equitable powers to open the default judgment. He 

maintains that the filing of his pro se “Answer & New Matter” substantially 

conformed with Rule 237.3’s 10-day filing period for a petition for relief from 

default judgment. In any event, Appellant further argues, he “promptly 

obtained counsel . . . upon realizing in August 2017 (presumably with the 

assistance of Bankruptcy counsel[ ]) that his pro se filing was inadequate,” and 

that the trial court erred in failing to consider his counseled petition to open 

or strike. Id. at 6-7. He requests this Court apply Pa.R.Civ.P. 126 (rules of 

civil procedure shall be liberally construed to secure the just, speedy and 

inexpensive determination of every action or proceeding), maintains that 

Kowalczyk will not be prejudiced if the default judgment is opened, and 

concludes that “[t]he combination of” his two filings met the requisite 

elements for opening a default judgment. Appellant’s Brief at 8-9.

As the trial court pointed out:

A petition to strike a default judgment and a petition to open a 

default judgment are two distinct remedies, which are generally 

not interchangeable. A petition to strike a judgment operates as 

a demurrer to the record. As such, it is not a matter calling for 

the exercise of discretion. A petition to strike a judgment may be 

granted only where a fatal defect in the judgment appears on the 

face of the record.

See Williams v. Wade, 704 A.2d 132, 134 (Pa. 1997) (citation omitted); 

Trial Court Opinion, 2/16/18, at 2. This Court has explained:

It is well settled that a petition to open a default judgment is 

an appeal to the equitable powers of the court, and absent an 
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error of law or a clear, manifest abuse of discretion, it will not be 

disturbed on appeal. An abuse of discretion occurs when a trial 

court, in reaching its conclusions, overrides or misapplies the law, 

or exercises judgment which is manifestly unreasonable, or the 

result of partiality, prejudice, bias or ill will.

Myers, 986 A.2d at 175 (citation omitted).

To the extent that Appellant now argues that all petitions to open or 

strike a default judgment must be filed within 10 days of the entry of 

judgment, he is mistaken.7 This Court has explained:

“In general, a default judgment may be opened when three 

elements are established: the moving party must (1) promptly file 

a petition to open the default judgment, (2) show a meritorious 

defense, and (3) provide a reasonable excuse or explanation for 

its failure to file a responsive pleading.” However, [Pa.R.Civ.P. 

237.3] ease[s] the burden of parties who move promptly for relief 

from judgment entered by default or non pros. Specifically, Rule 

237.3 provides that:

* * *

(b) If the petition is filed within ten days after the entry 

of the judgment on the docket, the court shall open the 

judgment if the proposed complaint or answer states a 

meritorious cause of action or defense.

Penn-Delco Sch. Dist. v. Bell Atlantic-Pa, Inc., 745 A.2d 14, 17 (Pa. 

Super. 1999) (citation omitted).

Here, the trial court mailed noticed of the entry of default judgment to 

Appellant on May 1, 2017. Appellant filed a pro se “Answer & New Matter”

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7

It appears that Appellant has abandoned the alternative argument set forth 

in his counseled petition to open or strike — that he should be deemed to have 

filed a timely petition under Schultz, 477 A.2d 471.
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within 10 days, on May 5th. In its opinion, the trial court acknowledged Rule 

126’s directive to liberally construe the rules of civil procedure, but ultimately 

found that Appellant’s pro se filing was “woefully inadequate,” where it was 

“clearly a template for pro se litigants and [Appellant] didn’t even bother to 

fill in the blanks, so to speak,” and thus it wholly failed to state a meritorious 

cause of action or defense. See Pa.R.Civ.P. 237.3(b)(2); Trial Court Opinion, 

2/16/18, at 3-4. Accordingly, Appellant was not eligible for the relaxed burden 

provided by Rule 237.3 to parties who move promptly for relief. See PennDelco Sch. Dist., 745 A.2d at 17. Nevertheless, he was not automatically 

precluded from relief.

This Court has stated:

Generally speaking, a default judgment may be opened if the 

moving party has (1) promptly filed a petition to open the default 

judgment, (2) provided a reasonable excuse or explanation for 

failing to file a responsive pleading, and (3) pleaded a meritorious 

defense to the allegations contained in the complaint. Moreover,

we note the trial court cannot open a default judgment based on 

the “equities” of the case when the defendant has failed to 

establish all three of the required criteria.

With regard to the first prong, whether the petition to open was 

timely filed, we note:

The timeliness of a petition to open a judgment is 

measured from the date that notice of the entry of the 

default judgment is received. The law does not establish a 

specific time period within which a petition to open a 

judgment must be filed to qualify as timeliness. Instead, 

the court must consider the length of time between 

discovery of the entry of the default judgment and the 

reason for delay.

* * *
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In cases where the appellate courts have found a “prompt” and 

timely filing of the petition to open a default judgment, the period 

of delay has normally been less than one month. See Duckson 

v. Wee Wheelers, Inc., . . . 620 A.2d 1206 (Pa. Super. 1993) 

(one day is timely); Alba v. Urology Associates of Kingston, . 

. . 598 A.2d 57 (Pa. Super. 1991) (fourteen days is timely); Fink 

v. General Accident Ins. Co., 594 A.2d 345 (Pa. Super. 1991) 

(period of five days is timely).

* * *

With regard to the second prong, “[w]hether an excuse is 

legitimate is not easily answered and depends upon the specific 

circumstances of the case. The appellate courts have usually 

addressed the question of legitimate excuse in the context of an 

excuse for failure to respond to the original complaint in a timely 

fashion.”

* * *

This Court has held that “where the failure to answer was due to 

an oversight, an unintentional omission to act, or a mistake of the 

rights and duties of the appellant, the default judgment may be 

opened.”

Myers, 986 A.2d at 175-177 (some citations omitted). Finally, Rule 126 

provides:

The rules shall be liberally construed 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 substantial rights of the 

parties.

Pa.R.Civ.P. 126.

Even if we considered, as Appellant urges, his September 25, 2017 

counseled petition to open in conjunction with the pro se “Answer & New 

Matter,” we disagree that his response was promptly filed. As stated above, 
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petitions to open default judgments that have been deemed “promptly” filed 

have normally been filed within a month of the entry of default judgment, and 

the September 25, 2017 petition was filed almost four months after the May 

1st notice of entry of default judgment. See Myers, 986 A.2d at 176. With 

respect to why Appellant did not respond earlier, the counseled petition merely 

stated that Appellant was pro se and that he “has since sought counsel to 

represent him.” See id.; Appellant’s Petition to Strike and/or Open Default 

Judgment, 9/25/ at 2. However, as the trial court noted, Appellant “enjoyed 

the assistance of counsel during his bankruptcy and even listed [Kowalczyk

as] a creditor of the bankruptcy estate. This is no snap judgment.” See Trial 

Court Opinion, 2/16/18, at 3. In light of all of the foregoing, Appellant’s 

counseled petition to open was not promptly filed and failed to provide a 

reasonable excuse or explanation for failing to file a responsive pleading. See 

Myers, 986 A.2d at 176. Accordingly, we do not disturb the trial court’s denial 

of Appellant’s petition to open the default judgment.

In Appellant’s second issue, he avers that the trial court erred in denying 

his petition to strike the default judgment, where the court should have found 

that the Prothonotary lacked authority to assess damages under Pa.R.Civ.P. 

1037(b).

8

 In support, Appellant contends that Kowalczyk’s complaint did not 

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8 See Pa.R.Civ.P. 1037(b)(1) (“The prothonotary shall assess damages for the 

amount to which the plaintiff is entitled if it is a sum certain or which can be 
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seek any sum certain damages, and that damages cannot be determined by 

computation because the complaint lacks any monetary amounts.9 Appellant 

reasons that although the trial court referred to a Magisterial District Court 

judgment against him for $11,208.50 and to ¶ 28 of the complaint, that 

paragraph of the complaint stated that in the Magisterial District Court, 

Kowalczyk sought $11,700.10 In any event, Appellant claims, in the de novo

appeal to the trial court, Kowalczyk could not substantiate his alleged 

damages simply by citing the amount of the Magisterial District Court’s award. 

Furthermore, Appellant asserts that Kowalczyk’s praecipe to enter a default 

judgment claimed $11,208.50 for improvements to his property and loss of 

use of the property, but the complaint did not include any monetary amounts 

for these alleged losses. Finally, Appellant claims that if Kowalczyk relied upon 

Rule 1037(b)(2), he was only entitled to the cost of repairs to the property, 

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made certain by computation, but if it is not, the damages shall be assessed 

at a trial at which the issues shall be limited to the amount of the damages.”).

9 Kowalczyk claims that Appellant did not raise this particular argument — that 

Kowalczyk failed to recite any dollar amount in the “prayer for relief” section 

of his complaint” — until his Rule 1925(b) statement, and thus this Court 

should find that claim waived. Kowalczyk’s Brief at 29. We decline to find 

waiver, as the petition to open fairly raised a claim that Kowalczyk’s complaint 

failed to set forth monetary amounts.

10 Appellant does, however, concede that the Magisterial District Judge

awarded $11,208.50 to Kowalczyk. Appellant’s Brief at 11.
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and not any other damages.11

As stated above, “[a] petition to strike a judgment may be granted only 

where a fatal defect in the judgment appears on the face of the record.” 

Williams, 704 A.2d at 134. Rule 1037(b) provides:

The prothonotary, on praecipe of the plaintiff, shall enter 

judgment against the defendant for failure to file within the 

required time a pleading to a complaint which contains a notice to 

defend or, except as provided by subdivision (d), for any relief 

admitted to be due by the defendant’s pleadings.

(1) The prothonotary shall assess damages for the amount 

to which the plaintiff is entitled if it is a sum certain or which 

can be made certain by computation, but if it is not, the 

damages shall be assessed at a trial at which the issues shall 

be limited to the amount of the damages.

(2) In all actions in which the only damages to be assessed 

are the cost of repairs made to property

(i) the prothonotary on praecipe of the plaintiff, waiving 

any other damages under the judgment, and the filing of 

the affidavits provided by subparagraphs (ii) and (iii) shall 

assess damages for the cost of the repairs;

(ii) the praecipe shall be accompanied by an affidavit of 

the person making the repairs . . . ;

(iii) the plaintiff shall send a copy of the affidavit and 

repair bill to the defendant . . . .

Pa.R.Civ.P. 1037(b)(2)(i)-(iii).

This Court has stated:

Once a litigant files a proper praecipe seeking the entry of a 

default judgment, the Rules direct the court to perform two

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11 See Pa.R.Civ.P. 1037(b)(2) (applying to actions “in which the only damages 

to be assessed are the cost of repairs made to property”).
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essential steps. Foremost, in actions at law . . . , the Rules direct 

the prothonotary to enter a default judgment on the docket. See

Pa.R.C.[Civ.]P. 1037(b) . . . . By virtue of entering this default 

judgment on the docket, the Prothonotary precludes the opponent 

from challenging his or her liability.

Once the prothonotary has entered the default judgment, the 

next step involves the determination of the appropriate remedy 

for the opponent’s default. In those actions at law where the 

amount of damages may be ascertained from the pleadings, an 

assessment of damages will accompany the prothonotary’s entry 

of the default judgment. See Pa. R.C.P. 1037(b)(1). In those 

instances where the amount of legal damages is not certain or 

where the plaintiff has sought equitable relief, the trial court has 

the independent obligation to fashion the appropriate relief at a 

future date. See Pa. R.C.P. 1037(b)(1)[.]

Mother’s Rest., Inc. v. Krystkiewicz, 861 A.2d 327, 334-335 (Pa. Super. 

2004) (en banc) (some citations omitted).

Here, the trial court found that the damages sought by Kowalczyk were 

a sum certain:

The damages sought . . . were clearly and concretely stated in his 

Complaint. The two items of damages are: a Magisterial District 

Judge judgment against [Appellant] in the amount of $11,208.50, 

([Kowalczyk’s Complaint at] ¶ 28), and $60,000, representing the 

purchase price of the home, the value of which was negated by 

[Appellant’s] actions (¶ 4). These sums certain represent the 

$71,208.50 judgment entered by the Prothonotary. This does not 

constitute a fatal defect on the record and there is no basis for 

striking the default judgment.

Trial Court Opinion, 2/16/18, at 4. We agree.

Kowalczyk’s complaint sought “monetary loss of his investment in the 

purchase of 217 Eutaw Property,” monetary loss for the materials he acquired 

to repair and improve the interior and exterior condition of the home, loss of 

use of the 217 Eutaw Property, and out-of-pocket loss for rent paid on the 
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apartment at which he lived. Kowalczyk’s Complaint at 6-7, 10. The only 

monetary amounts listed in the complaint, however, were: (1) the $60,000 

purchase price for 217 Eutaw Avenue, id. at ¶ 4; (2) Kowalczyk’s claim in the 

Magisterial District Court for $11,700 “damages he incurred to that date,” id.

at ¶ 28; and (3) the Magisterial District Court’s ultimate award of $11,208.50. 

Id.at ¶¶ 31, 33.

Contrary to Appellant’s argument, Kowalczyk’s complaint specified the 

amounts — $60,000 and $11,208.50 — that were later sought in his praecipe 

to enter default judgment. See Pa.R.Civ.P. 1037(b)(1); Mother’s Rest., 

Inc., 861 A.2d at 334-335. While Appellant’s challenge to the $11,208.50 

amount may go to the merits or itemization of that amount, it is clear that the 

amount may be “ascertained from the pleadings.” See Mother’s Rest., Inc., 

861 A.2d at 334-35. Thus, the trial court did not err in affirming the judgment 

amount.

Furthermore, Appellant’s argument — that if Kowalczyk were 

proceeding under Rule 1037(b)(2), he was only entitled to damages for repairs

— is mistaken. First, Rule 1037(b)(2) applies to “all actions in which the only 

damages to be assessed are the cost of repairs made to property.” Pa.R.Civ.P. 

1037(b)(2). This provision cannot, however, be extrapolated to provide, as 

Appellant suggests, that every plaintiff who seeks damages for the costs of 

repairs to property must waive a claim to all other damages. See Pa.R.Civ.P. 

127(b) (“Every rule shall be construed, if possible, to give effect to all its 
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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.”). 

Furthermore, Appellant points to no place in the record where Kowalczyk has 

indeed opted to proceed under Rule 1037(b)(2). For the foregoing reasons, 

we affirm the trial court’s denial of Appellant’s petition to strike the default 

judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/30/2018