J-A14028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RISHABH SOFTWARE PRIVATE LTD

v.

COGENT INFOTECH CORPORATION

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1346 WDA 2019

Appeal from the Order Entered July 30, 2019

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

No(s): GD-18-015965

RISHABH SOFTWARE PRIVATE LTD

v.

COGENT INFOTECH CORPORATION

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1347 WDA 2019

Appeal from the Order Entered July 30, 2019

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

No(s): No. GD-18-015965

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 06, 2020

Cogent Infotech Corporation (“Cogent”) appeals from the order denying

its petition to open or strike a default judgment. We affirm. Rishabh Software Private LTD (“Rishabh”) “is a business with offices in

Gujarat, India.” Complaint, filed 12/5/18 at ¶ 1. Cogent is a corporation with

its place of business in Pittsburgh, Pennsylvania. Id. at ¶ 2. Rishabh filed and

served a Complaint against Cogent in December 2018, alleging that Cogent
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failed to pay for services provided by Rishabh. Id. at ¶ 7, 10. Cogent did not

file any responsive pleading to the Complaint. Rishabh filed a Praecipe for

Default Judgment in March 2019, which included a certification that it had

mailed Cogent a notice of default judgment at Cogent’s corporate address on

February 21, 2019. The Prothonotary entered the default judgment on March

5, 2019, and sent notice of the docket entry to Cogent the following day,

March 6, 2019. The judgment included attorney’s fees.

Nearly five months later, on July 30, 2019, after Rishabh served writs

of execution against First National Bank and Wells Fargo Bank, Cogent filed

an Emergency Petition to Strike/Open Default Judgment, to Dismiss Complaint

and for Relief from Execution Proceedings. Cogent argued that the court

should strike or open the judgment because Rishabh was a foreign entity that

had conducted business in Pennsylvania without having registered to do so, and it therefore lacked capacity to bring suit in Pennsylvania. See Emergency

Petition at 2-4 (unnumbered), ¶¶ 3-7 (citing 15 Pa.C.S.A. § 411(b)). Cogent further argued that the court should open the default judgment

for three additional reasons. First, it contended that the breach of contract

claim was based on an unsigned proposal that allegedly made Cogent’s

signature a condition precedent to acceptance. Second, it argued that if there

was a contract, it required the claim to go to alternative dispute resolution.

Third, it maintained that the contract did not provide for attorney’s fees. See

Emergency Petition, at ¶¶ 8-10. Cogent also alleged that its counsel had no

notice of the default judgment until a week prior to its filing of the Petition,
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when Rishabh attempted to execute the judgment. Id. at 5 (unpaginated).

After Rishabh filed a response, the court denied the petition. See Orders, filed

7/30/19. Cogent filed this timely appeal. It raises three issues:

I. Does 15 Pa.C.S. § 411(b)’s prohibition against

[Rishabh’s] maintenance of any action or proceeding

in this Commonwealth, unless such nonregistered

foreign association has registered to do business in

this Commonwealth, also prohibit [Rishabh] from

obtaining affirmative judgments against [Cogent] and

its bank by praecipe, such that the lower court lacked

the power or authority to enter those judgments,

without any showing by [Rishabh] that it is registered

to do business in this Commonwealth?

II. Does the controlling precedent of our unanimous

Supreme Court in Franklin Interiors v. Wall of

Fame Management Company, Inc., 510 Pa. 597,

511 A.2d 761 (1986), holding that a purported claim

for contract damages, such as the sole claim at issue,

based on an unsigned written proposal document

requiring signed acceptance is, without more,

incapable of sustaining a judgment thus requiring that

the judgment therein be stricken, also require that the

judgments herein be stricken?

III. Did [Rishabh’s] counsel fail to provide adequate

advance notice due under Pa.R.C.P. 237.1(a)(2)(ii)

and the Due Process Clause of the 14th Amendment

to the United States Constitution, where the record is

devoid of any evidence that anyone ever received any

advance notice on behalf of the incorporeal corporate

[Cogent], advising that [Rishabh’s] counsel intended

to enter default judgment against [Cogent] such that

the judgments at issue herein are void ab initio, requiring that they be stricken?

Cogent’s Br. at 9-10.

Cogent first argues that the court should have stricken the default

judgment because 15 Pa.C.S.A. § 411(b) bars an unregistered foreign
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company from “obtaining any judgment in its favor in this Commonwealth

. . . .” Cogent’s Br. at 34 (emphasis in original); see also id. at 31, 43. It

maintains that Rishabh’s failure to register deprived the court of subject

matter jurisdiction. See id. at 31, 35, 36, 39, 41.

Our standard of review of an order granting or denying a petition to

strike a default judgment is de novo. U.S. Bank Nat’l Ass’n for Pa. Hous.

Fin. Agency v. Watters, 163 A.3d 1019, 1028 (Pa.Super. 2017). A petition

to strike a default judgment requires the petitioner to demonstrate a fatal

defect appearing on the face of the record. Id.; Williams v. Wade, 704 A.2d

132, 134 (Pa.Super. 1997). “When deciding if there are fatal defects on the

face of the record for the purposes of a petition to strike a [default] judgment,

a court may only look at what was in the record when the judgment was

entered.” Cintas Corp. v. Lee's Cleaning Servs., Inc., 700 A.2d 915, 917

(Pa. 1997).

This issue is meritless. The failure of a foreign company to register to

do business is not a jurisdictional defect or a defect appearing on the face of

documents in the record when the Prothonotary entered the default judgment. Rather, it deprives the company of the capacity to bring suit in Pennsylvania

courts. See 15 Pa.C.S.A. § 411(b); Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 257 (Pa.Super. 2015). Indeed, Cogent presented this argument

in its Emergency Petition as one going to capacity to sue, and not jurisdiction. Unlike lack of subject matter jurisdiction, lack of capacity to sue is a waivable

defense. See id. Its resolution requires information outside the record at the
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time the court entered the default judgment, and is thus not a fatal defect

appearing on the face of the record. The trial court properly rejected this claim.

Cogent next argues that the court should have stricken the judgment

because Rishabh based its claim on a document Cogent did not sign, and the

lack of signing precluded the entry of a valid judgment. In support, it cites

Franklin Interiors v. Wall of Fame Management Co., Inc., 511 A.2d 761

(Pa. 1986).

Franklin Interiors is inapposite. There, the Supreme Court held that

the trial court should have stricken a confessed judgment because no contract

had formed such that the clause authorizing the confessed judgment had

never become effective. Id. at 763. The Court cited language in the agreement

that the agreement did “not become a contract until approved by an officer

of” the plaintiff. Id. The Court concluded that that clause rendered signing by

the plaintiff a condition precedent to enforcing any part of the agreement,

including the confession of judgment clause. Id.

Here, we are not dealing with a confessed judgment, but rather an

ordinary default judgment. In such a case, the absence of a signature in an

agreement is not a fatal defect precluding the entry of the judgment. Rather,

it is a potentially meritorious defense going to contract formation. A party’s

authority to confess judgment is contingent on the formation of a contract. In

contrast, the court’s authority to enter a default judgment is not contingent

on the parties’ contract, but derives purely from Pennsylvania law. This claim

lacks merit.
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For its final claim, Cogent maintains that Rishabh violated Pa.R.C.P.

237.1 because Cogent allegedly did not receive a proper 10-day notice of

default judgment. Cogent argues that because Rishabh sent the notice to

Cogent itself, rather than to Cogent’s counsel, the court should have stricken

the default judgment. It further claims that the failure to strike the default

judgment on account of the alleged failure comply with Rule 237.1 deprived it

of due process.

Cogent’s final issue also lacks merit. Cogent waived any due process

claim by failing to raise it below in its Emergency Petition. Although it made

mention of such a claim in its motion for reconsideration, that was insufficient

to preserve it for appeal. See Rabatin v. Allied Glove Corp., 24 A.3d 388,

391 (Pa.Super. 2011). It also waived any claim that a Rule 237.1 violation

required the trial court to strike the default judgment by failing to raise that

claim below. It presented the alleged violation to the lower court as a basis

for opening the judgment only.

Moreover, the claim of a Rule 237.1 violation lacks merit. The rule

requires a party to include in a praecipe to enter a default judgment a

certification that the party mailed “a written notice of intention to file the

praecipe” “to the party against whom judgment is to be entered and to the

party’s attorney of record, if any.” Pa.R.C.P. 237.1(a)(2)(i)-(ii); Ridgid Fire

Sprinkler Serv., Inc. v. Chaiken, 482 A.2d 249, 254 (Pa.Super. 1984). Failure to comply with this directive renders the record fatally defective. See

Erie Ins. Co. v. Bullard, 839 A.2d 383, 387 (Pa.Super. 2003). Here, the
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record shows that Cogent’s counsel did not enter his appearance until July 17,

2019, some four months after the entry of the default judgment. It follows

that he was not counsel of record when Rishabh mailed the notice. As Rule

237.1 only required Rishabh to mail the notice to Cogent, there was no

violation. Although Cogent alleges that its counsel had asked Rishabh’s

counsel on the phone to mail the notice to his attention, Rishabh’s alleged

failure to do so does not constitute a violation of Rule 237.1.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2020