A recent decision from the Pennsylvania Superior Court has sparked a sharp disagreement among the judges regarding the application of mandatory procedural rules, specifically concerning the awarding of delay damages. In a dissenting opinion filed in the case of *Arreguin v. Kensing*, Judge Sullivan forcefully criticized the majority’s decision, arguing it improperly set aside the clear, unambiguous requirements of Pennsylvania Rule of Civil Procedure 238(c) in favor of a discretionary, equitable standard.
The core of the dispute centers on a litigant’s failure to include a specific, mandatory written notice—a “notice to defend”—within their motion seeking delay damages, as required by Rule 238(c).
The Unambiguous Mandate of Rule 238(c)
Judge Sullivan’s dissent focuses heavily on the established principles of legal interpretation. Citing rules governing the construction of legal mandates, the judge emphasized that when a rule’s language is “clear and free from all ambiguity,” the court must follow the letter of the rule, rather than trying to pursue its perceived “spirit.”
Rule 238(c) mandates that any plaintiff seeking delay damages “shall file a written motion” which itself “shall begin with the notice to defend” language specified by the rule. Judge Sullivan pointed out that the word “shall” is definitively mandatory, citing established precedent where “shall” is interpreted as leaving no room for judicial discretion.
The dissenting opinion notes that the majority opinion itself acknowledged that Rule 238(c) contains mandatory and unambiguous language. However, the majority then proceeded to apply a “substantial compliance” test, effectively bypassing the rule’s strict requirements by invoking the discretionary Rule 126, which allows courts to disregard procedural errors if they do not cause prejudice.
A Slippery Slope of Discretion
Judge Sullivan expressed deep concern that the majority’s ruling amounts to “making law,” a task reserved for the Supreme Court, rather than correcting errors below. By applying a flexible, non-mandatory equitable standard where the rule demands strict adherence, the court risks creating an “ad hoc approach” that undermines procedural certainty.
The dissent draws parallels to numerous other Pennsylvania Rules of Civil Procedure (like 237.1, 1018.1, and 1026) which require specific written notices. In those contexts, jurisprudence has overwhelmingly held that a failure to include the prescribed notice results in a “fatally defective pleading.” Knowledge of the litigation by the opposing party does not cure this defect.
The judge specifically referenced cases like *Lines v. Timothy Britton Construction Services, Inc.*, where the failure to adhere to the notice requirements of Rule 237.1 led to a reversal, even when the parties had reached a consent order. In that instance, the court rejected the argument that prior knowledge excused the mandatory notice.
The Supreme Court’s Precedent on ‘Substantial Compliance’
Crucially, Judge Sullivan argued that the majority’s reliance on Rule 126 to excuse the violation is contrary to binding Supreme Court precedent, particularly the ruling in *Womer v. Hilliker*.
In *Womer*, the Supreme Court rejected the argument that substantial compliance with a mandatory rule (Rule 1042.3 regarding a certificate of merit) was sufficient when the required filing was entirely absent. The Supreme Court held that a party must, at minimum, attempt to comply with the rule’s clear mandate *before* the equitable considerations of Rule 126 can even be considered.
“A party cannot bypass the clear and unambiguous mandates in a rule and then invoke Rule 126,” the dissent asserted, noting that the majority’s decision to excuse the *wholesale dismissal* of the required notice in the *Arreguin* case directly contradicts the *Womer* holding.
Sympathy vs. The Rule of Law
In concluding the dissent, Judge Sullivan expressed apprehension that the majority’s decision was motivated by sympathy for the “undeniably tragic circumstances underlying this case.” While acknowledging the emotional weight of the facts, the judge warned that ignoring “bright-line statutory interpretation principles” for sympathetic facts damages the judiciary’s stature.
Citing a recent concurring opinion, the dissent stressed that judges cannot disregard clear mandates simply to “do equity.” Such actions, the judge warned, “undermines the confidence of the people of this Commonwealth in the judiciary.” Because the trial court correctly applied the mandatory language of Rule 238(c) by denying delay damages, Judge Sullivan concluded that the Superior Court should have affirmed the lower court’s decision. Judge King joined this dissenting opinion.