J-S63017-15
2015 PA Super 254
AMERICHOICE FEDERAL
CREDIT : IN THE SUPERIOR COURT OF
UNION, : PENNSYLVANIA
:
Appellee :
:
v. :
:
RAYMOND ROSS AND SANDRA D. :
DIXON-ROSS, :
:
Appellants : No. 1224 EDA 2015
Appeal from the Order entered April 16, 2015,
Court of Common Pleas, Montgomery County,
Civil Division at No. 2012-CV-12383
BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.
OPINION BY DONOHUE, J.: FILED DECEMBER 07, 2015
Raymond Ross and Sandra D. Dixon-Ross (together, “Homeowners”)
appeal pro se from the April 16, 2015 order entered by the Montgomery
County Court of Common Pleas denying their motion to strike the default
judgment entered in this matter on June 4, 2013. Because we conclude that
the notice provided by AmeriChoice Federal Credit Union (“AmeriChoice”) of
its intention to obtain default judgment was defective on its face, we reverse
the trial court’s order and remand the case for further proceedings.
The record reflects the following pertinent procedural history relevant
to the resolution of this appeal. On May 9, 2012, AmeriChoice filed a
complaint in mortgage foreclosure against Homeowners. On June 20, 2012,
Homeowners, proceeding pro se, filed preliminary objections to the
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complaint. AmeriChoice filed preliminary objections to Homeowners’
preliminary objections on July 6, 2012. Following oral argument, the trial
court on May 1, 2013 entered an order sustaining AmeriChoice’s preliminary
objections, denying Homeowners’ preliminary objections, and requiring
Homeowners to file an answer to AmeriChoice’s complaint within twenty
days.
On May 9, 2013, Homeowners filed a motion requesting that the trial
court judge recuse from the matter, vacate all orders entered by him in the
matter, and stay the proceedings. On May 20, 2013, Homeowners filed
notice of removal of the case to the Federal District Court for the Eastern
District of Pennsylvania. By order authored on May 23, 2013 and entered in
the trial court’s docket on May 29, 2013, the federal court dismissed the
case for lack of jurisdiction and remanded it to the trial court for further
proceedings.
On May 23, 2013, AmeriChoice sent Homeowners written notice of its
intention to file a praecipe for default judgment (“the Notice”). The Notice
stated:
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE
FAILED TO TAKE ACTION REQUIRED OF YOU IN
THIS CASE. UNLESS YOU ACT WITHIN TEN (10)
DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU
WITHOUT A HEARING AND YOU MAY LOSE
YOUR PROPERTY OR OTHER IMPORTANT
RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A
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LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR
TELEPHONE THE FOLLOWING OFFICE TO FIND
OUT WHERE YOU CAN GET LEGAL HELP:
MONTGOMERY COUNTY LAWYER REFERRAL
SERVICE
100 West Airy Street (Rear)
Norristown, PA 19404
(610) 279-9660 ext. 201
AmeriChoice’s Praecipe for Default Judgment, 6/4/13, at 2 (emphasis in the
original). Along with the Notice, AmeriChoice included the trial court’s May
1, 2013 order requiring Homeowners to file a responsive pleading to
AmeriChoice’s complaint and the federal district court’s order dismissing
Homeowners’ motion to remove the foreclosure action. On June 4, 2013,
AmeriChoice filed a praecipe for the entry of default judgment against
Homeowners for $113,998.57 plus interest, counsel fees and costs, which
the prothonotary entered.
On June 6, 2013 and June 29, 2014, Homeowners filed petitions to
strike the June 4, 2013 judgment.1 The record does not reflect that the trial
court took any action on either of these petitions. On July 6, 2014,
Homeowners filed a praecipe for the entry of an adverse order to permit
them to appeal that determination, but the lower court did not enter the
requested order denying their motions to strike. On July 21, 2014,
Homeowners filed in this Court a request for permission to appeal from an
1
The record reflects numerous, unrelated filings occurred in the interim.
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interlocutory order pursuant to Pa.R.A.P. 1311, which this Court denied on
August 26, 2014 because of Homeowners’ procedural misstep.2
On September 14, 2014, Homeowners filed a third motion to strike the
default judgment. On September 22, 2014, the trial court issued an order
setting the motion for argument, but subsequently vacated that order on
September 25, 2014 without further explanation. On September 28, 2014,
Homeowners filed a motion seeking “expedited consideration and resolution”
of their motion to strike the default judgment. The trial court entered an
order on October 3, 2014 stating that because Homeowners filed a
suggestion of bankruptcy on September 17, 2014, the court would not rule
upon any motions until the bankruptcy stay was lifted.
Thereafter, Homeowners continuously requested resolution of their
previously filed motions to strike the default judgment in various forms. The
record further reflects that Homeowners concomitantly repeatedly sought
protection in bankruptcy court. On April 9, 2015, following confirmation of
the dismissal of Homeowners’ bankruptcy filings, Homeowners filed the
petition to strike the default judgment that is at issue in this appeal,
asserting that the language of the Notice was not compliant with Rule 237.5
of the Pennsylvania Rules of Civil Procedure, as previously held by both this
2
Specifically, Homeowners failed to “seek certification pursuant to 42
Pa.C.S. § 702(b), i.e., that the order ‘involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an
immediate appeal from the order may materially advance the ultimate
termination of the matter.’” Order, 8/26/14.
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Court and the Commonwealth Court. The trial court entered an order
denying Homeowners’ petition on April 16, 2015.
Homeowners filed a timely notice of appeal. On July 6, 2013,
AmeriChoice filed a motion to quash the appeal, arguing that: (1) this is an
untimely appeal of Homeowners’ June 6, 2013 petition to strike the
judgment; (2) this appeal constituted “an improper collateral attack” on this
Court’s resolution of Homeowner’s prior appeal taken in this matter; (3) this
appeal is barred by the doctrine of res judicata; and (4) Homeowners’
docketing statement fails to comply with Pa.R.A.P. 3517. On August 19,
2015, this Court denied AmeriChoice’s motion without prejudice to re-raise
the claims before the merits panel.
In its responsive brief filed on appeal, AmeriChoice again raises most
of the arguments contained in its motion to quash and thus, prior to
addressing the merits of the appeal, we must first determine whether the
appeal should be quashed. First, AmeriChoice contends that because
Homeowners’ brief filed on appeal fails to strictly comply with the Rules of
Appellate Procedure, we should suppress their brief and quash the appeal.
AmeriChoice’s Brief at 9-20. Our review of Homeowners’ appellate brief
reveals that it does fail to conform to several Rules of Appellate Procedure,
most notably Rule 2116(a) and Rule 2119(a). As we have previously stated,
we need only quash an appeal based upon a defective appellate brief if such
defects “impair our ability to conduct appellate review.” PHH Mortgage
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Corp. v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014). Because of the
manner by which we decide this case, our review of the case is not impeded
by the defects in Homeowners’ brief, and we therefore decline to quash the
appeal on that basis.
AmeriChoice further asserts that this appeal constitutes a “collateral
attack” on this Court’s prior decision “denying [Homeowners’] previous
challenge to a petition to strike the default judgment, docketed at 90 EDM
2014.” AmeriChoice’s Brief at 22. This is a frivolous argument. There was
no “final judgment on the merits” entered by this Court as AmeriChoice
claims; rather, in the appeal docketed at 90 EDM 2014, this Court only
denied Homeowners’ request to appeal from an interlocutory order based
upon their failure to “seek certification pursuant to 42 Pa.C.S. § 702(b).”
Order, 8/26/14.
AmeriChoice next claims that Homeowners “are also barred by the
principle of res judicata because they have had three prior petitions to strike
the judgment[] where they have failed to prevail on the merits[, and f]inal
judgment was entered on the record on June 04, 2013.” AmeriChoice’s Brief
at 22 (italicization omitted). In order for a subsequent action to be wholly
barred by the doctrine of res judicata, it must share the following four
elements with the earlier judgment: (1) the same thing is being sued upon;
(2) in the same cause of action; (3) involving the same persons or parties;
and (4) in the same quality or capacity as the parties previously sued.
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Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super. 2009). The “thing being
sued upon” here is the motion to strike the default judgment entered in this
matter. As stated above, prior to April 16, 2015, the lower court never
finally resolved any of Homeowners’ petitions to strike the default judgment,
and this Court did not decide the merits of the appeal brought. As such, the
doctrine of res judicata is inapplicable.
Lastly, AmeriChoice argues that Homeowners’ docketing statement
failed to comply with Rule 3517 of the Pennsylvania Rules of Appellate
Procedure, as they “rais[ed] a plethora of issues in a vague and unclear
format,” and they raise issues in their brief on appeal that were not
contained in the docketing statement. AmeriChoice’s Brief at 23. Rule 3517
provides:
Whenever a notice of appeal to the Superior Court is
filed, the Prothonotary shall send a docketing
statement form which shall be completed and
returned within ten (10) days in order that the Court
shall be able to more efficiently and expeditiously
administer the scheduling of argument and
submission of cases on appeal. Failure to file a
docketing statement may result in dismissal of the
appeal.
Pa.R.A.P. 3517. Homeowners filed the required docketing statement in this
Court and raised therein the issue that, as discussed infra, we conclude is
determinative. See Docketing Statement, 5/19/15, at 3-4. We therefore
decline to quash the appeal on this basis as well.
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We now turn to address the merits of the appeal. On appeal,
Homeowners present thirteen issues for our review. We conclude, however,
that the case is ably resolved by addressing only one: “Whether the form
and content of Ameri[C]hoice’s [eighty-six]-word [] Notice is non-compliant
pursuant to Pa.R.C.P. 237.1 and Pa.R.C.P. 237.5[.]” Homeowners’ Brief at
5.3
In reviewing this question, we are guided by the following:
An appeal regarding a petition to strike a default
judgment implicates the Pennsylvania Rules of Civil
Procedure. Issues regarding the operation of
procedural rules of court present us with questions of
law. Therefore, our standard of review is de novo
and our scope of review is plenary.
A petition to strike a judgment is a common law
proceeding which operates as a demurrer to the
record. A petition to strike a judgment may be
granted only for a fatal defect or irregularity
appearing on the face of the record. A petition to
strike is not a chance to review the merits of the
allegations of a complaint. Rather, a petition to strike
is aimed at defects that affect the validity of the
judgment and that entitle the petitioner, as a matter
of law, to relief. A fatal defect on the face of the
record denies the prothonotary the authority to enter
judgment. When a prothonotary enters judgment
without authority, that judgment is void ab initio.
When deciding if there are fatal defects on the face
of the record for the purposes of a petition to strike a
3
AmeriChoice contends that Homeowners waived many of the issues raised
based upon Homeowners’ failure to raise them before the trial court in their
July 9, 2015 petition to strike the default judgment. See AmeriChoice’s
Brief at 14, 25-26, 28. AmeriChoice acknowledges, however, that
Homeowners raised below and preserved for appeal the issue upon which we
decide this case. Id. at 20, 26, 28-29.
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default judgment, a court may only look at what was
in the record when the judgment was entered.
Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1267-68
(Pa. Super. 2015) (internal citations, quotation marks, brackets, and
italicization omitted).
Of relevance to this appeal, Rule 237.1(a)(2) prohibits the trial court
prothonotary from entering default judgment against a party “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.” Pa.R.C.P. 237.1(a)(2)(ii). Rule 237.5 requires
the 237.1(a)(2) notice to “substantially” comply with the following format:
(CAPTION)
To: ___________________________
(Defendant)
Date of Notice: ________________
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED
TO ENTER A WRITTEN APPEARANCE PERSONALLY OR
BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT
WITHIN TEN DAYS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST
YOU WITHOUT A HEARING AND YOU MAY LOSE
YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER
AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO
OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS
OFFICE MAY BE ABLE TO PROVIDE YOU WITH
INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.
___________________________
(Name of Office)
___________________________
(Address of Office)
___________________________
(Telephone Number)
___________________________
(Signature of Plaintiff or Attorney)
___________________________
(Address)
Pa.R.C.P. 237.5.
Homeowners assert that AmeriChoice’s Notice failed to substantially
comply with Rule 237.5, thus depriving the trial court’s prothonotary of the
authority to enter default judgment pursuant to Rule 237.1. Homeowners’
Brief at 17-21. In support of their argument, Homeowners rely upon
Oswald v. WB Pub. Square Assocs., LLC, 80 A.3d 790 (Pa. Super. 2013),
and City of Philadelphia v. David J. Lane Adver., Inc., 33 A.3d 674, 679
(Pa. Commw. 2011). Homeowners’ Brief at 19-20.
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In Oswald, the plaintiff initiated an action against the defendant by
filing a complaint with proper service. After the defendant failed to respond
to the complaint, the plaintiff sent the defendant notice of her intention to
file a praecipe for default judgment. The default judgment notice provided
in Oswald stated, in relevant part, “You are in default because you have
failed to take action required of you in this case.” Id. at 796
(emphasis added). The Oswald Court found that this language was
“deficient,” as the notice failed to state “specific reasons why the
defendant is in default.” Id. at 796 (quoting David J. Lane Adver., Inc.,
33 A.3d at 679) (emphasis in the original). The Court concluded that failing
to include specific reasons for the defendant’s default in the notice of default
judgment renders the notice “defective on its face,” as the document is “not
‘substantially’ in the form required by Rule 237.5.” Id. In so holding, the
Oswald Court adopted the reasoning of the Commonwealth Court in David
J. Lane Advertising, wherein it explained:
The general “failed to take action required
of you in this case” language is consistent with
the version of the form in Rule 237.5 predating
a 1994 amendment (Old Form Notice). In the
1994 amendment, which became effective on
July 1, 1995, the Supreme Court chose to
remove this general language in the Old Form
Notice and to substitute the more specific
language in the current form – “failed to enter
a written appearance personally or by attorney
and file in writing with the court your defenses
or objections to the claims set forth against
you.” Indeed, it appears from the explanatory
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comment to the rule that the specific purpose
of the 1994 amendment was to add this more
specific language to the form. The explanatory
comment notes that the purpose of the
modification is to track the language set forth
in Pa.R.C.P. [] 1018.1 for a notice to plead,
which language expressly directs the defendant
to defend by entering an appearance (either
personally or by attorney) and by filing with
the court in writing defenses or objections to
the claims in the complaint. The comment to
Rule 237.5 further provides: “Since the notice
will in many cases be sent to an as yet
unrepresented defendant, repetition of the
notice to defend, in modified form helps to
stimulate action and stem the tide of petitions
to open default judgments.”
In adopting the revision to the form, then,
the Pennsylvania Supreme Court determined
that before entering judgment by default
(which is no insignificant matter), it was
important to notify a defendant specifically
what it failed to do (i.e., why it was in default)
by tracking the language in the earlier-issued
notice to defend. Rather than informing a
defendant that he merely “failed to take action
required by you in this case,” a more specific
notice of why the defendant was in default
that tracks the earlier notice to defend serves
as a reminder to the defendant in many cases
unrepresented at that point, of the defendant’s
specific pleading obligations.
Id. at 678–79 (internal citations omitted; emphasis
in original).
The Commonwealth Court examined the above
legislative and judicial history in the context of its
holding in Township of Chester v. Steuber, [] 456
A.2d 669 ([Pa. Commw.] 1983) and subsequent
amendments to Rule 237.5. Id. at 678–80.
Ultimately, the Commonwealth Court concluded that
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the amendments to Rule 237.5 “impose an
additional notice requirement on a [AmeriChoice]
who wishes to obtain a judgment by default ... the
[AmeriChoice] must now include in the [Ten]–Day
Notice specific reasons why the defendant is in
default.” David J. Lane Advertising, 33 A.3d at
679 (emphasis in original).
Oswald, 80 A.3d at 795-96 (footnote omitted, emphasis in the original).
The Notice provided by AmeriChoice to Homeowners in the case at bar
stated, in relevant part, “You are in default because you have failed to
take action required of you in this case.” AmeriChoice’s Praecipe for
Default Judgment, 6/4/13, at 2 (emphasis added). This is identical to the
language contained in the deficient notice of default judgment provided in
Oswald. See Oswald, 80 A.3d at 796. The record further reflects that
AmeriChoice mailed, together with the Notice, the trial court’s May 1, 2013
order requiring Homeowners to file a responsive pleading to AmeriChoice’s
complaint and the federal district court’s May 23, 2013 order dismissing
Homeowners’ motion to remove the underlying foreclosure action. The
default judgment notice, however, did not reference the trial court’s order in
any manner or explain why AmeriChoice also included the federal district
court’s order. There were simply three separate documents included in a
single envelope.
We disagree with AmeriChoice that the mere inclusion of two court
orders in the mailing that contained the Notice differentiates this case from
the circumstances of Oswald. See AmeriChoice’s Brief at 32-33. Rule
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237.5 provides the information that must be contained in the default
judgment notice itself. See Pa.R.C.P. 237.5. On the face of the Notice in
the case at bar, there is no explanation or reference to the basis for entering
default judgment against Homeowners. There had been numerous filings in
several different courts over the life of this case,4 making the need for
specificity in the default judgment notice all the more necessary.
Furthermore, Homeowners are proceeding pro se in this matter, and thus, “a
more specific notice of why [Homeowners were] in default that tracks the
earlier [order]” would have served as “a reminder” of Homeowners’ “specific
pleading obligations.”5 Oswald, 80 A.3d at 796 (quoting David J. Lane
Adver., Inc., 33 A.3d at 679) (emphasis in the original).
The law is clear that generally, default judgments are disfavored.
Attix v. Lehman, 925 A.2d 864, 866 (Pa. Super. 2007) (citation omitted).
4
The record reflects that Homeowners effectuated filings in Bankruptcy
Court, the United States District Court for the Eastern District of
Pennsylvania, this Court and the Pennsylvania Supreme Court. See Docket
Entries at 1-3; see also N.T., 4/15/15, at 21-23; AmeriChoice’s Exhibits P1-
P16.
5
AmeriChoice contends that “providing [Homeowners] with a default notice
that followed the exact language of Pa.R.C.P. 237.5 would have been
misleading” because Mr. Ross had already entered his appearance on behalf
of Homeowners and they had previously filed preliminary objections in the
matter. AmeriChoice’s Brief at 33. We agree with this conclusion, and
remind AmeriChoice that the law requires a party seeking default judgment
to provide notice “substantially” in the form appearing in Rule 237.5, but
which also states with specificity the precise reason the party risks the entry
of default judgment against them. See Pa.R.C.P. 237.5; Oswald, 80 A.3d
at 796.
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AmeriChoice failed to provide any indication on the face of the Notice of
precisely why default judgment would be entered against Homeowners. This
constitutes a failure to comply with the format contained in Pa.R.C.P. 237.5,
and thus constitutes a violation of Pa.R.C.P. 237.1(a)(2). The inclusion of
two additional orders, without reference thereto in the default judgment
notice, does not cure this defect. “It is well[]established that a record which
reflects a failure to comply with Pa.R.C.P. 237.1 is facially defective and
cannot support a default judgment.” Oswald, 80 A.3d at 796 (citation
omitted). “Furthermore, since the prothonotary lacks authority to enter
judgment under these circumstances, the default judgment would be void ab
initio.” Id. at 797 (citation and italicization omitted). A default judgment
that is void ab initio “must be stricken without regard to the passage of
time.” Id. We therefore reverse the trial court’s order denying
Homeowners’ petition to strike the default judgment entered in this matter
and remand the case for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Musmanno, J. joins the Opinion.
Mundy, J. files a Concurring and Dissenting Statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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