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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J-S63017-15


      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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J-S63017-15


           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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J-S63017-15


      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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J-S63017-15


            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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