*1 сan identi- appeals tory right file appeals? for reason
fy an economic DAVENPORT, Petitioner
Elmer
v. OF OF COMMON PLEAS
COURT COUNTY,
PHILADELPHIA
Respondent. EM
No. 35 2016. Pennsylvania. Court
Supreme
5,May 2016.
ORDER
PER CURIAM. NOW, May, day
AND 5th Original to File Application Leave GRANTED, the Petition
Process Extraordi- Mandamus Writ and/or DENIED.
nary Relief CREDIT FEDERAL
AMERICHOICE
UNION, Appellee
Raymond D. ROSS Sandra
Dixon-Ross, Appellants.
Superior Pennsylvania. 28, 2015.
Submitted Sept. Dec.
Filed *2 20, 2012, Homeowners, proceeding
June se, preliminary objections to the pro preliminary AmeriChoice filed ob- objections preliminary to Homeowners’ Following oral jections *3 1, argument, May the trial court on sustaining entered an order objections, preliminary denying Home- preliminary objections, requir- owners’ ing to Am- Homeowners file an answer twenty days. eriChoice’s within n 9, 2013, May On requesting motion trial court matter, from all judge recuse vacate matter, by him in entered orders 20, 2013, stay proceedings. May On Homeowners filed notice removal case to the Federal District Court for the Pennsylvania. By or- Eastern- District Ross, Raymond appel- Ross and Sandra 23, May on 2013 and entered der authored lants, pro se. 2013, 29, May trial on in the court’s docket Dethlefs, Hill, Camp for ap- Darrell C. cоurt the federal the case dismissed pellee. jurisdiction lack remanded it proceedings. trial court for further DONOHUE, BEFORE: MUNDY 2013, 23, May On AmeriChoice sent MUSMANNO, JJ. Homeowners written notice its intention DONOHUE, BY OPINION to file a J.: (“the Notice”). The Notice stated: Raymond Dixon- Ross and D. Sandra “Homeowners”) (together, appeal pro Ross IMPORTANT NOTICE April se from order entered by Montgomery County Court Com- IN YOU ARE DEFAULT BECAUSE denying mon Pleas their motion to strike TAKE AC- YOU HAVE FAILED TO in this entered mat- REQUIRED TION IN OF YOU THIS on we ter June conclude Because UNLESS YOU ACT WITHIN CASE. provided by that the notice AmeriChoice (10) TEN FROM THE DATE DAYS (“AmeriChoice”) of Federal Credit Union NOTICE, OF THIS A JUDGMENT its intention obtain default BE MAY YOU ENTERED AGAINST face, on we
was defective reverse the A HEARING AND YOU WITHOUT trial order and remand case for court’s MAY YOUR LOSE PROPERTY OR proceedings. further OTHER IMPORTANT RIGHTS. following perti-
The record reflects YOU TAKE THIS NOTICE SHOULD history to the TO A AT ONCE. IF procedural nent relevant YOU LAWYER 9, 2012, May of this On DO NOT HAVE LAWYER OR resolution ONE, complaint mortgage AFFORD GO TO OR AmeriChoice filed CANNOT THE On TELEPHONE FOLLOWING foreclosure Homeowners: trial setting OFFICE TO FIND WHERE court order the mo- OUT issued HELP: tion for argument, subsequently YOU CAN GET LEGAL but vacat- September ed with- order MONTGOMERY COUNTY LAWYER further, explanation. out On September REFERRAL SERVICE 28, 2014, motion- (Rear) Homeowners filed a seek- Airy 100 West Street ing “expedited and resolu- Norristown, PA 19404 consideration tion” their motion to strike the default 279-9660 ext.
judgment. The trial court entered an or- stating der October that be- Praecipe for Judg- Default suggestion cause Homeowners filed a- ment, 6/4/13, origi- at 2 <17,-2014, bankruptcy on Sеptember nal). Notice, Along with the court would- not rule motions upon 1,2013 included the trial *4 bankruptcy until the stay waá lifted. requiring responsive to a Homeowners file to pleading and Thereafter, continuously Homeowners the federal district order dismiss- requested of previously resolution their Homeowners’, ing to the motion remove to judg- filed motions strike the default 4, 2013, foreclosure action. Am- forms, On June ment in various The record further entry for of еriChoice filed the- reflects that concomitantly Homeowners Homeowners repeatedly sought protection bankrupt- interest, $113,998,57plus counsel fees 9, and 2015, cy April following court. On con- costs, prothonotary the which entered. firmation of the dismissal of Homeowners’ bankruptcy filings, Homeowners filed the 6, 29, 2014,
On June' 2013 and June petition to strike the default that to petitions Homeowners filed strike the , asserting is at'issue this appeal, thаt the 4, judgment.1 June 2013 The record does language compliant not Notice was not reflect that the trial court took Pennsylvania with Rule Rules petitions. action on these On either of- Procedure, by of Civil held previously 6, 2014, July a praecipe Homeowners filed this both Court and the Commonwealth entry permit for the adverse order to an Court. The trial an court entered order determination, appeal to them that but the 16, denying on petition April Homeowners’ court requested lower did enter the “ 2015. denying order their motions to strike. On 21, 2014, July filed in- this Homeowners timely ap- Homeowners filed request permission appeal Court a 6,2013, peal. On filed interlocutory pursuant from quash arguing that: appeal, motion-to Pa.R.A.P.-1311, this Court denied on (1) untimely appeal this is an of- Home- 26, August 2014 because Homeowners’ 6, owners’ June strike the (cid:127) procedural misstep.2 (2) judgment; appeal this constituted “an 14, 2014, September On on this improper collateral attack” Court’s appeal filed a third motion to strike the default resolution of prior Homeowner’s 22, (3) matter; September appeal On taken is numerous, question 1. The record reflects unrelated fil- of law as to which substan- there opinion ings occurred interim. ground tial for difference of and that appeal an immediate from the order Specificаlly, Homeowners failed to' “seek materially advance the ultimate termination 702(b), § pursuant to Pa.C.S. certification matter,’” Order, 8/26/14. i.e., controlling that order ‘involves a pursuant certification judicata; of res ure “seek by the doctrine barred 702(b).” Order, § (4) docketing statement fails Pa.C.S. 8/26/14. Au- 3517. On with' Pa.R.A.P. comply AmeriChoice next claims Ameri- this Court denied gust by prin Homeowners “are also barred prejudice to re- without Choice’s motion they ciple judicata because had res panel. claims the merits raise the before prior petitions judg to strike three prevail where have failed ]ment ap on its.responsive brief filed meritst, was f]inal again raises most peal, AmeriChoice the record on June 2013.” entered on motion, quash arguments contained (italicization Brief at thus, addressing the merits prior omitted). subsequent In order for a action first wheth appeal, we must detеrmine wholly by barred the doctrine res be First, quashed. appeal should be er the judicata, following four must share the Home because AmeriChoice contends (1) judgment: elements with the earlier appeal fails to strict brief owners’ upon; thing being sued same Appellate Pro ly comply the Rules of action; (3) involving same cause cedure, suppress their brief and we should (4) in persons parties; same or quash AmeriChoice’s Brief quаlity capacity parties as the same- appel 9-20. Our of Homeowners’ review Patrick, previously sued. Levitt *5 fail to late brief does con reveals that 581, (Pa.Super.2009). “thing The Appellate form to Rules Proce several being upon” is the motion sued here 2116(a) dure, notably Rule Rule most and judgment strike the default entered this stated, 2119(a). previously we have we As above, 16, prior April As matter. stated upon a quash appeal bаsed only need finally the court never resolved .lower brief if such defects appellate defective petitions the Homeowners’ to strike “impair ability appellate our to conduct judgment, this Court not default and did Powell, Mortgage Corp. v. review.” PHH appeal brought. the merits of the decide (Pa.Super.2014). Be 100 A.3d such, of, judicata res is As the doctrine by manner which wé decide cause inapplicable. case, our оf the case is not this review argues Lastly, AmeriChoice that Home- impeded the defects in Homeowners’ by docketing owners’ statement failed com- brief, quash therefore decline and we ply Pennsylvania with Rule 3517 of the on that appeal basis. Procedure, Appellate they Rules AmeriChoice, plethora vague a of issues a “rais[ed] that further asserts format,” and unclear and raise issues a attack” this constitutes “cоllateral appeal brief on that appeal their were prior “denying on this Court’s decision docketing in the contained statement. previous challenge pe to a [Homeowners’] pro- AmeriChoice’s Brief at 23. Rule 3517 judgment, tition to the default dock strike vides: 90 EDM 2014.” AmeriChoice’s eted at argument. appeal
Brief at 22.' This is a a to the Su- frivolous Whenever filed, perior Prothonotary “final judgment was no on the mer Court There by this Cоurt as form docketing its” entered send a statement shall claims; rather, and appeal completed docketed at shall be returned only within in order that the days 90 EDM Court denied ten request appeal efficiently from an shall to more Homeowners’ be able upon expeditiously fail- administer the sched- interlocutory based their uling argument ty judgment and submission of of the and that entitle the a appeal. petitioner, law, cases on Failure file dock- as a matter of to relief. eting may statement result dismissal fatal defect the face of the record appeal. the prothonotary authority denies enter a prothonotary When Pa.R.A.P. re- 3517. Homeowners quired authority, enters without docketing statement this Court that, judgment is void ab initio. the issue as dis- When decid- raised therein infra, ing if cussed there are fatal defects on we conclude is determinativе. the face Statement, 5/19/15, for Docketing purposes See at 3-4. of peti- record a tion to a quash appeal judgment, We therefore decline to strike default a court this basis as only well. look at what was in the record when the was entered. We now turn to address the merits appeal, On Homeowners Green Acres Rehab. Nursing & Ctr. v. present Sullivan, thirteen issues our review. (Pa.Su- 1267-68 conclude, however, We case is (internal сitations, per.2015) quotation ably by addressing only resolved one: marks, brackets, omitted). and italicization content of Am “Whether the Of to this appeal, relevance [eighty-six]-word Notice eri[C]hoice’s ] [ 237.1(a)(2) prohibits the protho- trial court non-compliant pursuant to Pa.R.C.P. 237.1 notary entering from and Pa.R.C.P. Brief 237.5[.]” party “unless the praecipe at 5.3 entry includes a certification that a written question, notice of intention to reviewing we file the was guided by following: mailed delivered ... after failure plead to days least ten An appeal regarding a prior filing prae- date of the judgment implicates strike *6 cipe party against to the judgment whom Pennsylvania Rules of Civil Procedure. party’s is to be attorney entered and operation regarding proce- Issues of record, any.” if Pa.R.C.P. present dural rules of court us with 237.1(a)(2)(h). Therefore, requires Rule 237.5 questions of law. our stan- 237.1(a)(2) “substantially” notice to comply scope dard review is de novo our following with the format: plenary. review is A petition judgment (CAPTION) to strike a is a common proceeding operates law
as a A petition demurrer to the record. _To: granted strike a be (Defendant) only for a irregularity fatal defect _ Date of Notice: appearing on A the face the record. IMPORTANT NOTICE petition to is not strike a chancе allegations review of a the merits Rather, petition to IN strike YOU ARE DEFAULT BECAUSE
is aimed at that affect FAILED defects the validi- YOU HAVE TO ENTER A 14, 25-26, 3. AmeriChoice contends that Homeowners Choice’s Brief at 28. AmeriChoice however, many upon acknowledges, waived of the issues raised based that Homeowners preserved appeal Homeowners’ failure to raise them before the raised below and trial upon court in their issue which we decide this Id. аt case. 20, 26, strike the default See 'Ameri- 28-29. rely upon argument, APPEARANCE of their PERSON- WRITTEN Assocs., LLC, Square Oswald v. Pub. WB BY ATTORNEY AND FILE ALLY OR City (Pa.Super.2013), 80 A.3d THE COURT IN WITH WRITING Adver., Philadelphia v. David J. Lane OBJECTIONS YOUR OR DEFENSES (Pa.Cmwlth.2011). Inc., 674, 679 33 A.3d THE CLAIMS SET FORTH TO 19-20. Brief at YOU ACT YOU. UNLESS AGAINST Oswald, FROM THE TEN DAYS ac- plaintiff In initiated WITHIN NOTICE, A JUDG- by filing DATE OF THIS a com- tion the defendant ,BE plaint proper MAY ENTERED service. After de- MENT the, respond complaint, .to fendant failed YOU A HEAR- WITHOUT AGAINST plaintiff sent the defendant.notice MAY ING AND YOU YOUR LOSE her intention to file a for default OTHER OR IMPOR- PROPERTY judgment. The default TANT RIGHTS.. stated, provided in in relevant Oswald TAKE PAPER YOU THIS SHOULD you “You in default because part, IF AT TO YOUR ONCE. LAWYER required failed to action take LAWYER, A DO HAVE YOU NOT :GO you in Id. at case.” THE TO OR TELEPHONE OFFICE added). Oswald Court The found FORTH THIS OF- SET BELOW. “deficient,” language was as the notice IN- FICE CAN PROVIDE YOU WITH why “specific to state reasons failed hiring About FORMATION (quot- is in Id. at defendant default.” LAWYER. Adver., Inc., ing David J. Lane HIRE IF YOU AFFORD TO CANNOT 679) (emphasis in the The LAWYER, A THIS OFFICE MAY BE failing specific concluded include IN- ABLE TO YOU PROVIDE WITH reasons the defendant’s default ABOUT AGENCIES FORMATION the no- notice of default renders MAY OFFER SER- THAT LEGAL face,” on its as the docu- tice “defective AT PERSONS VICES TO ELIGIBLE ment ‘substantially’ is í'not FEE OR NO FEE. REDUCED Id, required by hold- 237.5.” so ing, adopted the Oswald Court reason- Office) (Name of ing of the in David Commonwealth Court Advertising, explained:
J. Lane wherein (Address Office) (cid:127) general The “failed to take action *7 language in this
required
you
case”
Number)
the
consistent with
version
the
(Telephone
predating
a 1994
in Rule 237.5
(Old
Notice).
Form
In
amendment
Attorney)
or
(Signature
Plaintiff
amendment,
which
the
became
1,1995,
Supreme
effective on
the
(Address)
general
to
Court chose
removе this
Pa.R.C.P. 237.5.
in
language
the Old Form Notice and
assert that AmeriChoice’s
Homeowners
specific
to
lan-
substitute the more
substantially comply
to
with
Notice failed
in
to
guage
the current form—“failed
237.5,
depriving
Rule
thus
the trial court’s
appearance personally
enter written
authority
of the
to enter 'de-
by
writing
or
in
prothonotary
attorney and file
objections
to
court
or
pursuant
your
fault
Rule 237.1.
the
defenses
against you.”
support
аt
In
to
forth
Homeowners’ Brief
17-21.
the claims set
Indeed,
appears
explanato-
Ultimately,
669].
from the
A.2d
[456
the Com
spe-
to
that the
ry comment
the rule
Court
monwealth
concluded that
purpose
cific
amendment
amendments to
“impose
Rule 237.5
an
this,
specific language
towas
add
more
requirement
additional
notice
on a
com-
explanatory
to the form. The
wishes to
[AmeriChoice] who
obtain a
purpose
ment nоtes
by
...
the [Ameri-
language
is to
modification
track
must
in
Choice]
now include
[Ten]
forth in Pa.R.C.P.
for a
[
set
]
specific
Day
why
Notice
reasons
language
notice to
plead,
ex-
is in
defendant
default.” David J. Lane
pressly
to
directs the defendant
de-
Advertising, 33
at
(emphasis
A.3d
in
(ei-
entering
appearance
fend
by
original),
personally
by attorney)
by
or
ther
Oswald,
(footnote
795-96
omit-
in
filing
writing
with the court
defens-
ted,
in
emphasis
objections
or
to
in
es
the claims
The
comment
to
provided by
The Notice
AmeriChoice to
provides:
237.5 further
no-
“Since the
stated,
Homeowners
at bar
case
many
cases be
to an
tice will
sent
part, “You
relevant
default because
defendant,
yet unrepresented
repe-
as
you
required
have failed to take action
defend,
tition
in modi-
notice
you
in this case.” AmeriChoice’s
form helps to
action and
fied
stimulate
Praeciрe
Judgment, 6/4/13,
for Default
at 2
of petitions
the tide
de-
open
stem
added).
This
identical to the
judgments.”
fault
language contained
the deficient notice
form,
adopting
the revision
judgment provided
of default
in Oswald.
then,
Pennsylvania Supreme
Oswald,
See
1026 omitted). “Furthermore, protho- at since the of the Notice in the case theOn face bar, authority judgment explanation notary or reference lacks enter no there is circumstances, judgment these entering default under default the basis for had been nu- ab initio.” at judgment There would be void Id. against Homeowners. omitted). (citation courts different and italicization filings in several merous case,4 making the need judgmеnt life of this that void ab initio over the default judgment regard no- in default stricken without to the specificity “must be Furthermore, necessary. passage tice all the more Id. We therefore re- time.” denying in this proceeding pro se verse the trial court’s order Homeowners are matter, thus, specific more to strike the default “a why that in this default matter and re- were] entered [Homeowners proceedings. would [order]” tracks the earlier mand the case further of Homeowners’ as “a reminder” served Ju- Order reversed. Case remanded. Oswald, obligations.”5 “specific pleading relinquished. risdiction Lane (quoting at David J. A.3d Inc., 679) Adver., 33 A.3d at MUSMANNO, joins Opinion. J. MUNDY, Concurring J. a files generally, Dissenting
The law is clear that Statement. Attix v. judgments are default disfavored. CONCURRING AND DISSENTING (Pa.Su Lehman, MUNDY, BY J.: STATEMENT omitted). (citation AmeriChoice per.2007) Although agree I Ma- learned any indication on the provide failed to face jority rejecting argu- precisely. why default of the Notice quash appeal, I ments dismiss against Home judgment would be entered agree cannot that trial court erred com a failure to owners. This constitutes denying Appellants’ petition to strike. in Pa.R.C.P. ply with the format contained view, no- my Appellants were on sufficient 237.5, thus constitutes a violation steps they to com- tice to the needed 237.1(a)(2). of two Pa.R.C.P. The inclusion pletе judg- in order to avoid the default orders, there additional without reference Therefore, I respectfully ment. dissent notice, to in the does default Majority’s to reverse decision and re- well[ cure this “It is defect. Established proceedings. for further mand a reflects record which failure a. notes, facially As Majority de comply with Pa.R.C.P. 237.1 support judgment.” its notice intent to cannot default mailed fective and ald, (citation for a file Osw 80 A.3d at previous- behalf of had 4. The that Homeowners effect- record reflects Court, filings Bankruptcy ly preliminary objections United uated in the matter. for the District States District Court Eastern agree with Brief at 33. We Pennsyl- Pennsylvania, this Court and the conclusion, and remind AmeriChoice that Supreme Court. Docket Entries at vania See judg- party seeking requires law 1-3; 21-23; N.T., 4/15/15, Ameri- see also "substantially” provide notice ment to Choice’s P1-P16. Exhibits 237.5, appеaring in Rule but which also precise specificity reason the states with "providing AmeriChoice contends entry party risks the of default that fol- a default notice [Homeowners] with 237.5; Oswald, See Pa.R.C.P. them. language of lowed the exact .Pa.R.C.P. at 796. misleading” been Mr. would have because already appearance had entered his Ross *9 Importantly, copy fol- notice contained the cause it attached to notiсe a lowing language. trial court’s directing Appellants to file an answer within 20
Important Notice days after preliminary overruled their objections. at AmeriChoice’s Brief 33. In you You are in default because view, AmeriChoice’s the “inclusion required you failed to action take [ojrder underlying [c]ourt the default you in this case. act ten Unless within ... [Appellants] notice informed (10) notice, days from the of this date specificity with exact what were re- judgment may against you be entered quired do, leading do failed to hearing you your without lose default,” possibility of Id. at important property rights. or other lawyer You take this notice to a should review, upon my agree Based careful I you or lawyer If do not have a once. with is legally AmeriChoice that Oswald one, go telephone cannot afford distinguishable from the instant case. It following you office to find out where undisputed is that AmeriChoice attached a get help: can legal copy May of the trial court’s 2013 order Montgomery County Lawyer Referral spe notice. The trial court’s order Service cifically responsive to file a directed them (Rear) Airy West Street pleading to Tri Norristown, PA 19404 5/1/13, Therefore, al Court Order at 1. 279-9660 ext. order, through notice and the attached Judg- Praecipe Default Appellants effectively given “specific were ment, 6/4/13, added). at 2 (emphasis At- why [they reasons Os were] default.” copy tached to this notice was a the trial wald, supra (emphases my 1,2013 order, directing court’s Appel- view, application Majority’s Oswald lants to file an answer. at 10. Appel- Id. substance, in this case elevates form over argue lants that AmeriChoice’s Rule 237.5 generally which this Court inclined is not notice non-compliant was because it usеd See generally do. Bonawits v. Bonaw phrase “[y]ou in default because its, 907 A.2d (Pa.Super.2006). you required have failed action take Rather, the “failed to language use you Praecipe this case.” AmeriChoice’s required you,” with coupled take action Judgment, 6/4/13, for Default at 2. theAs unequivo the attachment of the order that observes, Majority correctly this Court has cally Appellants directed to file answer held that use of language such does complaint, complied substantially comply and is a fatal requirements. with Rule 237.5’s record, defect the face because foregoing, Ap- I conclude Based plaintiff required pellants are not entitled relief on “specific reasons give why the defendant Accordingly, I affirm the trial would Square in default.” Oswald Pub. v. WB 16,2015 April I respectfully order. (Pa.Su- Assocs., LLC, dissent. per.2013) (emphases original), quoting Adver., City Phila. David J. Lane Inc., (Pa.Cmwlth.2011)
(en banc). argues Oswald is le-
gally distinguishable from this ease be-