J-S63017-15

2015 PA Super 254

AMERICHOICE FEDERAL CREDIT 

UNION,

:

:

IN THE SUPERIOR COURT OF

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