Americhoice Fed. Credit Union v. Ross, R. ( 2015 )

J-S63017-15
2015 PA Super 254AMERICHOICE 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
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-CV-12383
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
CONCURRING AND DISSENTING STATEMENT BY MUNDY, J.:
FILED DECEMBER 07, 2015
Although I agree with the learned Majority in rejecting Americhoice’s
arguments to quash or dismiss this appeal, I cannot agree that the trial
court erred in denying Appellants’ petition to strike. In my view, Appellants
were on sufficient notice as to the steps they needed to complete in order to
avoid the default judgment. Therefore, I respectfully dissent to the
Majority’s decision to reverse and remand for further proceedings.
As the Majority notes, on May 23, 2013, Americhoice mailed its notice
of intent to file a praecipe for a default judgment. Importantly, the notice
contained the following language.
Important Notice
J-S63017-15
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 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
added). Attached to this notice was a copy of the trial court’s May 1, 2013
order, directing Appellants to file an answer. Id. at 10. Appellants argue
that Americhoice’s Rule 237.5 notice was non-compliant because it used the
phrase “[y]ou 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. As the Majority correctly observes, this Court has held that the use of
such language does not comply with Rule 237.5 and is a fatal defect on the
face of the record, because the plaintiff is required in the notice to give
“specific reasons why the defendant is in default.” Oswald v. WB Pub.
Square Assocs., LLC, 80 A.3d 790, 796 (Pa. Super. 2013) (emphases in
original), quoting City of Phila. v. David J. Lane Adver., Inc., 33 A.3d
674, 679 (Pa. Cmwlth. 2011) (en banc).
Americhoice argues that Oswald is legally distinguishable from this
case because it attached to its notice a copy of the trial court’s order
-2-
J-S63017-15
directing Appellants to file an answer to the complaint within 20 days after it
overruled their preliminary objections. Americhoice’s Brief at 33. In
Americhoice’s view, the “inclusion of the underlying [o]rder of [c]ourt in the
default judgment notice … informed [Appellants] with exact specificity what
they were required to do and failed to do, leading to the possibility of
default.” Id. at 34.
Based upon my careful review, I agree with Americhoice that Oswald
is legally distinguishable from the instant case. It is undisputed that
Americhoice attached a copy of the trial court’s May 1, 2013 order to the
notice. The trial court’s order specifically directed them to file a responsive
pleading to Americhoice’s complaint. Trial Court Order 5/1/13, at 1.
Therefore, through the notice and the attached order, Appellants were
effectively given “specific reasons why [they were] in default.” Oswald,
supra (emphases in original). In my view, the Majority’s application of
Oswald in this case elevates form over substance, which this Court is
generally not inclined to do. See generally Bonawits v. Bonawits, 907
A.2d 611, 617 (Pa. Super. 2006). Rather, the use of the language “failed to
take action required of you,” coupled with the attachment of the order that
unequivocally directed Appellants to file an answer to the complaint,
substantially complied with Rule 237.5’s requirements.
-3-
J-S63017-15
Based on the foregoing, I conclude Appellants are not entitled to relief
on appeal. Accordingly, I would affirm the trial court’s April 16, 2015 order.
I respectfully dissent.
-4-